UNIMAG: Issue 8 22
UNIMAG
A QUARTERLY PERIODICAL UPDATING BRANCH REPS ON EMPLOYMENT LAW
Issue 8: November 2010
FOR SUBSCRIBING BRANCHES
Content
EDITORIAL / 3NEW LEGISLATION / 4
Equality Act ▪ Codes under the Equality Act ▪ Guidance on the definition of Disability ▪ Discrimination questionnaires ▪ Minimum wage ▪ Flexible working ▪ Reforming quangos ▪ Whistleblowing ▪ Employment tribunal statistics
IN THE NEWS: religious discrimination / 9
CASEWATCH extended case reports:
Bullimore v (1) Pothecary Witham Weld Solicitors (2) Hawthorne
Victimisation: references / 11
The Manchester College v Cocliff
Fixed-term employees / 14
Commissioner of Police of the Metropolis v Buchanan
Unfair dismissal: proper investigation / 16
SHORT CASE REPORTS / 18
Pregnancy dismissal: dismissing the father ▪ Spiritualism can be a protected belief ▪ Unfair dismissal: breaks in service ▪ Unfair dismissal: theft ▪ Stereotyping of mental illness ▪ Equal pay: equalising terms
IN-DEPTH GUIDANCE: direct discrimination: old and new law / 28
TABLE: old and new definitions of discrimination / 34
RESOURCES AND LINKS / 37
Disclaimer
While every effort is made to ensure the accuracy of the contents of this magazine, the author and publisher can accept no responsibility for advice given in reliance on its contents. You should always seek guidance through the appropriate UNISON channels where you need to take action.
Editorial
Hi everyone,
Employers often target older workers for redundancy. But over-50s also tend to put themselves forward. The Employers’ Forum on Age has warned older workers against being too ready to accept voluntary redundancy. Although the over-50s usually get the larger payouts because of the way packages are calculated, this may only be a short-term benefit. Older workers may be underestimating the difficulties of getting back into work, especially in the recession. The Age and Employment Network (TAEN) says older workers are the hidden sufferers at this time. It is harder for older workers to get back into work after redundancy and many are driven out of work permanently.
Interestingly, the latest employment tribunal statistics for 2009/2010 show the continuing rise of age discrimination claims. At 5200, they have almost caught up with the number of race discrimination claims started annually. Unfortunately it is not just older workers who do badly in a recession. As the workforce shrinks and terms and conditions are driven down, diversity always suffers. There are many voices claiming that women will bear the brunt over the next few years. It is heartening that, under all these pressures, UNISON continues to fight for women’s rights to equal pay. At p26, we report another important legal success in this continuing fight.
Just to remind you, the next issue (February 2011) will be the last of year 2 and will be shortly followed by a cumulative index for years 1 and 2.
Best wishes,
Tamara
Editor / Tamara LewisPublisher / Diversity Works Ltd
Subscriptions / E-mail or telephone John at Diversity Works on 0207 431 1712.
Copyright / Diversity Works Ltd
New legislation
Equality Act 2010
The main parts of the Equality Act came into force on 1 October 2010, including the legal definitions of discrimination (direct discrimination, indirect discrimination, victimisation, harassment, 3rd party harassment and the new definitions relevant to disability). The Act replaces and updates all the previous individual pieces of discrimination legislation. The old legislation will still apply to any discrimination which occurred wholly before 1 October. But if the discrimination started before 1 October and continued afterwards, the Equality Act will apply. If you like reading unreadable statutory instruments, you can find the commencement order – Equality Act 2010 (Commencement No.4, Savings, Consequential, Transitional, Transitory and Incidental Provision and Revocation) Order 2010’ (SI No.2317) on the OPSI website at www.legislation.gov.uk/uksi/2010/2317/pdfs/uksi_20102317_en.pdf
The Equality Act is a large document as it covers non-employment areas as well as all the equality strands. You can also find it on the OPSI website at www.opsi.gov.uk/acts/acts2010/ukpga_20100015_en_1
The new public sector equality duty in s149 is likely to come into effect in April 2011. Meanwhile, the government is consulting on regulations setting out proposed new specific duties under the general duty. The consultation closes on 10 November 2010 and can be accessed on the Government Equalities Office site via www.equalities.gov.uk/default.aspx?page=1642 / The general duty (set out below) is an improvement on the previous general duties in that it covers all the protected characteristics, not just race, gender and disability. It is also important in that it talks about ‘advancing’ equality of opportunity rather than merely ‘promoting’ equality, as previously required. However, the proposed specific duties are a backwards step and are worryingly vague.
s149 Public sector equality duty E+W+S
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
The government is still ‘considering’ whether and when to bring into force sections on the public sector socio-economic duty, positive action tie-break rules in recruitment, and ‘combined discrimination: dual characteristics’.
