Lara Feghali provides a summary of employment law news this month, including information on the draft guidance for agency workers, an update on recent case law concerning discrimination on the grounds of sexual orientation and religion or belief, and details of increases to the National Minimum Wage.

Draft guidance on agency workers published

The Government has now published draft guidance  on the Agency Workers Regulations 2010, which are due to take effect on the 1 October 2011. When the Regulations come into force they will give temporary agency workers the right to equal treatment in comparison to permanent employees with regard to basic working conditions. The Department for Business Innovation and Skills (BIS) has also published a quick start guide to the Regulations.

Comments on the draft guidance were closed on 15 April 2011 and the final guidance is expected to be published at the end of April. There are several key areas which are clarified by the guidance such as

  • further detail on how to calculate the 12 week qualifying period, when breaks cause the qualifying period clock to pause and how the qualifying period clock re-starts
  • when an agency worker will be entitled to a bonus and how personal performance for the purpose of awarding a bonus can be assessed; and
  • how to help ensure that an agency worker receives equal treatment. The draft guidance introduces the notion of the "as if " test: in most cases equal treatment can be established by giving the agency worker the same relevant entitlements "as if" the agency worker had been directly recruited by the hirer as an employee or worker to the same job.

Homophobic banter

In the case of Thomas Sanderson Blinds Ltd v English (UKEAT/0316/10), the Employment Appeal Tribunal has upheld an employment tribunal decision that a heterosexual employee who was subjected to homophobic banter at work did not suffer harassment under the Employment Equality (Sexual Orientation) Regulations 2003. The EAT held that the employment tribunal had correctly taken into account the employee’s own “extremely offensive behaviour” and the fact that he had not complained about his alleged tormentors and had continued to be friends with them.

One further point to note about this case is the fact that the Court of Appeal held, as a preliminary issue, that the employee could be protected by the Sexual Orientation Regulations even though he was not gay and his tormentors did not perceive him to be gay.  The Court confirmed that the only requirement was for the conduct complained of to be based on sexual orientation, notwithstanding the sexual orientation of the complainant (whether perceived or otherwise).   This principle has now been legislated for in the Equality Act 2010.

A belief in the “higher purpose” of public service broadcasting is protected by discrimination law

In Maistry v BBC (ET1313142/10) an employment tribunal has held that a belief in the “higher purpose” of public service broadcasting is a philosophical belief under the Employment Equality (Religion or Belief) Regulations 2003 (now repealed, but equivalent provisions are in the Equality Act 2010).

The BBC argued that Mr Maistry’s belief should not qualify for protection as the regulations could not have been intended to cover “mission statements” which were aspirational in nature. They also argued that Mr Maistry’s belief was a political opinion and pointed to previous case law (Kelly and other v Unison ET/2203854/08) which had held that Marxist views could not amount to a philosophical belief.

In deciding that Mr Maistry’s views did amount to a philosophical belief the judge commented that Mr Maistry’s views were a belief rather than a viewpoint as the importance of public service broadcasting has attracted commentary from leading academics and the Director General of the BBC indicated that this was more than just a transitory viewpoint. The fact that Mr Maistry’s belief was derived from the public aims of the BBC did not exclude it from protection, regardless of the fact that these aims were idealistic. The judge also did not accept that Mr Maistry’s belief was a political belief.

The judge in this case appeared to be influenced by the strength of the Claimant’s feelings and the fact that his belief was of personal significance to him. This leaves employers with some uncertainty, as being passionate about ideas which stem from personal experience would previously have been considered to be incapable of protection by the courts as a philosophical belief.

New national minimum wage rates announced

The Department for Business, Innovation and Skills has announced that the National Minimum Rates (“NMW”) will be increased with effect from 1 October 2011. The changes will be as follows:

  • The adult rate will increase by 15p to £6.08 an hour;
  • The rate for 18-20 year olds will increase by 6p to £4.98 an hour; 
  • The rate for 16-17 year olds will increase by 4p to £3.68 an hour; and 
  • The rate for apprentices will increase by 10p to £2.60 an hour.

The Government announced in the Budget that they will be inviting the low pay commission to consider in their next report the best way to give businesses greater clarity on future levels of the NMW, including considering making two year recommendations as to what the NMW should be. It is hoped that this would help businesses to plan their employment and investment decisions.

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