Associative Pregnancy Discrimination

In Kulikaoskas v MacDuff Shellfish, the EAT has held that it is not possible for a man to bring a claim of "associative" pregnancy discrimination.

Before the Equality Act 2010 came into force on 1 October 2010, the law in Great Britain on associative discrimination was inconsistent across the different discrimination strands. Whilst under the Race Relations Act 1976 it was unlawful to treat an employee less favourably because of the race of a third party, associative discrimination was, generally speaking, not unlawful.

However, the domestic discrimination legislation had to be read in the light of European law. In Coleman v Attridge Law, Mrs Coleman was forced to quit her job after she requested time off to look after her four-year-old disabled son. Following decisions of the ECJ and the EAT, it was held that direct disability discrimination could arise where a person is treated less favourably because of the disability of a third party (e.g, Mrs Coleman’s son).

In Kulikaoskas, the Claimant and his partner were both dismissed from their employment after less than three weeks in the job. Mr Kulikaoskas alleged that he had been dismissed because of his partner’s pregnancy. He bought a claim under s3A of the Sex Discrimination Act 1975, which provided that a person discriminates against a woman if, during pregnancy and maternity leave, he treats her less favourably on the ground of her pregnancy.

The tribunal refused to accept Mr Kulikaoskas’s discrimination claim. He appealed on the grounds that s3A of the SDA 1975 had to be interpreted in the same way as the Disability Discrimination Act 1995 had been in the Coleman case – in other words, he should be protected against associative pregnancy discrimination.

The EAT dismissed his appeal. Its primary reason for doing so was that European law did not require section 3A of the SDA 1975 to be read as covering associative pregnancy discrimination. It distinguished the Coleman case because it had been decided under the Framework Directive. On the other hand, Mr Kulikaoskas’s claim fell under the remit of the Pregnant Workers’ Directive and the Equal Treatment Directive, which recognised that special protection is required in respect of the biological condition of pregnancy. If the intention of these Directives was to define discrimination as less favourable treatment of a person “in relation to a woman’s pregnancy” they could have done so.

Because it considered the law to be clear, the EAT declined to make a reference to the ECJ. Although it was not required to consider the position under the Equality Act 2010, it did comment that, given the same facts, it was not entirely clear if Mr Kulikaoskas’ claim would have succeeded under the new regime. Time, and case law, will tell…

Equality Act 2010 comes into force today

The majority of the Equality Act 2010's provisions come into force today, 1 October 2010. The provisions coming into force include:

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions, premises, work, education, associations and transport.


• The new concept of "discrimination arising from disability", to restore the protection from "disability-related discrimination" lost as a result of the House of Lords' decision in London Borough of Lewisham v Malcolm.


• Preventing employers from asking pre-employment health questions, except in specified circumstances (s60).


• Making pay secrecy clauses unenforceable (s77).


• New powers for employment tribunals to make recommendations in relation to the workforce as a whole (s124).


• The general provisions allowing voluntary positive action (s158).

There are still a number of provisions that have not yet come into effect and which the government is currently "considering how to implement", perhaps the most notable of which are:

• Provisions relating to combined discrimination (s14); and
• Provisions relating to positive action in recruitment and promotion (s159).

If you haven't already reviewed your equal opportunities policy documentation - and ensured any standard compromise agreement refers to the new legislation - there's no time like the present!

National Minimum Wage goes up today

The national minimum wage goes up today, 1 October 2010. The new hourly rates are:

• Standard (adult) rate: £5.93 (up from £5.80).
• Development rate (workers aged between 18 and 20): £4.92 (up from £4.83).
• Young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices): £3.64 (up from £3.57).

The adult rate will be extended to 21-year-olds; it currently applies to workers aged 22 and over.

It is also worth noting a new minimum wage of £2.50 per hour for apprentices. This will apply to apprentices under 19 or those aged 19 and over but in the first year of their apprenticeship.

Full details are available here.

Victimisation: Liability of the Provider and Recipient of a Discriminatory Reference

People often assert that they have been the victim of "victimisation" without understanding what it is. In essence, victimisation is a particular form of discrimination that involves treating a person less favourably because he or she has complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint.

