Welcome!
Last month, a Serbian union leader cut off one of his little fingers in a somewhat unusual approach to collective bargaining. "It hurt like hell" he said, which was hardly surprising as a hacksaw sans anaesthetic is not the standard recommended procedure for digit removal.
We were reminded of this recently (in a clunking link that pays homage to Radio 4's 'Thought For The Day') when the Government published its new Equality Bill. Having previously announced that it wanted to reduce red tape for employers, it seems to be setting about achieving that objective in the most curious manner. Whether or not you believe the proposals to be worthy and worthwhile, employers may be forgiven for wondering whether a job-lot of red tape has been found in a shed round the back of the House of Commons.
We begin by taking a look at the new proposals:-
The Equality Bill
The Equality Bill was published on 27 April 2009. The Bill proposes that all the existing discrimination legislation is combined into one single Statute. The Government hopes to have the Bill enshrined in law by early 2010.
The most controversial proposal contained in the Bill is that companies with at least 250 employees (and the minimum number will be gradually reduced after its introduction) will have to conduct a pay audit each year and publish the results. In other words, companies will have to publish pay details so that men and women can monitor whether they are receiving equal pay. The legislation will ban secrecy clauses that prevent employees comparing salaries. Trade unions will be able to use the information in pay bargaining.
While the pay audit proposal has monopolised the headlines, the Bill includes other provisions including:-
- Positive discrimination to be allowed in certain circumstances (for example in recruitment and promotion, if candidates are otherwise equally qualified);
- A public sector equality duty;
- A defence of justification for discrimination, where it is a proportionate means of achieving a legitimate aim.
There are also rumours that MPs may use the Equality Bill to attempt to scrap the default compulsory retirement age of 65. We will keep you informed as the Bill progresses through Parliament.
Worker Registration Scheme
It had been expected that the Worker Registration Scheme would come to an end on 30 April 2009. The Government has announced that it will continue for another two years. This means that employees from the Czech Republic, Estonia, Latvia, Lithuania, Slovenia, Slovakia, Poland and Hungary must continue to be registered with the Home Office until they have completed 12 months registered work. It is important that employers comply with the registration scheme - failure to do so can result in a fine of up to £5,000 being levied.
Disability Discrimination - "Normal Day-to-Day Activity"
Under the Disability Discrimination Act 1995, a disabled person is defined as someone with "a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities".
The meaning of the phrase "normal day-to-day activity" was considered by the Employment Appeal Tribunal ('EAT') in the case of Chief Constable of Dumfries and Galloway Constabulary -v-Adams. The EAT decided that it refers to activities which are found amongst a range of employment situations but that it would not cover a specialist skill. That is the case even if such a specialist skill is the norm within a particular industry. The example given by the EAT was that a skilled watchmaker using specialised tools to craft fine objects of precision would not be undertaking a normal day-to-day activity. However, where an activity is common across a range of industries (such as walking around), then it does qualify as a normal day-to-day activity.
Statutory Payments Increase
As of 6 April, Maternity and Paternity Pay has been increased to £123.06 per week (from £117.18) and Statutory Sick Pay (SSP) was raised to £79.15 (from £75.40) - only available to those who earn £90.00 per week or more.
Meanwhile, the Government announced in the recent budget that there is to be an increase in the maximum week's pay to be taken into account when calculating statutory redundancy pay. It said that this measure has been introduced to provide adequate support for individuals who have been made redundant. The maximum week's pay is currently £350. It will be increased to £380, but the Government has yet to announce when the increase will come into effect (although informal indications suggest October 2009).
We will keep you informed.
Working Time Directive Opt-Out
The EU Member States were unable to reach an agreement with regard to the "opt-out" provision contained in the Working Time Directive. The opt-out enables Member States to disapply within their own legislation the requirement that there is a maximum 48 hour working week. The UK has always taken advantage of the opt-out and has campaigned vigorously for its retention. After five years of negotiations it was not possible to reach agreement, so UK workers will be able to opt-out of the 48 hour maximum working week limit for the foreseeable future.
Disability discrimination - effect of medication
The case of Hiero v Changework Now Ltd provides a useful reminder to employers that it may not be immediately apparent that an employee has a disability. Mr Hiero suffered from dysphoria (an anxiety condition) which caused speech and concentration problems and for which he took medication to control. When his job application to Changework was rejected he claimed disability discrimination.
The Employment Tribunal concluded that there were no substantial adverse effects caused by his condition and therefore it did not come within the definition of a disability within the Disability Discrimination Act. However, the Employment Appeal Tribunal found that there was clear evidence that Mr Hiero used medication to control his condition and therefore the Tribunal should have considered what the effects of his condition would have been without medication, when deciding whether he had a disability.
Employers should be wary when dealing with employees with whom, for example, they are having performance issues but who, on the face of it, appear to be reasonably healthy. Medication may be disguising the effects of a disability and it may be that there is a duty to consider reasonable adjustments to the employee's work or workplace.
And Finally...
Newspapers have this week reported that health and safety advisors have banned a clown from wearing his giant comedy shoes, while touring the UK with the Moscow State Circus. While performing in Liverpool, Valerik Kashkin (the clown) tripped and hurt his left foot. But it's important to understand that he was high up on a tightrope at the time.
Is this 'health and safety gone mad', or madness that's been stopped by health and safety? A health and safety advisor is quoted as saying: "I don't believe in political correctness..." (an interesting admission in itself) "...however, you have to take a commonsense approach with these things - if it's stupid, don't do it".
Last word goes to the manager of the circus who said: "we live in a litigation world" and "it's a real balancing act"...
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