newsletter – job references

Posted on October 26, 2010 by Martin Malone

As is well known there is no general rule that an employer must give a reference for an (ex-)employee, but if he does give one he must take reasonable care to ensure that it is fair. A case at the end of September in the Employment Appeal Tribunal shows how important it can be to take care when giving a reference for an ex-employee.

Solicitor Ms Bullimore was employed by a firm of solicitors from 1999 to 2004. After she left she claimed unfair dismissal and sex discrimination and an “out of court” settlement was agreed. She then got a job with another law firm, the first one providing a “bland reference”.

Some four years later she was made redundant and was offered a job by a third firm of solicitors, subject to receipt of satisfactory references. The first firm provided a reference but this time included a number of negative comments about Ms Bullimore. Specifically the reference noted that she had brought employment tribunal proceedings against the first firm. It also referred to her poor relationship with the partners and said that “she could on occasion be inflexible as to her opinions”. As a result of this reference the third firm changed its job offer to include a six month probationary period. Ms Bullimore was not happy with this and the resulting impasse led effectively to the job offer being withdrawn.

Ms Bullimore then sued both firms of solicitors and the individual partner in the first firm who had given the reference. She settled her claim against the firm which had withdrawn its job offer (for a substantial sum – £42,500) but her claim against the first firm, and the individual partner who had provided the reference, went to an employment tribunal. She won, essentially on the basis that she had been victimised for having brought a sex discrimination claim and the tribunal awarded her £7,500 for injury to feelings.

Ms Bullimore was not satisfied with the £7,500 and appealed to the EAT. Although the EAT refused to increase the award for injury to feelings it referred the case back to the employment tribunal to consider an award for loss of earnings, rejecting the first firm of solicitor’s argument that the damage was too “remote” for them to be liable. The EAT stated that, as a matter of principle, “When an adverse reference, given for an illegitimate reason, leads to an employer deciding not to make, or to withdraw, an offer to a candidate it is hard to see why that consequence should be regarded as too remote to attract compensation from the giver of the reference …”.

There was one crumb of comfort for employers in that the President of the EAT noted that the original employment tribunal’s conclusion “might, without reference to the detailed facts, seems rather harsh: the position of employers who are asked for references for employees with whom they have fallen out is a very delicate one…”. Nevertheless the overriding message for employers is to take great care when providing a reference for an ex-employee.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – right to request flexible working

Posted on October 26, 2010 by Martin Malone

The Coalition government has announced two “family friendly” employment law proposals, following a commitment in the Coalition’s “programme for government” which stated:

We will extend the right to request flexible working to all employees, consulting with business on how best to do so” and “We will encourage shared parenting from the earliest stages of pregnancy including the promotion of a system of flexible parental leave”.

An article by Ed Milliband in the Daily Mirror in early July said “let’s give every employee the right to flexible working” – so the first of these proposals seems to be non-controversial, at least at a political level.

The two immediate proposals are:

The right to request flexible working arrangements. Since April 2003, parents and others (such as guardians) with responsibility for caring for children have had the legal right to ensure that requests they make for flexible working arrangements (such as part-time work or working from home) are taken seriously by their employers. The request must be to enable the employee to care for the child and an important condition is that the employee must have been employed in his job for at least 6 months to be eligible. In April 2007 the right was extended so that carers of certain people other than children could claim the right.
Originally the child concerned had to be aged under 6 (or 18 if disabled). In April 2009 the age 6 limit for children was raised to 17. On 30 September 2010, the government announced that the child age limit is to be raised further to 18 with effect from April 2011. Official figures suggest that just under 290,000 additional employees will be eligible to benefit.
A consultation on implementing in full the parts of the Coalition “programme for government” noted above. Also on 30 September 2010, the government announced that a consultation will be launched “later this year” to look at how best to extend the right to request flexible working to all employees and also to consider “the design of a new system of flexible parental leave”.
The government has confirmed that in the meantime the Additional Paternity Leave regulations implemented in April 2010 will “remain in force as an interim measure for encouraging shared parenting from the earliest stages of pregnancy”. These regulations have effect for parents of children due on or after 3 April 2011. New mothers will have the right to transfer the second half of their year-long maternity leave entitlement to the father. The father will have the right to up to six months extra paternity leave once the mother has returned to work and to the extent that he takes this extra leave during the mother’s maternity pay period, he will qualify to receive what is in effect the balance of her Statutory Maternity Pay entitlement.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – positive discrimination

Posted on October 26, 2010 by Martin Malone

As a general rule, positive discrimination in favour of a particular category of persons involves discrimination against those not in that category. Depending on the particular situation, positive discrimination in favour of one category of persons is therefore likely to be unlawful discrimination against others.

