equality reporting: how many employers will voluntarily "think, act and report"?

In the context of recent reports from the Equality and Human Rights Commission and Chartered Management Institute that it will take 70 years and 98 years, respectively, for women to be equally represented in positions of power and to achieve pay equality at senior levels, some might think that strong measures to address pay inequality are overdue. Moreover, both reports emphasise the business case for pay equality, and not just the issue of fairness.

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employment tribunal claims: do the latest changes really take account of the “human factor”?

You know that moment when someone voices something you’ve been thinking for a while? Lord Justice Mummery hit the nail on the head for many who have experience of the employment tribunal system in Gayle v Sandwell and West Birmingham Hospitals NHS Trust when he responded to criticisms about how long the case had taken to progress through the system and how much money had been spent on it.
On the face of it, the criticism was a fair one – the claimant unsuccessfully appealed twice after being unsuccessful in her claim that she was unfairly dismissed for taking unauthorised time off for union duties at a three week hearing, with the final decision being made nearly five years after the events in question. But as Lord Justice Mummery made clear, this case was very much the exception to the rule; few tribunal cases last longer than a day or two; still fewer go to one level of appeal, let alone two, and he pointed out that there are a range of reasons why cases such as this one take a long time to resolve. In particular, he remarked that it is difficult to achieve a speedy, inexpensive outcome where one or more party to the proceedings is determined to take every point of law, evidence and procedure.

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indirect discrimination justified by expense alone

The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.

Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave.

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family unfriendly?

McGrigors is one the leading UK-based law firms with offices in London, Edinburgh, Glasgow, Belfast, Aberdeen, Manchester, Qatar and Falkland Islands. It describes itself as one of the UK’s most dynamic law firms and reports in a recent press release that it has signed a commitment to widen access to the legal profession.

However, in a firm-wide memo issued on 13 September, staff were informed that it is commencing a consultation on paying bonuses to mothers who return to work and reducing pay for mothers who take a second maternity leave within 18 months from their last one.

It also plans to reduce long term sickness benefits.

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social networking guidance from ACAS

In our May newsletter we announced that, like many employers, 2011 has seen us expand into the world of social networking with Twitter, Facebook and LinkedIn pages.

In June I wrote about cases which have resulted from the use of social media and informed subscribers about the social media policy which we have added to our library of template documents.

ACAS has now endorsed this approach with guidance published for employers about dealing with social networking.

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unfair dismissal as a result of claiming to have been unfairly dismissed

The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.

Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”.

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“factually” incorrect but still discrimination

A Leeds employment tribunal has ruled that a Polish worker who was routinely called Borat by a work colleague over a four week period was subjected to race discrimination.

Adrian Ruda joined TEi in Wakefield as a quality assurance engineer. In 2010 he brought a number of claims against his employer, alleging race and sexual orientation discrimination. Most were dismissed by the tribunal which found Mr Ruda’s evidence to be “less than persuasive and less than honest”. However, the complaint that he was called Borat was upheld. This meant that he was subjected to a humiliating and degrading working environment and he was also a victim of direct race discrimination.

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end of compulsory retirement, but..?

In April 2011 my colleague Kath Kelly wrote an article about the end of the statutory retirement age and highlighted some possible alternatives. The time is now upon us because this Friday 30 September is the last date on which notice given last April can take effect. Consequently, any attempts to impose compulsory retirement after this date and based on the state retirement age will be ineffective as well as being potentially discriminatory and constituting unfair dismissal.

However, Kath also highlighted possible alternatives to statutory retirement and one of these is an employer justified retirement age. Clarification in this respect has been provided by the European Court in the case of Prigge -v- Lufthansa.

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extension of flexible working rights

The Government has made clear for some time its intention to extend the right to request flexible working to most employees rather than just those who having caring responsibilities.

In September 2010 the Department for Business Innovation and Skills announced an intention to extend flexible working rights to all parents of children under 18 from April 2011 (covering a further 300,000 employees) and plans to roll out the rights to all employees. Extension of the rights would be accompanied with a new and simplified system for requesting parental leave.

However the April 2011 change was postponed. The reason given by the Government was the economic climate but it was made clear that the widening of entitlement remained firmly on its agenda (in accordance with the Coalition Agreement).

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