The Employment Appeal Tribunal has now handed down an interesting decision addressing this area of law. In the case, Bullimore v Pothecary Witham Weld Solicitors, Ms Bullimore was a solicitor who lost an offer of employment because her former employer provided a poor reference. The reference specifically cited the fact that she had previously pursued a claim of sex discrimination against it and went on to refer to her "poor relationship" with the firm's partners and to her "inflexible" opinions. The employment tribunal, quite correctly, found that Ms Bullimore had been the victim of unlawful victimisation by both her former employer and her prospective employer.

The employment tribunal then went on hold that Ms Bullimore's claim for loss of future earnings against the reference provider was too remote. The EAT disagreed with this reasoning, observing that if this were the case and the prospective employer had withdrawn its offer of employment for a non-discriminatory reason, Ms Bullimore would have been left with no remedy for her loss of earnings. The EAT remitted the case back to the employment tribunal, the Respondents having already agreed that they would apportion damages between them to reflect their respective culpability and their degree of responsibility for the loss that Ms Bullimore had suffered.

Bonfire of the Quangos: Equality and Human Rights Commission to go?

The Daily Telegraph has published a leaked list of 177 quangos due to be abolished, which include a number of employment and training related quangos such as the the Union Modernisation Advisory Fund. A further 94 quangos remain "under review" and may be scrapped in the future. Perhaps the most notable of which, from an employment perspective, is the Equality and Human Rights Commission. 350 bodies escape the axe, including Acas and the UK Commission for Employment and Skills.

You can see the full list here.

New guide to managing work-related stress published

The Chartered Institute of Personnel and Development, in conjunction with the HSE and Acas, has published a new guide to managing stress at work. Entitled "Work-related stress: what the law says", it explores the potential legal consequences of ignoring these responsibilities, and gives advice on tackling stress through good management.

The guide is available to download here.

Survey shows coalition split on workers' rights

The British Chambers of Commerce has published results from a survey of MPs that suggest some divisions within the Coalition on top business concerns. The ComRes-conducted survey found clear discrepancies among MPs from the two Coalition parties, perhaps the most remarkable of which being on the issue of whether the balance of employment law has shifted too far towards the employee, to the detriment of the employer. 87% of Conservative MPs surveyed agreed that it had; 71% of Liberal Democrats polled disagreed. This is a notable difference of opinion on an issue that the BCC claims is preventing businesses from taking on more staff.

You can read the BCC's Press Release here.

Twitter

Well, we've finally taken the Twitter penny. You can find us on there by looking for "SynergyEmpLaw", or by clicking here. We'll be tweeting regularly to pass on anything in the employment law and HR arenas that happen to catch our eye. Log on and join the conversation!

Handing in your notice? This is the week you're most likely to do it...

This caught our eye: a staggering 37% of people handing in their notice this year will do so this week - the third week in September. And 24% of people do it in the first week of February. Actually, this is perhaps less surprising than it sounds - each of these weeks fall four weeks after the end of the traditional holiday seasons. And as the research comes on the back of EU figures showing British employees work harder than most of Europe (only Romanians and Bulgarians put in longer hours) it all starts to make perfect sense.

You can find the rest of the story here.

Pope to criticise equality laws

It has been reported that, in a speech on Friday, the Pope will criticise Britain's equality laws, and that they shouldn't overshadow Christians' rights to express their religion.

It's probably worth reminding ourselves of the area of law this largely stems from. First up - indirect discrimination on the grounds of religion or belief. In an employment context, this means that an employer must not have selection criteria, policies, employment rules or any other practices that apply to everyone regardless of religion, but have the effect of disadvantaging employees or job applicants of a particular religion or belief, unless the employer can show that they are justified. Attempts by Christians to rely on this legislation have led to a number of high profile media stories (perhaps most famously Eweida v British Airways, in which an air stewardess claimed, unsuccessfully, that BA's dress code, which forbade the wearing of a visible cross, was indirectly discriminatory). Secondly, Under the Equality Act (Sexual Orientation) Regulations 2007 no-one should be refused goods or services on the grounds of their sexuality; this sparked outrage in April this year when the then shadow Home Secretary, Chris Grayling, defended two Christian B&B owners who refused a room to a couple on the basis that they were gay.

