Welcome
Following Gordon Brown’s “Biscuitgate”, many of us are now well-rehearsed and able to offer up, without hesitation, the name of our favourite biscuit, if called upon to reveal it to Mumsnet. Interestingly, last week’s cause célèbre in the USA involved a receptionist who sued her former employers, claiming that a requirement that she take coffee and biscuits to her two male supervisors at 3pm each afternoon amounted to sexual harassment and gender discrimination. Shortly after starting work for the company, Tamara Klopfenstein complained by email about her concerns regarding the coffee making ordeal and an interesting email string developed. Her bosses responded, “please don’t make an easy task a big deal”. She wrote “I don’t mind getting coffee for guests but don’t expect to serve and wait on you.” They replied (and we by no means condone this approach to disciplinary issues!) “I’m sorry it didn’t work out so please pack up your things”. Tamara was unsuccessful in her claim.
In this month’s bulletin, we’ll first turn to the employment law news story that has caught the attention of the UK media recently - is a belief in climate change equivalent to a religion?
Your Christmas Party
We don't wish to be party poopers (Ba-Humbug you say!) but please remember that you (the employer) have a duty to take measures to make sure that things don't get out of hand at the Christmas party. Our advice is that you take one or two simple steps to protect yourself from the possibility of liability if things go pear shaped. For a draft Memo to send to all staff in advance of the big party, click here.
Climate change - philosophical belief
The Employment Appeal Tribunal has held in Grainger plc v Nicholson that a belief in man-made climate change is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003. Mr Nicholson is claiming that his dismissal by way of redundancy was an act of discrimination on grounds of his “philosophical belief that mankind is headed towards catastrophic climate change and that, as a result, we are under a duty to do all that we can to live our lives so as to mitigate or avoid that catastrophe for future generations". Mr Nicholson has been allowed to continue with his claim that he was dismissed as a result of the contempt his managers held for his beliefs. He had frequent clashes with managers about the way in which the Company was operating. It remains to be decided whether or not his dismissal was actually an act of discrimination.
Contrary to what the press has reported, environmentalism has not been given status as a religion – but instead as a valid ‘philosophical belief’ (thus meaning it attracts protection against discrimination). This does not mean employees can refuse to undertake tasks which conflict with their beliefs, or can foist their beliefs on others, but care needs to be exercised before disciplining or dismissing in these circumstances. Please contact us for further details.
Racial Discrimination in Recruitment Practice
The Department of Work and Pensions has published the results of its research to assess the extent to which employers discriminate when sifting job applications. By way of experiment, duplicate job applications in respect of around 1,000 vacancies were advertised between October 2008 and May 2009. The duplicate applications were identical, save for one having a traditional white British name and the other having a name found to be widely associated with ethnic groups. The results showed that there was discrimination in favour of applicants with white British names over their ethnic minority equivalent, by 29%. The results will be used to assess whether any changes in discrimination law are required.
Interestingly, Mr Qamar Mohammed Malik brought a case in the Employment Tribunal in 2007, after he had sent two job applications to a potential employer, one using his own name and the other using the name Lloyd-Hilbert. “Mr Lloyd-Hilbert” was invited to interview, but Mr Malik was not. Nevertheless, Mr Malik failed in his race discrimination claim. The Tribunal accepted the defence that there were non-racial reasons for the difference in treatment in that particular case.
Consultant or Employee?
The Court of Appeal has handed down another judgment on the issue of employee/worker status. The case of Autoclenz –v- Belcher involved car valeters who were providing services for Autoclenz. Their agreement with the Company expressly said that there was no obligation for them to perform any work and it was argued that this lack of obligation meant that they could not be employees. However, in practice they were required to notify the Company well in advance if they were not going to turn up for work. The written agreement also provided for the right for the car valeters to provide a substitute in their place. However, it was held that it could be inferred from the evidence that the substitution clause did not genuinely reflect the rights and obligations of the valeters, because in practice no substitution had ever actually taken place. It was held that the written terms did not reflect the true agreement between the parties, and that despite the written contract the valeters were employees (with employment rights).
We regularly report on how the Courts are approaching the hardy perennial issue of whether an individual is an employee or a self-employed consultant. This case is a further example of how Courts judge each case on its own merits and facts and that it is not only important to have a written agreement in place with consultants, but also to ensure that such an agreement reflects the reality of the situation.
Service Related Pay Schemes
A landmark ruling in the Court of Appeal (in the case of Wilson v Health & Safety Executive) has thrown serious doubt over the widespread practice of rewarding long service, by paying those staff more than they pay staff with shorter service. It has been held that such schemes can be discriminatory against women. Christine Wilson, an Inspector with the Health and Safety Executive, claimed that her employer’s pay agreement, which was linked to length of service for up to 10 years, was unfair because it resulted in three male colleagues on the same level as Mrs Wilson being paid more than her for doing equivalent work. The Equality and Human Rights Commission argued on her behalf that linking pay to length of service often disadvantages women, who often do not have the same continuous length of service as men because they take time out to have a family.
There could be serious implications for a large number of employers, because it is thought that a third of companies in the UK use pay scales that increase salaries with length of service. Schemes which disadvantage women will now have to be fully justified by employers, if challenged. It is possible that there may be justifiable differences in pay, to reflect experience and a real learning curve in employment, but employers will have to be able to objectively justify any significant difference in pay that has a disproportionate impact by gender. This may result in it being very difficult for employers to justify very long scales (e.g. scales of 10 years, as in this case).
Default retirement age review – businesses asked to contribute
In our last issue of the Bulletin we reported that the Government had decided to bring forward to 2010 a review of the default retirement age of 65. The review will consider whether a default retirement age of 65 remains appropriate and necessary.
The Government has commissioned a survey of employers' policies, practices and preferences relating to age. In addition, the Department for Work and Pensions and the Department for Business, Innovation and Skills are requesting businesses and individuals to submit evidence to assist the review. The Government is looking for evidence including, but not limited to, the following broad areas:
- the operation of the default retirement age in practice;
- the reasons that businesses use mandatory retirement ages;
- the impacts (positive and negative) on businesses, individuals, and the economy, of raising or removing the default retirement age;
- the experience of businesses operating without a default retirement age;
- how could any costs of raising or removing the DRA be mitigated and benefits realised?
Submissions are requested by 1 February 2010 and further information can be found at the BERR website
And Finally…
Common sense dictates that attacking the Chairman who is hearing your case at an Employment Tribunal is likely to be counter-productive. Indeed, it’s specifically prohibited by virtue of Rule 7(c) sub-section (iv) of the Employment Lawyers Handbook (just beneath the requirement to always wear shiny shoes and a serious expression). Nevertheless, it has been reported in the Telegraph that Dr Jeeva Mehta did just that, after being ordered by the Chairman to produce further and better particulars of his claim against the University of London.
A solicitor present at the proceedings said she saw him lose his temper and pick up a jug of water. “I thought he was going to empty it over the Chair’s head” she said. But then “he said he was going to ******* kill him”. The GMC heard evidence that the doctor then picked up a chair and hit the Chairman with it. The solicitor ran to get help from the Tribunal’s security staff, who helpfully and gallantly told her that it wasn’t their responsibility. We don’t think this is the best way to win tribunal cases... |
