In this article...

Anne Palmer reports on the latest developments in employment law including the publication of the long awaited draft Equality Bill, an update on progress of the ‘Stringer’ decision, a final decision (we hope!) on the much debated future of the working time opt out, clarification of when tips can be used to top up wages and a summary of an intriguing case concerning what amounts to a religious belief.

Equality Bill

Following much, and dare we suggest eager, anticipation the Draft Equality Bill which intends to harmonise all discrimination laws under one Act, was finally published by the Government on 27 April 2009. A copy of the draft Bill and accompanying explanatory notes can be found at here.

A number of the more controversial provisions set out in the Bill such as the proposal to extend the Bill to cover ‘multiple discrimination’ claims and also to allow representative actions, are to be the subject of an ongoing consultation process over the summer months and we will provide an depth review of the Bill once more clarity has been provided.

By way of summary however the key employment related provisions of the Bill in its current format include:-

  • A new duty on certain public authorities to consider socio economic disadvantage when taking strategic decisions.
  • An extension of associative and perceptive direct discrimination and harassment to all discrimination strands.
  • The possibility for employers to be liable in certain circumstances for harassment by third parties in the workplace.
  • An expansion of the concept of positive action to recruitment and promotion from under represented groups.
  • The potential introduction of a power to require large employers to report on the gender pay gap.
  • A ban on gagging clauses preventing employees discussing their pay with colleagues.
  • A power to enable tribunals to make recommendations that unsuccessful Respondents in discrimination claims take steps to remedy matters not just for the benefit of the individual Claimant but also for the benefit of the wider workforce.

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Opt-out ‘in’

As we reported in last month’s news round up for many months now the future of the 48 hour week ‘opt out’ which forms part of the European Working Time Directive (the ‘Directive’) has been hotly debated.
At the end of last month however the debate on this issue finally came to an end, and in the absence of an agreement being reached, the Directive as it currently stands (and which includes the opt out) will remain in force.  It is now up to the European Commission to determine whether or not to introduce a new proposal for reform of the Directive. However given the strength of support for the retention of the opt-out it is difficult to envisage any agreement being reached on anything which would propose its removal or amendment.

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Service not included…

At the start of this month the Government published its response to Consultation on service charges, tips, gratuities and cover charges and confirmed that from 1st October 2009 it will no longer be lawful to use tips to make up staff pay to national minimum wage levels.

This will replace the current system which provides that where tips and gratuities are given directly to staff by customers, and are retained by those staff without any third party being involved they cannot count towards a national minimum wage payment. Where however service charges, tips, gratuities and cover charges are paid by the employer to the member of staff via payroll then (until 1 October 2009) the tip can count towards national minimum wage payments.

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Stringer – Decision pending

As we reported in our Alert back in January 2009 the much discussed case of Stringer v HMRC has been referred back to the House of Lords to decide the outcome of the case in light of the ECJ’s ruling that :-

  • a worker who is on indefinite sick leave for the whole of an annual leave year is entitled to a period of four weeks’ paid annual leave, despite the fact they are not actually at work;
  • the national courts can decide whether the paid leave can be taken during that year, or whether it should be carried over to another year; 
  • the right to paid annual leave is carried over at the end of a leave year if the worker was on sick leave for the whole of that year; further he does not lose this entitlement if he was absent on sick leave for part of the year and was still on sick leave when his employment terminates. 

The House of Lords heard the case on 29 April 2009 and their decision is expected within 6 – 8 weeks of that date. We will let you know as soon as there are any developments.

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What is a religious belief – a lot more than we first thought potentially?

In the recent case of Nicholson v Grainger PLC and Others ET 2203367/08 (at the time of going to print there was no web link available to the judgment) an Employment Tribunal has found that an individual employee’s belief about climate change was capable of being a “belief” for the purposes of the Employment Equality (Religion of Belief) Regulations 2003 (the ‘Regulations’).

By way of reminder the definition of belief in the Regulations is ‘any religious or philosophical belief” and during the pre hearing review (held to consider amongst other matters whether his beliefs were protected under the Regulations) Mr Nicholson argued that his beliefs relating to climate change and the need to reduce carbon emissions were ‘not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears”.

In finding that these beliefs did give rise to a moral order similar to most religions and which were therefore protected under the Regulations’, the Tribunal rejected an argument that beliefs derived entirely from empirical evidence could not be a ‘philosophical belief’.

Whilst this is ‘only’ a tribunal decision it has been reported as being the first case in which a Claimant has successfully argued that a belief which is not similar to a religious belief may be protected under the regulations.  Time will tell if the regulations will therefore have a wider ambit than first anticipated.

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