Equality Act receives Royal Assent
The Equality Act received Royal Assent on 13 April 2010, with the majority of its provisions taking effect this October. The full text of the Act is now available here.
The explanatory notes have also been published.
Associative discrimination: Coleman settles
As we reported in the November 2009 edition of Employment Eye, the Employment Appeal Tribunal has confirmed that the Disability Discrimination Act covers discrimination by ‘association’ with a disability person; it is not necessary for an employee to be disabled themselves in order for them to bring a claim under the Act. This case has now settled (for an undisclosed sum) and there will be no further appeals. There are two points to note in regard to this development:
- this means that the case will not be remitted back to the original Employment Tribunal in which it was first lodged (in August 2005!) for a merits hearing, so we will not know whether the allegations made by Ms Coleman did occur or whether they were sufficient to amount to ‘associative discrimination’; and
- the Equality Act will legislate for ‘associative discrimination’ when it comes into force.
Whistleblowers and new ET1 form
From 6 April 2010, claimants who lodge a claim under the Public Interest Disclosure Act (‘whistleblowers’) will have the option to consent to their claim form being sent to a relevant regulator. The new ET1 forms have now been published by the Employment Tribunals Service, and a new unit will be set up to administer the processing of PIDA claims to the relevant regulator.
Employment tribunal survey results
BIS has published the results of its survey of employment tribunal applications.
Findings of note were as follows:
- 72% of claims were from the private sector and 19% from the public sector (a change from 2003, where 82% were in the private sector and 12% in the public sector);
- claimants are more likely to be men (except in discrimination cases, where 82% of claimants were women);
- claimants are more likely to be managerial workers, aged 45 or over but less likely to be in professional occupations;
- a large number of claims came from the hotel, restaurant and finance sectors;
- 58% of cases were settled. The mean settlement figure was £5,431 and the median settlement figure was £2,000;
- the two most commonly mentioned negative effects for employers were low staff morale (11%) and ‘interrupted business / increased stress levels’ (6%);
- large employers were disproportionately involved in discrimination cases.
Guidance on vetting and barring published
The Government has published full guidance on the new vetting and barring scheme, which is being phased in between January 2009 and July 2015. The guidance has been developed for those covered by the scheme to provide to provide information about how the scheme works and to help prepare for registration. It covers the scope of the scheme, how the registration process will work, how employers will be affected, and when all this will happen.
Employment tribunal decision: equal pay & TUPE
The Newcastle Employment Tribunal has handed down its decision in Jones and others v Blackpool, Fylde and Wyre Hospitals NHS Foundation Trust and others. This case concerned the question of whether the time limit for bringing an equal pay claim should start to run when an NHS Trust is dissolved or converted from an NHS Trust to an NHS Foundation Trust.
The Employment Tribunal found that:
(1) the dissolution of an NHS Trust or PCT by statutory instrument gives rise to a transfer, which sets a time limit of 6 months running for the purpose of enforcing a claim for equal pay for a period of common employment with a comparator, prior to the transfer; and
(2) conversion from NHS Trust to Foundation Trust status does not amount to a transfer, and so the consequences set out in point 1 above would not apply.
This is good news for employers, as it confirms that it is open to an employer to run a time limit defence in the case of dissolution. That said, this decision should be treated with some caution as,
- it is a first instance decision and, as such, it would be open to another tribunal to reach a different conclusion; and
- it is likely to be appealed. In fact, the Employment Judge’s written reasons noted that this case was likely to be appealed all the way to the European Court of Justice. We will keep you informed of any developments.
‘Piggyback’ equal pay case settled
Last June, the Employment Appeal Tribunal decided in South Tyneside v McAvoy that male colleagues of female equal pay claimants may ‘piggyback’ on female colleagues’ claims. For example, male healthcare assistants can claim equal pay with female healthcare assistants who have increased their wages by successfully comparing themselves to, for example, male porters. This case was due to be heard next week in the Court of Appeal, but it has now settled, which means that the decision of the Employment Appeal Tribunal will stand.
Eruption disruption
The travel problems caused by the cloud of volcanic ash over Europe have been well documented, but how should employers deal with the inevitable knock-on effect of staff absence. Some points to consider are:
- what your policies and procedures say about unauthorised unexpected absence, whether by reason of severe weather conditions or being ‘stranded’ abroad;
- in the absence of any express agreement to the contrary, employees are not generally entitled to be paid if they do not attend at work, even if their absence is caused by something entirely beyond their control;
- nonetheless, it is open to employers to be more lenient, taking into account the unusual circumstances;
- employers may also wish to consider other options apart from unpaid leave, for example, (where possible) allowing employees to take the time as paid annual leave, or arranging for employees to work remotely;
- some employees may not be able to attend work because schools or nurseries are shut due to staff absence. In these circumstances, they may be entitled to take time off as emergency leave to care for dependants (for which there is no automatic entitlement to be paid).
As always, however you decide to deal with unexpected staff absence (whether due to volcanoes, or the wrong type of snow or leaves on the line) you should ensure that you act fairly and in accordance with any policies that you already have in place.
STOP PRESS! Equal pay and Agenda for Change
The case of Potter v North Cumbria Acute Hospitals NHS Trust (No 2) has been dismissed by the Court of Appeal, although we are awaiting the publication of the full judgment. In brief, the issue in question was whether the introduction of Agenda for Change, of itself, triggered the 6 month limitation period for equal pay claims to be brought.
The Employment Appeal Tribunal held that Agenda for Change was a variation, rather than a rescission, of existing contracts and, therefore, the introduction of Agenda for Change did not start the 6 month time limit running. The Court of Appeal agreed with the Employment Appeal Tribunal and held that Agenda for Change did not terminate stable employment relationships in existence at the time that it was introduced. Time only starts to run for the purposes of lodging an Equal Pay claim where the 'stable employment relationship' has come to an end; and this had not happened on the introduction of Agenda for Change. Therefore, claimants who did not lodge their equal pay claims within 6 months of assimilation to Agenda for Change may continue with their equal value claims for the pre-Agenda for Change period.