Q3 2008 Legal Update

The Single Equality Bill
Minister for Equality and Women, Harriet Harman, recently unveiled a draft Equality Bill which is expected to be implemented in this autumn’s Queen’s speech.  

Primary objectives include:

• Extension of the existing requirement on public authorities to tackle discrimination and promote equality for race, disability and gender to include gender reassignment, age, sexual orientation and religion.
• Outlawing unjustifiable age discrimination.
• Increasing transparency by requiring public bodies to report on gender pay, ethnic minority employment and disability employment. The private sector will also see increased transparency with the publishing of evidence on the effectiveness of equal pay audits in closing the gender pay gap. “Gagging clauses" preventing employees from comparing their wages, will be banned.
• Extending positive action by allowing employers to take into account, when selecting between two equally qualified candidates, under-representation of disadvantaged groups such as women.
• Strengthening enforcement by allowing tribunals to make wider recommendations in discrimination cases so there are benefits for the rest of the workforce of the accused employer.    

This single Bill will “declutter” 40 years of discrimination law contained in nine pieces of legislation, as well as statutory instruments, rules and regulations and statutory codes of practice.  

Agency Workers
Joint declaration by Government, the Confederation of British Industry (CBI) and the Trades Union Congress (TUC)
The Government has agreed a deal between unions and employers that will see agency workers in the UK receive equal treatment after 12 weeks employment. The Government believes this deal can pave the way to reaching agreement in Europe on an agency workers directive that secures this flexibility for the UK. The agreement will ensure fairer treatment for agency workers, while not removing the important flexibility that agency work can offer both employers and workers.

Working time and conditions for agency workers
Ministers have secured an agreement on the Working Time Directive and the proposed Agency Workers Directive at the EU Employment Council that will allow UK workers to continue to choose to work longer than 48 hours a week. The standard maximum limit will remain at 48 working hours per week unless a worker opts out but a protective limit of 60 hours for workers that opt-out will remain. Opt-out is permitted only under certain conditions.

The Agency Directive provides for equal treatment as of day one for temporary workers as regular workers in terms of pay, maternity leave and leave, the possibility of derogation through collective agreements and equal access to collective facilities.

Consistent Group Ltd v Kalwak and ors.
Claimants were not employees of agency
A tribunal’s decision that staff supplied by an agency to work for a third party were employees of that agency was remitted for rehearing to another tribunal. In so concluding, the Court of Appeal held that the employment judge had failed to give sufficient reasons as to why a key term in the contract between the parties describing the staff as self-employed was a sham, nor explained why it had been necessary to imply a term into the contract that the agency was bound to provide the staff with work.

Equal Pay
Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley
A claim for equal pay to that of a successor has been rejected by the Employment Appeal Tribunal (EAT).  Article 141 of the EC Treaty on the principle of equal pay for equal work does not allow for a female employee to claim equal pay with a more highly paid male successor. A comparison with a successor, which involves making speculative assumptions as to what the man would have earned had he been employed at the same time, is akin to using a hypothetical comparator, which is not permitted under European law.

Cumbria County Council v Dow and ors
The EAT have held that a tribunal was entitled to find that a Council’s bonus scheme was tainted by sex discrimination, and that, given that the scheme had ceased to be properly applied, it was not a proportionate means of achieving the legitimate aim of improving productivity. The female workers, who were employed as cleaners, kitchen assistants and carers, were not able to benefit from the bonus scheme as their male comparators, who worked as road workers and ground maintenance workers, were able to. The tribunal concluded that there was a disparate impact upon female workers and was not satisfied that the different treatment with respect to bonuses was wholly untainted by sex discrimination.

Part-time Workers
Equal treatment for part-time workers
A part-time worker has the right not to be treated by his or her employer less favourably than the employer treats a comparable full-time worker as regard the terms of his or her contract, or by being subject to any other detriment. In Sharma v Manchester City Counsel, the EAT held that the existence and the exercise of a term in part-time workers’ contracts which allowed the employer to reduce their hours by two thirds, and which did not appear in the contracts of comparable full-time workers, infringed the Part-time Workers (Prevention of Less Favourable Treatment) Regulations.

Sex Discrimination
Fund manager in £19m sex claim
A top City lawyer may be in line for a record payout after an appeals tribunal backed her sex discrimination claim. Gill Switalski is seeking £19m ($38m) from fund manager F&C Asset Management for subjecting her to what she describes as an 18-month campaign of bullying and harassment. Her employer had repeatedly questioned her requests for flexible working arrangements to care for her disabled children; she was excluded from senior management meetings and was subjected to unfair treatment. A remedies hearing is to be held this month to determine damages.