In short, expect a heated media debate over the next few days...

Read more here.

Annual Tribunal Statistics Published

The annual statistics for the Employment Tribunal and EAT for the twelve months to 31 March 2010 have been published - and, as ever, they make for interesting reading. We've had a look at them so you don't have to, and the main points to note are:

• Employment Tribunal claims rose year on year by 56%. This has been linked to a rise in multiple claims (up by nearly 90%) and the changing economic climate.
• Because of "multiple airline industry cases that are re-submitted every three months", the greatest increases came in working time claims (297%) and claims for unauthorised deductions (122%).
• Claims for breach of contract increased by 29%, for age discrimination by 36% and claims for redundancy payments increased by a whopping 76%.
• 71% of equal pay claims and 57% of sex discrimination claims do not make it to a tribunal hearing, making them the claims most likely to be withdrawn.
• The claim most likely to be settled via ACAS conciliation is disability discrimination (45%).
• The claim that is most likely to be successful at tribunal is a claim for redundancy pay (24% of which were successful).

A question we're always asked by parties to a tribunal claim is "how much am I/they going to get?". There's inevitably a how-long-is-a-piece-of-string element to any answer you can give, but we can say what the mean/median and maximum amount of any award was for any particular claim. And they are:

• Unfair dismissal: £9,120 (mean), £4,903 (median), £234,549 (maximum);
• Race discrimination: £18,584, £5,392, £374,922;
• Sex discrimination: £19,499, £6,275, £442,366;
• Disability discrimination: £52,087, £8,553, £729,347;
• Religious discrimination: £4,886, £5,000, £9,500;
• Sexual orientation discrimination: £20,384, £5,000, £163,725;
• Age discrimination: £10,931, £5,868, £48,710.

If you want to see all of the statistics in detail, the report is available to download here.

It's World Cup time again, so there must be an employment angle - right?

The Federation of Small Businesses has produced guidance on how to deal with employees wanting to take time off during the finals. The guidance recommends a flexible working system to accommodate requests for time off, by granting annual leave or (if possible) special unpaid leave. Other suggestions include allowing staff to listen to the radio or watch the television at work. For those who call in sick in order to watch matches or deal with hangovers, a reminder about potential disciplinary action is recommended, together with a policy of requiring medical evidence for sickness absence during the tournament.

If you think all that sounds handy, you can grab a copy of the guide here.

Equality Act 2010 published

The Equality Bill received Royal Assent on 8 April 2010 and became the Equality Act 2010. The Act can be viewed here, having been made publicly available on 13 April 2010.

The majority of the Act's provisions will take effect in October 2010.

Synergy Employment Law Solicitors secure High Court Bonus Ruling

Julian Fidler, partner at Synergy Employment Law Solicitors, has secured a victory in the High Court for a former executive against the investment bank and stockbroker, Seymour Pierce.

Malcolm Rutherford's claim was for his 2007 fourth quarter bonus. Seymour Pierce had argued that it was a condition of the bonus payment that Mr Rutherford should be employed and not under notice of termination, and that he had left the company by the time it was due to be paid. Despite this, Mr Justice Coulson ruled that Malcolm Rutherford be paid a bonus of £70,000.

Julian told the Financial Times Newspaper: "The result in this case illustrates an important lesson for City of London financial institutions and indeed other employers."

Full story here.

Maximum compensatory award for unfair dismissal to go... down

The annual review of compensation limits has, for the first time, resulted in a reduction to the maximum compensatory award limit. The maximum compensatory award will drop from £66,200 to £65,300 with effect from 1 February 2010. The reduction reflects the 1.4% drop in the Retail Prices Index from September 2008 to September 2009.

The limit of a "week's pay" (for basic award and redundancy pay purposes) will remain the same at £380.

