Harriet Harman, the Minister for Women and Equality, has recently announced the Government’s proposal that positive action be permissible under the proposed Equality Bill. This will enable employers recruiting staff to choose to employ a female or male candidate over a candidate of the opposite sex, or ethnic minority candidates above non ethnic minority candidates, where the candidates in question have equal ability and qualifications and a particular gender or ethnic minority group is under represented in the workforce. The aim of positive action is to help achieve equality in the workplace through the recruitment of teams that are balanced in terms of ethnicity and gender and/or best reflecting the groups that the team serves.
Also, in an effort to create equality between the sexes with regard to remuneration, the Bill will outlaw clauses in employment contracts that prohibit employees disclosing their pay and will require public bodies to publish gender pay gaps within their organisation.
Background
The single Equality Bill will replace the numerous pieces of discrimination legislation that are currently in force. Amongst other things it is intended to work towards the elimination of prejudice and discrimination, the treatment of all individuals as equals and the promotion of good practice in relation to equality and diversity.
The Bill is to be introduced following a commitment in Labour’s 2005 election manifesto. A Discrimination Law Review was subsequently carried out culminating in the publication of a consultation paper in 2007; A Framework for Fairness: Proposals for an Equality Bill for Great Britain. The paper outlined proposals aimed to simplify, modernise and increase the effectiveness of discrimination law. The period of consultation concluded in the same year with some 4000 responses being received. Following consideration of those responses, the Government’s response to consultation outlining the detail of what will be included in the Equality Bill will be published and this expected around the end of the year.
Comment
Upon the introduction of lawful positive action employers would be prudent to carefully record with evidence what their recruitment objectives are and why, that all candidates have gone through the same recruitment process, the basis for their selection decisions and how those decisions fulfil their objectives. Employers will note that the proposal is that positive action be permissible rather than imposing an obligation on them to take positive action.
Turning to pay secrecy clauses, employers who make use of such terms should review their contracts and policies and remove any offending provisions. A possible impact of the new legislation is that employees who are aggrieved about their level of pay in workplaces where pay secrecy clauses have been relied on to date may be more likely to pursue grievances and tribunal claims as evidence of potential sex discrimination becomes more easily available. Any differentials in pay should therefore be evidently free from discrimination.
Veronica Colegate · July 14, 2008
On 15th May 2008, Imelda Walsh published her report to the Government on the right to request flexible working. The report contains findings and conclusions following an independent review into how the right to request flexible working could be extended to parents of older children.
Currently the right to request flexible working is limited to employees with at least 26 weeks service and who are parents of children under 6 years of age, parents of disabled children up to the age of 18 or, since April 2007, carers of adults. Legislation sets out a formal procedure enabling employees to make a request to work flexibly and requiring employers to seriously consider requests made. Having considered the request the employer may grant the right to work flexibly resulting in a change to the employee’s terms and conditions of employment, or reject the request on one of 8 permissible grounds.
Imelda Walsh has recommended that the right to request flexible working be extended to employees with parental responsibility for children up to the age of 16. This will mean that an additional 4.5 million people will acquire the right. It is also recommended that the right be introduced in full rather than phased in over time. Having accepted this recommendation the Government will shortly carry out consultation regarding its implementation.
In our experience employers have a positive approach to flexible working and find they benefit from it in terms of retention, employee satisfaction and productivity. Many employers already consider requests from a wider range of employees than they are obliged to under the current legislation. Further, employers are, where ever possible, granting flexible working rights without great difficulty. For many then the extension of the right will not be unmanageable, will not require any great organisational changes or give rise to a significant cost burden. Employers who are concerned that the extension of the right would create more requests than they can grant will be comforted by the fact that the employee’s right will continue to be limited to the right to make a request to work flexibly and the employer will continue to have grounds for refusing the request if it can not be accommodated for one of the reasons specified in the legislation.
Employers who do not already have extended policies will, in due course, be advised to review their policies and practises to ensure compliance with the extended rights.
Veronica Colegate · May 21, 2008
ACAS have produced a draft revised version of their code of practice on discipline and grievance procedures for public consultation. The publication is part of the overhaul of statutory dispute resolution procedures following Michael Gibbons’ review of the current unpopular procedures, the subsequent public consultation and the Government’s decision to repeal the existing procedures through the Employment Bill.
The purpose of the revised code is to simplify the grievance and disciplinary procedures. To this end the code has been written with the intention of it being shorter, more flexible, more principles based and including more basic practical guidance for all parties to workplace disputes. As is currently the case, an employer’s failure to follow the code will be considered by the Employment Tribunal in the event of a claim.