The Equality Act allows what it calls “positive action” in some situations. It covers permitted positive action in two separate sections. One essentially restates previous law and came into force on 1 October. The other relates to recruitment and promotion, is new and is not yet in force – the coalition government is still considering whether or not to bring it into force.

The section which came into force on 1 October 2010 ensures that “positive action” is lawful if it is a proportionate way of achieving defined aims, essentially alleviation of disadvantage experienced by people sharing any of the “protected characteristics”, viz age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation. In essence this goes very little, if any, further than previous law.

The section which is not yet in force will, if and when it is implemented, allow an employer to take these “protected characteristics” into account in selecting to whom to offer a post if (i) people having the same protected characteristic are at a disadvantage or are under-represented and (ii) the candidates are each as qualified as the other(s). It covers not only employees and prospective employees but also applicants for contract work, prospective partners in a firm (including LLPs) and applicants for pupillage or tenancy in barristers’ chambers and so on.

Apart from these general provisions, the Equality Act 2010 also allows, as did previous law, positive discrimination in favour of the disabled. Further, as noted above in the note in this newsletter concerned with health questionnaires, the Act provides an exception from the normal ban on employers asking “pre-employment offer” health questions if positive action is appropriate for example in making arrangements for interviewing a disabled job applicant.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – pre-employment health questions

Posted on October 26, 2010 by Martin Malone

With a few necessary exceptions the Equality Act 2010 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant’s health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. Also merely asking the question may give the Equality and Human Rights Commission power to investigate and issue an “unlawful act notice”.

The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be deprecated.

There are 3 points to make in connection with the above:

this provision does not apply once an offer of work has been made. Making an offer of work subject to a satisfactory medical is therefore perfectly in order;
in practice the provision is unlikely to make much difference to the eventual outcome of most cases which go as far as an employment tribunal. The Equality Act 2010 shifts the burden of proof to the prospective employer to disprove discrimination if an unsuccessful job applicant makes a complaint to an employment tribunal that his job application was rejected because of a reply to a “pre-job offer” health related question. However in practice, in the vast majority of cases under previous law, it is likely that a tribunal would have come to the same ultimate conclusion;
the Equality Act 2010 specifies five situations when it is in order for a prospective employer to ask health related questions of a prospective employee. These are essentially where:

(a) questions are asked to ascertain whether any reasonable adjustments will have to be made to enable the job applicant to attend an interview;
(b) questions are asked to establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned;
(c) questions are asked for “monitoring diversity in the range of persons” applying to the employer for work;
(d) positive action is to be taken, where that is allowed (see the next newsletter blog post);
(e) having a particular disability is an occupational requirement for the job, provided that is a proportionate means of achieving a legitimate aim.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – pay secrecy clauses

Posted on October 26, 2010 by Martin Malone

The official June 2008 White Paper on the Equality Bill said that it would “ban pay secrecy and ‘gagging’ clauses which stop employees discussing pay with their colleagues”. The idea, of course, was to remove one of the practical difficulties sometimes faced by employees (generally women) seeking to bring equal pay claims on the basis that they are paid less than employees of the other sex who have been doing the same work, work of equal value or work rated as equivalent.

As eventually enacted the Equality Act 2010 does not do what the White Paper said. The basic idea is still there but the wording means that implementation of the idea is considerably more complicated than the simple wording of the White Paper suggested it would be.

On the other hand the Equality Act goes further than the extract above from the 2008 White Paper might suggest as it covers discussion of pay with third parties as well as with colleagues. Also it makes it unlawful for an employer to victimise an employee for seeking to enforce the rights it provides.