A response to a discriminatory remark can amount to misconduct

In Orr v Milton Keynes Council, the Employment Appeal Tribunal has held that the fact that an employee had been the subject of racist remarks does not necessarily excuse his response to them and that his behaviour could constitute misconduct, giving rise to a fair dismissal.

The employee, Mr Orr, had been dismissed for gross misconduct due, in part, to his conduct in a meeting at which his manager had made a racist remark. The EAT confirmed that the correct test to apply in these circumstances is the usual test for unfair dismissal to determine whether the dismissal was fair. Mr Orr's contention was that "but for" the discrimination, the dismissal would not have occurred; however, the EAT rejected this approach, stating that discrimination will only be relevant to the fairness of the dismissal if the employer had reached the decision to dismiss for discriminatory reasons.

How not to design a logo

The Office of Government Commerce (OGC) is an independent office of HM Treasury, established to help Government deliver best value from its spending. And it's just paid a lot of money for a swanky new logo. It's on their website, stationery, pens and, no doubt, t-shirts, mugs and mousemats.

OK, it's not HR related - but we can see why its employees dissolved into gales of laughter when they turned the logo on its side...

Anyway, if you want to learn more about this hitherto slightly overlooked Government Agency, the website's here.

One in ten men out of work by 2010

A stark analysis of official statistics by the Chartered Institute of Personnel and Development has shown that the recession is causing more job losses amongst men than women.

The publication, "Men Not At Work", reveals that, whilst unemployment amongst women stands at 6.9%, the number of men without work has climbed to 9%. This is an increase of 50% since the beginning of the recession, compared with a 33 per cent increase for women. John Philpott, the CIPD’s chief economist, has predicted that one in ten men will be unemployed by 2010.

The groups most likely to be out of work are young males aged 18-24 and black men, with one in five out of work. A separate study by the TUC has shown that, amongst the 16-24 age group, 900,000 are now out of work, with this figure set to reach 1 million.

You can read the full story here.

Discrimination: awards for injury to feelings go up

A successful claim of discrimination at an employment tribunal will, in addition to compensation for financial loss, invariably give rise to compensation for injury to feelings suffered as a result of the discrimination. It is a compensatory award, not a punitive award, so tribunals should have regard to the actual injury to feelings suffered and not inflate the award simply because it takes a dim view of an employer's behaviour.

The anti-discrimination legislation does not contain guidance as to how a tribunal should evaluate injured feelings, and employment tribunals have, for a number of years, used the "Vento guidelines", so called after the Court of Appeal's decision in Vento v Chief Constable of West Yorkshire Police (2002).

This case set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards. The "bottom band" is applied to less serious cases, such as a one-off incident or an isolated event. The "middle band" is applied to serious cases which do not merit an award in the highest band, and the "top band" is for the most serious cases, such as where there has been a lengthy campaign of harassment. Awards can exceed this only in the most exceptional cases.

In Da'Bell v NSPCC (2009), the Employment Appeals Tribunal has now revised the value of the three bands, to take inflation into account since the Vento case. They are now:

• Bottom band: £600 - £6,000 (up from £500 - £5,000 in Vento);
• Middle band: £6,000 - £18,000 (up from £5,000 - £15,000); and
• Top band: £18,000 - £30,000 (up from £15,000 - £25,000).

The transcript of the case is not yet available, but because the judgment has been handed down it has immediate effect.

Conservatives talking tough on employment law...

Interesting statements of intent are beginning to emanate from Manchester, where the Conservatives are this week holding their party conference. One of their big beasts, Ken Clarke, the shadow business secretary, has promised that a Conservative government would operate a "one in, one out" policy that would require an existing business law to be cut before a new one was introduced, with the aim of reducing the overall regulatory burden by 5%. Members of the public will be invited to nominate unpopular regulations (we can certainly think of a few) to be reviewed by Parliament. More here.

This comes on the back of a promise made last year by Alan Duncan, the previous shadow business secretary, to consult on changes that need to be made to employment tribunals. He's on record describing them as "a pretty grotty system that needs a real shake-up".

Controversial stuff, but we're pretty sure the more cynical out there will wonder whether we've heard this all before...