We will continue to feature a series of short guidance articles in this and future issues of UNIMAG, explaining key aspects of discrimination law and highlighting where there are changes. All case reports based on the old legislation will also explain whether there are any difference under the Equality Act.
Codes under the Equality Act 2010
The Equality and Human Rights Commission has published two statutory Codes which apply in England, Wales and Scotland:
§ Equality Act 2010 – Code of Practice on Employment
§ Equality Act 2010 – Code of Practice on Equal Pay.
These were laid before parliament on 12 October 2010 and are technically in draft form for 40 days until the government issues an Order bringing them into force. They can be accessed via links at www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice/
Alternatively, go direct to the Employment Code at www.equalityhumanrights.com/uploaded_files/EqualityAct/employment_code_05.10.10.pdf and the Equal Pay Code at www.equalityhumanrights.com/uploaded_files/EqualityAct/equal_pay_code_05.10.10.pdf
The Codes do not impose any legal implications in themselves, but tribunals must take into account any relevant parts of the Codes when reaching a decision.
The Employment Code covers discrimination in employment and work-related activities under part 5 of the Equality Act. It does not cover discrimination by qualifications bodies and trade unions – there will be a separate Code for that. / The EHRC says the main purpose of the Employment Code is to provide a detailed explanation of the Equality Act, which should help tribunals, trade union reps, HR and lawyers understand the law. Having said that, tribunals and courts are not bound by the Code’s interpretation of the law.
Unfortunately the Employment Code is rather long (311 pages). The Equal Pay Code is 71 pages. Nevertheless, you should have copies in your Branch and be aware of the content, as the Codes do contain good practice recommendations which may be helpful for you when negotiating with employers or handling disciplinaries and grievances.
Guidance on the definition of disability under the Equality Act 2010
As the definition of disability no longer requires workers to show that the adverse effect on their normal day-to-day activities falls within a closed list of categories, it has been necessary to revise the statutory ‘Guidance’ on the definition. The Office for Disability Issues carried out a consultation on the proposed new Guidance which closed on 31 October 2010. For latest details, see its equality page at www.officefordisability.gov.uk/working/equality-bill.php
Until the new Guidance is issued, the current Guidance remains in force.
Discrimination questionnaires
The questionnaire procedure under discrimination law is a very important way for members bringing discrimination cases in employment tribunals to get more information and evidence from their employers. Members complete a form setting out their complaint and asking a series of relevant questions. For example, a member complaining about discrimination in promotion, can ask who was short-listed and who got the job, what were their relevant qualifications and experience, who made the decision and why, etc. Questionnaires need to be sent either before a case starts or within 28 days afterwards.
There is a series of guides to writing questionnaires on the EHRC website at www.equalityhumanrights.com (search ‘Tamara Lewis’ for a list). Although these guides are still generally applicable, they were written before the Equality Act 2010 came into force, and there have been a few small procedural changes since then. Writing questionnaires requires specialist skills and it is not suggested that branch officials should do this.
A new standard questionnaire format was issued from 1 October 2010 to be consistent with the Equality Act. It is set out in The Equality Act 2010 (Obtaining Information) Order 2010 (SI No.2194) and new forms are available on the Government Equality Office website via links on www.equalities.gov.uk/news/equality_act_2010_forms_for_ob.aspx / Flexible working
Currently there is a right for employees with at least 26 weeks’ continuous service to request flexible working, eg part-time work, reduced hours, job share or working at home. The reason for the request must be to care for a child under 17 or, if the child is disabled, under 18. There is also a right to request flexible working in order to care for certain adult relatives, eg partners, spouses, parents, children, siblings, aunts, uncles and grandparents.
The government has now announced that from April 2011, the right to request flexible working will be extended to parents of all children under 18. A consultation on further extending the right to all employees will be introduced later this year.
