Latest Developments-Equality and Diversity Training and Employment Issues

Baby Oliver secures more! -Government confirms that Associated Discrimination will be extended to all diversity strands

The Leader of the House of Commons has just confirmed that the government will extend the prohibition against associative and perceptive discrimination to “all other diversity strands and areas” where it does not apply at the moment. This important announcement reflects the government’s considered response to the landmark case of Mrs Coleman, published in our July 2008 edition. In that case, Mrs Coleman a personal secretary working for a firm of solicitors endured a barrage of daily abuse about her increased requests for flexible working. Mrs Coleman had given birth to a very severely disabled child, Oliver and in consequence had to balance carefully her work and family responsibilities. The barrage of abuse was directed at her son.  By association with her disabled son, the European Court of Justice ruled, Mrs Coleman had been discriminated against contrary to the Disability Discrimination Act.

The Minister’s announcement means that the concept of associated or perceptive discrimination will now apply in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age. The Minister says the Single Equality Bill going before Parliament just now will be amended to include this provision both in relation to employment and the provision of goods, facilities and services. QED Training has produced a free briefing on the Coleman case and the concepts of associated and perceptive discrimination. Get in touch for a free copy. Our courses are completely updated with the latest case law developments in this area from both an employment and service delivery perspective. And our training includes techniques showing how to challenge inappropriate behaviour from both staff and customers.

New Laws on Flexible working now in place

In a related development, new laws were introduced on April 5th extending the right to request flexible working hours to parents of children aged 16 and under. Previously, the right was only open to parents of children under six or parents of disabled parents under 18 and carers of adults. It is estimated that approximately ten million people will now be able to exercise this right. This represents an increase of four million on the six million already eligible. Employers will still be able to reject flexible working applications if they have “legitimate business concerns” but last year more than 95% of requests were met. Campaigners say this highlights the hard economic argument for equality based upon staff retention and not wasting trained talent. In the current economic climate, flexible working, which can include a wide range of measures, has brought about increased productivity and recruitment savings.

·      Women need not name male comparators in equal pay claims-Court of Appeal Ruling

The Court of Appeal has recently ruled that women no longer have to name a specific male employee as a comparator when lodging an equal pay grievance. The ruling was in response to a group of women working as healthcare and administrative staff for a number of local authorities and primary care trusts. The women had argued that like many others they had found it difficult to get information about possible male comparators because of a widespread “culture of secrecy” about pay and benefits such as bonuses. The law had required claimants to have all this information before being able to go in front of a Tribunal. The Appeal Court ruling removes this technical requirement.

It is estimated that about 7,000 equal pay claims which had been deadlocked or stalled because of this technical requirement will now go forward with much greater speed. And in the future, it will remove what had been a technical argument used to slow down and even impede equal pay claims. Westminster sources appear to be in agreement that compulsory pay audits in the private sector will not be introduced within the Single Equality Bill. But there are provisions already within existing laws and duties on the public sector to eradicate the pay gap and seek contract compliance evidence from all stakeholders, public and private, about their arrangements. The Single Equality Bill has also a little noticed amendment which will require all employers to review all their pay rates given an adverse tribunal ruling on equal pay or equal pay for work of equal value.

·      Golden “Hello” of up to £2500 now available- more on the way

Any business can now apply for up to £2,500 in recruitment and “on the job” training subsidies as an incentive to employ people who have been looking for work for six months or more. The new employment and training subsidy or “golden hello” is part of a continued package of welfare benefit and job seeker’s allowance payments which will continue apace throughout the year. The other measures include more support for people who want to set up their own business, access to over 75,000 new work based training opportunities and a brand new concept of “work focused volunteering”. The Chancellor has earmarked £2 billion for these and other initiatives to be announced in his budget in a few days time.

·      London Council fined for failures to help profoundly deaf housing applicant

A London local authority failed to interview a deaf housing applicant with a British Sign Language interpreter on two occasions, despite knowing he could not communicate effectively without one. Redbridge Council also failed to supply a telephone without a text phone so that he could use their housing advisory call centre and delayed his application by almost a year. Damages were paid to the applicant and the authority has now taken steps to train all staff in disability awareness issues as well as making remedial improvements including a new texting service.

The case is additionally interesting because the damages were not paid as a result of formal County Court action but through a complaint to the Local Government Ombudsman who stated:-

“The faults I have identified in this matter demonstrate a failure by the Council to comply with the Disability Discrimination Act in making reasonable adjustments to enable disabled people to access services”

The case helps to illustrate how other non legal channels can also sometimes be activated to secure redress of grievances and discrimination claims.

·      15 year old newspaper delivery boy takes “employer” to court!

And in a very creative way, a resourceful 15 year old paper boy has just taken his local newsagent to court! Myles Bebington had been working as a paper boy for the same local newsagent since he was 13. One day, his employer told him to start at 06.30a.m instead of the usual 7.00 start. When his mother complained that this was unlawful, the boy was sacked.

The Tribunal found in favour of the newsagent saying that was no employment contract in place between the boy and the shop. But lawyers supporting Myles were glad of his statutory right to go before a tribunal and to highlight the grievance. This would not have been possible without the 2006 Age Discrimination Regulations which are designed to extend unfair dismissal protection not just to older people but to young people and children. Prior to 2006, a boy like Myles would never have got through the front door of the courts!  And it is certain that similar cases will continue to be lodged. Even before the age new regulations came into force, cases of this kind were being raised. In December 2002, a former paperboy settled a case for more than £1,000 after he was threatened with the sack by a newsagent when he couldn’t find anyone to cover for his holiday.

·      Your holiday entitlement – new increases

The raft of April 2009 employment law changes included an increase in the minimum statutory entitlement to paid holidays. The increase for full timers goes from 24 to 28 days paid holiday a year. Part timers have a pro-rata entitlement based on the number of days they actually work. Whatever the status, a holiday should replace a worker’s normal day and they should be paid the same amount as if they were working normally.  

·      New legal framework for disputes

The legal framework to resolve employment disputes was amended on 6th April 2009 under the Employment Act of 2008 which came into operation on that date. There is a new ACAS Code of Practice which sets out the principles of what an employer and employee should do to achieve a reasonable standard of behaviour to resolve both grievance and disciplinary cases. ACAS say that the new arrangements provide for a system of dispute resolution which it is intended to be easy to use and will enable problems to be resolved earlier, with less lost time, expense and stress for all parties.QED Training provide a one day and a more intensive two day training course on disciplinary and grievance policies and procedures. Do get in touch if you would like more details.

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