The most important difference between the original simple proposal and the eventual enactment is that the final version applies only in so far as the employee “makes or seeks to make a relevant pay disclosure”. This is defined as a disclosure “… made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having)…” any of the protected characteristics covered by the Act.

It is easy to see that this definition may lead to some difficulties. A pay disclosure is “relevant” only if it is made for the specified purpose. If it was made from some other purpose the Act will apparently not apply even if the information disclosed is later used for the specified purpose.

Separately but also connected with removing difficulties in the way of employees bringing equal pay claims, the Equality Act provides specific encouragement in the shape of informal “threat” of compulsion if encouragement has not worked by 2013 for larger employers (those with 250 or more employees) to publish information about differences in pay between male and female staff.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – dual discrimination

Posted on October 26, 2010 by Martin Malone

Arlene Phillips, one of the judges on TV’s “Strictly Come Dancing” was aged 66 when she was not reappointed. Neither her age nor her sex on their own was the reason for her non-reappointment – this was provable from the fact that another judge was 65 and yet another judge was female. Under the law at the time (making other assumptions) she would not have been able to win either an age discrimination or a sex discrimination claim as each claim would have had to be considered separately. Neither claim could stand up on its own and so she, or at least an employee in a similar position, would have lost a discrimination claim. However on the basis that the reason for the refusal to reappoint her was combination of her age and her sex, the new “dual discrimination” provision in the Equality Act 2010 could make the situation different.

This particular provision of the Equality Act 2010 has not been brought into force on 1 October 2010, so the law in this respect is currently unchanged. However when the relevant section is brought into force a person in the position outline above would be able to bring a claim as a “dual discrimination claim”. Any two of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation will then be eligible to be combined into a free-standing “dual discrimination” claim. Currently it is thought that likely that this provision will come into force in April 2011, but this is subject to confirmation and is still uncertain.

It should be noted that there is nothing to prevent an employee in an appropriate situation from bringing separate “single strand” discrimination claims as well as a “dual discrimination” claim basing all three claims on the same protected characteristics.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter Equality Act 2010 – disability discrimination

Posted on October 26, 2010 by Martin Malone

As noted in a previous newsletter blog post the substance of previous law making it unlawful to discriminate against a person in the employment field because of disability remains generally unchanged by the Equality Act 2010. However various detailed changes are probably more significant if the “protected characteristic” is disability than if it is one of the other eight protected characteristics.

Firstly, “comparators”. As a matter of commonsense, “discrimination” involves making comparisons. In 2008 the House of Lords identified a particular problem in selecting the appropriate person with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. Obviously the comparison should be with a fit person, but which fit person? In simple terms, in the employment field, if a person was unable to come to work because of a disability and was dismissed for non-attendance, should his/her position be compared with (i) that of a fit person who, being fit, would not have been absent from work (and so would not have been dismissed) or should his/her position be compared with (ii) that of a fit person who was dismissed for non-attendance? If it were (i) the disabled person would have been discriminated against; if it were (ii) there would have been no discrimination as the disabled person would have been treated in exactly the same way as the fit person.

Those interested in the detail may like to look at the judgment in London Borough of Lewisham v Malcolm HL 2008 but the important point for present purposes is that the Equality Act 2010 simply sweeps away the problem. The position from 1 October 2010 is simply that “A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”. The result is a special category of “disability-related discrimination”, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator.

Thus it is now clear that in the above example the disabled person would, all else being equal, win a disability discrimination claim under the Equality Act 2010.

Secondly, the meaning of “disability”. In general the meaning of “disability” for Equality Act 2010 purposes is very similar to that used previously – it means a physical or mental impairment which “has a substantial and long-term adverse effect” on a person’s “ability to carry out normal day to day activities”. There are a couple of minor changes to the definition, one for the benefit of cancer sufferers and the other concerning what is meant by “normal day to day activities” but these are unlikely to make much practical difference. A change which will make a practical difference, albeit perhaps not in very many cases, is that a child aged under 6 will qualify as suffering from a disability regardless of whether their disability affects their normal day to day activities, provided of course that they satisfy the other conditions required to qualify – this is likely to be particularly relevant in the context of alleged “associative discrimination” against an employee who is a carer of a small child (as to which see the earlier newsletter blog post).

