Q2 2009 Legal Update

The Equality Bill is currently going through Parliament and is due to come in to force in autumn 2010. Its aim is to bring together all existing legislation concerning discrimination on the grounds of sex, race, disability, sexual orientation, religion or belief and age. It will also expand protection against discrimination for age, sexual orientation, religion or belief and gender reassignment.

The Bill has been amended to include a clause dealing with "combined discrimination". This is where a claim for direct discrimination can be brought combining two separate protected characteristics: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Rather contentiously, the Bill will allow employers to use positive discrimination in their recruitment and promotion practices. If there are two candidates for one role who are “as qualified” as each other, the employer may choose to recruit the candidate with a protected characteristic. But the employer must have a reasonable belief the individual is from a protected group that is under-represented or disadvantaged.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010
The Government proposes to introduce a new Fit Note to replace the current medical certificate. The problem with the traditional sick note was that you were either well enough to work or you were not. The Fit Note will encourage GPs to change the focus of their advice to the sort of things that people are able to do rather than emphasising what they cannot do. If the employee cannot work, then the new Fit Note will explain what their employers can do to encourage them back into work. It is anticipated that the Fit Note will be rolled out for use from spring 2010.

Action to Improve Diversity in Public Appointments
51% of the population is female and yet only 33.3% of public appointments are filled by women. To counter this, Harriet Harman the Minister for Women and Equality, launched a new cross government drive to increase the number of women, black, Asian and minority ethnic people and disabled people on the boards of public bodies. This will include measures such as mentoring and raising awareness, in addition to setting targets on gender, disability and ethnicity.


EU LEGISLATION

Proposal for Revised Directive on Maternity Leave

The European Commission is currently considering amending the Pregnant Workers Directive. If the amendments are passed, effects in the UK will be:
1. there is unlikely to be any effect on  statutory maternity pay (“SMP”). The UK government is seeking clarification as to whether the Directive’s provisions refer to contractual or statutory pay. If the former this could see maternity pay aligned with contractual sick pay for the first 18 weeks of maternity leave.
2. the compulsory maternity leave period will increase from two to six weeks.
3. right to request flexible working on return from maternity leave. At present in the UK, only parents of a child under 6 (or 18 if disabled) may request flexible working.  

Revised Directive for Self-Employed Women
The new Directive will cover self employed workers as well as their assisting spouses or life partners as both contribute to the business. Self-employed women will have a right to maternity leave and Member States must ensure they receive a maternity allowance at least equal to sick pay. Or alternatively to the allowance, Member States will enable female self-employed workers and assisting spouses to have access as far as possible to services supplying temporary replacements or to any existing national social services.

The proposal has had its first debate before the European Parliament on 6th May but is still in the process of discussion and amendment. Once passed, Member States will have two years to give effect to the new Directive.

Amendment of the Parental Leave Directive
The Parental Leave Directive requires employers in Member States to allow employees at least three months unpaid leave on the birth of the child. In the UK, the Directive has been implemented to the effect that parents are allowed to take up to 13 weeks' unpaid parental leave for each child before their fifth birthday (or eighteenth birthday if a disabled child).

There is now a proposal to amend the Parental Leave Directive and increase the duration to four months. The proposal will also give employees returning to work the right to request changes in their working hours or other working conditions. It also guarantees that employees will not be subject to unfavourable treatment because they exercise their parental leave rights.

EU Recommendation on Directors’ Remuneration
The Recommendation introduces principles on remuneration policies in order to reduce perverse incentives, allow shareholders more input into a director’s salary and bonus and to encourage companies to structure a director’s remuneration so that the director gives more thought to ensure medium to long term sustainability of the company and to move away from the culture of rewarding failure.

A Recommendation is not legally binding on the Member States but suggests best practices that could be adopted. The EU will monitor the application of this Recommendation and produce a report after a year. 

Is length of service as a redundancy criterion age discriminatory?
Rolls Royce Plc v Unite the Union
Rolls Royce and Unite had negotiated collective agreements which provided that length of service could be included within the selection criteria for a redundancy process. Rolls Royce wished to have a more flexible selection process in order to retain employees who would meet current business needs.

The Court of Appeal also noted that length of service was only one of several selection criteria and by no means the most important one and upheld the criterion as pursuing a legitimate aim of having a fair and agreed redundancy process as well as rewarding experience and encouraging loyalty. However, it was suggested that if the redundancy selection criteria had instead included a criteria of “last in first out” the court may have found that objectionable.

Comparators
Carl v University of Sheffield
A part-time university employee brought a claim that she was not paid at the same level when comparing herself to a full time lecturer. The full time lecturer was paid for preparation time whereas Mrs Carl was not. Mrs Carl also compared herself to a hypothetical “generic teacher” comparator on a full-time contract.

It was held that given the level of qualifications, skills and experience required for the two lecturer roles were so different, the roles could not be considered as even broadly similar and therefore Mrs Carl could not use the lecturer as a comparator.

The Tribunal also made the point that following the 2008 case of Sharma and others v Manchester City Council, under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 a claimant’s part-time status does not necessarily have to be the sole reason for the discriminatory treatment but it must be the main cause of the less favourable treatment.

Dumfries and Galloway Council v North & others
244 classroom assistants, support for nursing assistants and nursery nurses employed by Dumfries and Galloway Council brought equal pay claims. They sought to compare themselves to a number of male workers employed by the Council as road workers, groundsmen, refuse drivers, refuse collectors and a leisure attendant.

The judge considered that where a woman seeks to use a male comparator who is not employed at her establishment, she must show there is a real possibility of him being employed there in the job he carries out or in a broadly similar job. The judge found in this case there was no evidence that these jobs would ever exist in these schools.