News round-up September 2010

Tim Woodward takes a look at: some of the key provisions of the Equality Act coming into force in October; annual statistics for the EAT; the EAT and reasonable adjustment and lastly Acas and TUC have published a guide on mediation.

In this article...

• Equality is the soul of liberty
• 98% of all statistics are made up...
• Adjustments are made of social unrest and revolutions... 
•  What’s the difference between a ‘loss’ and a ‘theft’?
• And finally....

 

“Equality is the soul of liberty”

Historically, the 1st of October is certainly a day when blows are struck for equality amongst all men (and women).  It happens to be ‘National Peoples Day’ in The Peoples Republic of China and also the date that campaigning newspaper The News of the World was launched in 1843.  In 2010, it is the date on which a number of key provisions of the Equality Act come into force.  The changes include the following.

• Consolidation and harmonisation of the basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport
• The new concept of "discrimination arising from disability", to restore the protection from "disability-related discrimination" lost as a result of the Malcolm case
• Preventing employers from asking pre-employment health questions, except in specified circumstances (section 60)
• Making pay secrecy clauses unenforceable (section 77)
• New powers for employment tribunals to make recommendations in relation to the workforce as a whole (section 124)
• Provisions allowing voluntary positive action (section 158)

 

“98% of all statistics are made up…”

The Tribunals Service and Ministry of Justice have published annual statistics for the Employment Tribunal and EAT for the period 1 April 2009 to 31 March 2010. The statistics show the following.

• An overall increase in the number of Employment Tribunal claims by 56% on 2008/09. This is largely as a result of the rise in multiple claims, which rose by nearly 90%, but is also stated to be "partly as a result of the changing economic climate".
• The greatest increases were in claims in relation to working time (297%) and unauthorised deductions (122%). These increases are apparently mostly due to "multiple airline industry cases that are re-submitted every three months" (presumably the claims relating to calculation of holiday pay).
• Claims for redundancy payments increased by 76%, age discrimination claims increased by 36% and breach of contract claims increased by 29%. However claims for failure to inform and consult on redundancy reduced by 34%.
• The claims most likely to be withdrawn are equal pay claims (71% of claims withdrawn) and sex discrimination claims (57%).
• The claims most likely to be settled as a result of conciliation via Acas are disability discrimination claims (45%).
• The claim that is most likely to be successful is for redundancy pay (24% of claims were successful at tribunal).
• The Employment Appeal Tribunal (EAT) received 1,963 appeals and disposed of 1,848, compared to 1,794 and 1,933 respectively in 2008-09.

  Average awards of compensation

Types of claim	Mean (average)	Median	Maximum
Unfair dismissal	£9,120	£4,903	£234,549
Race discrimination	£18,584	£5,392	£374,922
Sex discrimination	£19,499	£6,275	£442,366
Disability discrimination	£52,087	£8,553	£729,347
Religious discrimination	£4,886	£5,000	£9,500
Sexual orientation discrimination	£20,384	£5,000	£163,725
Age discrimination	£10,931	£5,868	£48,710

“Adjustments are achieved by social unrest and revolutions….” 

The EAT issues guidance on reasonable adjustments

The EAT, in Secretary of State for Work & Pensions v Wakefield, has endorsed guidelines set out in a case called Environment Agency –v- Rowan on whether an employer has failed to make a reasonable adjustment.  The case will continue to be relevant even after the Equality Act 2010 comes into force. Please see our full report in this month's edition of Employment Eye "Am I being unreasonable".     

What’s the difference between a ‘loss’ and a ‘theft’?

Quite a lot, according to the Employment Appeal Tribunal.  In Celebi v Scolarest Compass Group UK, an employee was sent a suspension letter regarding the “loss” of £3000, followed by a ‘step one’ disciplinary letter, which cited allegations of “incorrect reporting of stock figures, following of financial procedures and discrepancies in banking”. The Employment Appeal Tribunal held that this was insufficiently precise to justify the employer’s dismissal of Mrs Celebi, despite the fact that the employee was aware that the allegations against her were for the theft of £3000.  The dismissal was deemed to be unfair under the ‘ordinary’ principles of fairness, and also automatically unfair under the statutory disciplinary procedure (which was repealed in April 2009).  The case has now been remitted to an Employment Tribunal to decide on the level of award to be paid to Mrs Celebi, although this may well be reduced to take account of any contributory fault.

This is a salient reminder that, as unpalatable as it may be to make accusations of employees, it is important that disciplinary letters frame allegations absolutely accurately.

And finally…

Acas and the TUC have published Mediation: A guide for trade union representatives, which highlights the benefits of using mediation to resolve workplace disputes.   Copies can be accessed on the ACAS website www.acas.org.uk.