Thirdly, pre-employment health enquiries are generally banned as from 1 October 2010. This point is covered in more detail in the following blog post concerning pre-employment health questions.

Fourthly, indirect discrimination applies in disability cases from 1 October 2010. In practice it should be generally possible for an employer to avoid liability if he makes an appropriate reasonable adjustment once he has become aware of the employee’s disability.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – compromise agreements

Posted on October 26, 2010 by Martin Malone

The general rule is that informal “out of court settlements” of employment disputes are not legally binding in the sense that they cannot exclude an employee’s right to take the matter concerned to an Employment Tribunal. As is well known, one exception to this general rule is a formal “compromise agreement”. Provided it complies with conditions set out in the Employment Rights Act 1996, a formal compromise agreement settling an employment dispute will normally be fully binding on both parties.

The main conditions which must be fulfilled are:-

that the agreement must be in writing;
that the employee must have received advice from an approved independent adviser; and
that the agreement must relate to “particular proceedings”.

This last condition means that a generalised “full and final settlement” agreement cannot be a fully valid compromise agreement (a few years ago the government said it was going to remove this condition but it is still there – and there is no sign of it being removed: those interested may care to look at Hansard HL 30th April 2002, col 572).

An important practical point following the repeal/revocation of previous anti-discrimination legislation by the Equality Act 2010 is that any compromise agreement made after 1st October 2010 should generally ensure that it specifically refers to settling any claims under Equality Act 2010. Of course if, as will generally be the case for many months/years to come, the employment concerned began before 1st October 2010 it should also refer to the previous legislation which will continue to apply in respect of claims arising from events which took place before 1st October 2010.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 overview

Posted on October 26, 2010 by Martin Malone

Important legislation such as the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 are all repealed (and replaced) and regulations such as the Employment Equality (Age) Regulations 2006, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 are all revoked (and replaced).

The Equality Act 2010 replaces these previous anti-discrimination Acts and regulations with one single Act. It uses different wording and some different concepts from those used previously but makes only a few changes to the substance of existing law. This harmonisation (or maybe “Harmanisation” given the name of the Minister in charge of getting the Act through Parliament on 8th April, in the nick of time before dissolution) can only be welcome and getting it done is an impressive achievement.

The official Equality Act Impact Assessment says that “In the first year, the Equality Act is estimated to cost between £240.9m and £282.6m. This represents the cost of people making themselves familiar with the new law and one-off implementation costs of the Act” (the impact assessment also suggest that in the same year the Act could produce “benefits in the range of £101.6m to £133.6m”). HR departments and employers generally will have to review policies, contracts, job application forms and recruitment processes.

An important conceptual change is the introduction of the idea of “protected characteristics” ((i) age, (ii) disability, (iii) gender reassignment, (iv) marriage and civil partnership, (v) pregnancy and maternity, (vi) race (defined to include colour, nationality and ethnic or national origins), (vii) religion or belief, (viii) sex (ie gender) and (ix) sexual orientation). This change underlies the whole Act. It is important both as a matter of terminology and of “focus” which now centres on the protected characteristic rather than on the protected person. One result is that in general it no longer matters whether the “victim” of less favourable (ie discriminatory) treatment possesses the protected characteristic. Instead what now matters is whether the less favourable treatment is because of a protected characteristic, regardless of who it is possessed by. Thus what is sometimes called “associative discrimination” is now generally unlawful by statute (unless, in some cases, it can be justified) – for example discrimination against a fit employee because they have taken time of work to look after a disabled or elderly person is now generally unlawful by statute and ingenious legal arguments which led to contortions by tribunals attempting to achieve this result under the now repealed legislation are thus no longer relevant.

The Act outlaws various types of behaviour which take place because of one or more of the protected characteristics, as follows: direct (including associative and perceived) discrimination, indirect discrimination, a special category of “disability related discrimination”, harassment (including third party harassment) and victimisation.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.