It is important to remember that the flexible working procedure simply gives certain employees the right to ask for flexible working. It does not give them the right to have their request granted. It makes sure that employers sit down and listen to the request promptly and give written reasons if they refuse, but it is not much help beyond that. If members want to challenge the refusal, they need to consider other employment rights. For example, refusing to allow a woman to work part-time for childcare reasons may be indirect sex discrimination if the employer cannot justify the refusal.
For more detail on the procedural right to request flexible working, see The Law & You, ed 4, p315-319, although note that on p316, the 2nd line under ‘The statutory right’ should now read ‘child under 17’ rather than ‘child under 6’.
Reforming quangos
The government has issued a press release stating its intention to introduce a Public Bodies Bill to ‘reform’ hundreds of non-departmental public bodies (or ‘quangos’) and to ‘help reinvigorate the public’s trust in democracy’. 192 quangos will be abolished and many others will be merged or substantially altered.
Although the Equality and Human Rights Commission will not be abolished, it will be radically reformed to ensure that it refocuses ‘on its core functions of regulating equality and anti-discrimination law in Great Britain, of fulfilling EU equality requirements and of being a National Human Rights Institution’. So what else has it been doing?
A transfer of some of the EHRC’s functions to government departments or private sector or voluntary bodies is apparently also under consideration. There will also be tighter management and financial controls by parliament. One worries for its independence.
The Health and Safety Executive is to be retained, but its spending scrutinised. The Central Arbitration Committee will merge with the Certification Office. Equality 2025 will be retained and extend its advice on disability issues to areas previously covered by other bodies such as the Disability Employment Advisory Committee. / ACAS, the Low Pay Commission and the Gangmasters Licensing Authority will be retained, as will the Information Commissioner.
For more detail of the proposals, see the cabinet office press release at www.cabinetoffice.gov.uk/newsroom/news_releases/2010/101014-quangos.aspx
National Minimum Wage
This is a reminder that the new hourly minimum wage rates from October 2010 are £5.93 for workers aged 22 and above; £4.92 for workers aged 18 – 21; £3.64 for workers aged 16 – 17 and £2.50 for apprentices.
Whistleblowing
UNIMAG has often covered the subject of whistleblowing. In particular, see the in-depth legal guidance in Issue 5. The NHS Staff Council has now agreed that workers in the NHS have a contractual right – and duty – to raise with their employer genuine concerns about malpractice, patient safety or other serious risks. This agreement will be included in the terms and conditions of service handbook. NHS organisations should develop local whistleblowing policies in consultation with trade unions. Mike Jackson, staff side chair and senior national officer (health) at UNISON says, ‘We must create a climate where staff feel they are able to raise their concerns without the fear of reprisals. It is now down to local trusts and unions to put policies in place and make sure they work’.
UNISON-backed case
It is not only in the NHS where whistleblowing cases can come up. UNISON helped a whistleblower win her case against the University of Gloucestershire in the Bristol employment tribunal in September. Janet Merrigan, a Business Development Manager, was asked by the former Deputy Vice Chancellor, Paul Bowler, to look into the university’s finances. He had been hired to put together a financial recovery plan for the university. After he left, the university took action against Ms Merrigan. The tribunal decided the university had penalised Ms Merrigan for raising concerns about financial mismanagement and awarded her £6000 for injury to feelings. / Employment tribunal statistics
The ‘Quarterly Statistics for the Tribunals Service, 1st quarter 2010 – 2011 (1 April 2010 – 30 June 2010)’ have just been published and can be found at
www.justice.gov.uk/publications/docs/tribunals-stats-quarter1-2010-11.pdf or via a link on www.justice.gov.uk/publications/quart-stats-tribunals.htm
These statistics include all kinds of tribunal including employment tribunals. There was a 6% rise in employment tribunal claims in this period compared with the same quarter in 2009-10 and a 27% rise compared with 2008-9. However, this was explained by an increase in multiple claims. There was a slight decrease in individual claims.
Employment tribunal statistics are separately published every year. The ‘Employment Tribunal and EAT statistics 2010 (GB)’ are at www.justice.gov.uk/publications/docs/tribs-et-eat-annual-stats-april09-march10.pdf To give you a general idea, in 2009/10 there were 57,400 unfair dismissal claims, 37,400 equal pay claims, 7500 disability discrimination claims, 5700 race discrimination claims and 5200 age discrimination claims. The statistics also give outcomes of hearings, but this can be misleading since so many cases settle.
In the news