The revised code should not be a shock to employers who currently follow best practise as it contains many principles and procedures that they will already be very familiar with. Such principles and procedures that the code requires employers to apply include promptness, consistency, proper investigation, impartial decision making, fully informing the employee, allowing the employee to state their case, the right to be accompanied, making appropriate decisions and the right to appeal.
Both the revised disciplinary and dismissal procedures and the ACAS code of practice are expected to come into effect in April 2009 and ACAS will be producing further comprehensive guidance on handling workplace disputes at that time. The period of public consultation in respect of ACAS’s draft code continues until 25th July 2008.
Veronica Colegate · May 12, 2008
Last year the Equal Opportunities Commission (now the Equality and Human Rights Commission) brought successful Judicial Review proceedings arguing that recent Regulations amending the Sex Discrimination Act 1975 did not comply with European law as they failed to give the full extent of protection required to bring the Act into line with European case law.
As a consequence the Sex Discrimination (Amendment) Regulations have been introduced. The Regulations, which came into force on 6th April 2008 further amend three areas of the Sex Discrimination Act. Specifically, S3A (discrimination on the grounds of pregnancy or maternity leave), S4A (prohibition of harassment) and S6A (exceptions to the right to claim discrimination in respect of terms and conditions of employment during maternity leave).
Discrimination on the grounds of pregnancy or maternity leave
S3A previously required a Claimant to perform a comparison of her treatment with that of a women who was not pregnant or exercising her right to maternity leave. This section has now been amended so that women are no longer required to make such a comparison, they just have to show less favourable treatment by reason of their being pregnant or exercising their right to maternity leave.
Prohibition of harassment
S4A previously limited claims of harassment that could be brought against employers because it did not expressly include third parties such as clients or customers. Employers may now be liable for harassment of employees by such persons if they knew that harassment related to sex had occurred on more than two occasions and failed to take reasonably practicable steps to prevent harassment.
To protect themselves from liability employers should make it clear to third parties, by written warnings or notices, that even single potentially unlawful acts will not be tolerated. This is because under the new provision the separate incidents of harassment amounting to the requisite minimum of three incidents need not be by the same person but could, for example, be acts of three different clients. In addition employers would be wise to amend their policies to include third party harassment, to give training to employees and to consider what further preventative steps can be taken to prevent potential harassment or further occurrence if an incident does occur.
A further limitation which has been removed from S4A is the old requirement for harassment to be on the ground of a woman’s sex. It now only has to be related to her sex or that of another person.
Exceptions to the right to claim discrimination in respect of terms and conditions of employment during maternity leave
S6A previously limited the protection of contractual entitlements to non pay benefits so that entitlement continued during Ordinary Maternity Leave only. Now, for women whose expected week of confinement falls on or after the 5th October 2008, contractual entitlement to such benefits will continue into Additional Maternity Leave.
To protect against claims under this Section of the Act, employers should review and amend their policies and practices relating to non cash benefits such as company cars, gym membership, mobile phones etc.
Amendment has also been made to S6A so that women are entitled to payment of discretionary bonuses during their two week compulsory maternity leave. Again policies and practices regarding bonuses should be reviewed and amended to protect against claims.
Comment
Whilst the amendments increase the protection afforded to women the changes are not considered to be so great that they are likely to open a floodgate of claims. The burden on a Claimant remains high and there are steps that can be taken by employers to reduce the risk of successful claims. Where employees rights are increased, employers have sufficient time to ensure they are prepared for the amendments before they come into effect.
Veronica Colegate · May 12, 2008
The European Court of Justice’s opinion in the case of Stringer and Others -v- H M Revenue & Customs (previously known as Ainsworth) is long awaited. The recent opinion of the Advocate General means that we are now a step closer to a definitive decision.
Veronica Colegate · February 12, 2008
Over the last year the Government has consulted with the public about the application of the National Minimum Wage to voluntary workers.
Since the introduction of the National Minimum Wage Act voluntary workers have been excluded from qualifying for the minimum wage under s44 of the Act.
The purpose of the Government’s review was to consult with the voluntary sector about their experience of the application of this exemption.
Having reviewed the consultation responses the Government concluded that the exemption provision provides sufficient certainty and clarity regarding who is entitled to receive the minimum wage, is working as intended and is meeting the needs of voluntary organisations.
The government does not therefore plan to make any changes or extensions to s44 are required. However, it does propose to prepare updated guidance on the issue in 2008.
Veronica Colegate · February 4, 2008