The headlines were grabbed yesterday by the leak of the Beecroft report’s proposal to abolish unfair dismissal in capability cases. Only slightly less newsworthy was Nick Clegg (the Lib Dem Deputy PM, leader of the supposedly caring party of government) announcing proposals to allow employers to have “protected conversations” with employees.  This is all part of the same agenda to cut red tape for business and to allow employers to get rid of underperforming workers and, interestingly, to discuss retirement with older workers, without the fear of being hauled off to an ET.

Is Clegg protected?

At the moment some employers try to have “without prejudice” conversations with an employee where things are going wrong but, strictly speaking, without prejudice only provides privilege from disclosure if it is an attempt to settle a dispute. An initial discussion to say “you’re not up to the job” or “here is a compromise agreement, take it and leave or otherwise we’ll discipline you” wouldn’t be covered.  A “Protected Conversation” presumably intends to cover these preliminary discussions prior to the actual settlement negotiations, if it ever gets that far.

Other employers might want to suggest having an “off the record” conversation, but nothing is ever really off the record and this only works if both parties want it to.  So, as a method of dispute resolution or even dispute prevention, in principle it isn’t a bad idea.  I just wonder how it would actually work in practice.

Rick, from Flip Chart Fairy Tales has written an excellent blog on the subject – click here – and I won’t repeat the points he makes. XPert HR has also blogged giving 15 reasons why protected conversations won’t work. Reason number 8 is worth careful consideration: you can just see this being abused. Reason number 3 is also very valid.  The abolition of retirement is not yet a year old and already the government is looking for ways to circumvent it.  Expect challenges under European legislation if protected conversations are brought into law.

The government should have learned its lesson from the 2004 statutory dispute regulations – on paper they looked simple enough but in practice were a complete nightmare and had to be abolished in 2009.  What often looks like common sense as a headline grabbing initiative, actually proves unworkable once put into practice. Employers will probably come to find them not the solution  they thought them to be once the actual details are in place – which will be hugely complicated and will need a whole HR department to make them work. Far from cutting red tape it will increase it.

We’re promised a “major package of employment law in the autumn aimed at helping business, including reform to employment tribunals” – it will be well worth the wait.

Related posts:

1. Mediations Not Protected Conversations?
2. Are They Having a Protected Conversation?

Protected Conversations? Protecting Who? originally appeared on Jobsworth by Michael Scutt on 27/10/2011.

Choices, choices

Many employees often suspect they have been unfairly placed in the “departure lounge” when their company decides to restructure. Sometimes it is obvious there has been unfairness, or discrimination, in the process.  On other occasions it’s much harder to prove even if suspected and the recent case of Dabson v David Cover & Sons Ltd doesn’t help employees much.  On the other hand, employers will be relieved.

The main requirement for an employer seeking to make redundancies is to conduct a fair selection process.  The old mantra of “Last In First Out” can be problematic these days, so some other method needs to be found.  When a business decides to stop trading in a certain product then it may be fairly easy to say that all employees associated with that product should be made redundant, unless they can be redeployed elsewhere in the business.  Or if a unique role is being removed then the selection of the person carrying out that role is fairly clear cut.  However, what happens when you have ten people in a team and the employer decides it needs to reduce the size to five persons. How does an employer choose which employees to select?

The answer is to have a selection process using objective criteria. It’s not foolproof and how an employer scores the employee can be criticised.  For instance in De Belin v Eversheds the EAT held that it was wrong for an employer to artificially favour a woman on maternity leave in a selection when that had the effect of selecting a male colleague for redundancy.   There is still room for an employee to claim that they were unfairly scored against it.  Employees often claim that the manager scoring them either didn’t know them well enough to make a judgment or bore some grudge or were in some way biased against them. In the case of Mr Dabson, he argued that the manager who scored him did so unfairly and acted improperly in scoring him as he did. There had been a history of friction between the Claimant and the line manager.  On the facts as reported in the caser the final decision does look harsh on the employee.

However, the EAT held that the employer had acted reasonably and repeated previous law to the effect that it is only in a case where there is obvious mistake or an absence of good faith that the scores should be scrutinised.  Those will probably be exceptional circumstances and it makes it very difficult for an employee to challenge in these circumstances.  If employees want to run this type of argument they will need to gather their evidence together   as soon as they can.  Employers can’t relax completely though.  Challenges will still arise but provided an employer can justify their decision and show they have followed a fair and reasonable decision making process they should avoid an adverse finding at Tribunal, which isn’t to say that grievances won’t continue to be issued or letter of claim sent.

This decision suggests that employees don’t have things all their own way, despite what is often said.

Related posts:

1. How Should Employers Select Employees for Redundancy?
2. Redundancy – know your rights!
3. Consultation on Redundancy

Redundancy Selection: Now Harder for Employees to Challenge? originally appeared on Jobsworth by Michael Scutt on 22/06/2011.

There was  a lot of coverage last week in the media on the outcome of the case of Hall & Preddy v Bull & Bull involving the clash of religious beliefs and gay rights.  It wasn’t an employment case but a dispute over discrimination (against a homosexual couple) in service provision, in this case Mr & Mrs Bull, a devout Christian couple who ran a B&B and refused to allow Mr Hall and Mr Preddy to stay in their B&B because it offended their religious beliefs.

It’s a very readable Judgment, particularly the opening paragraphs. For an excellent analysis of the law see Mrs Markleham’s blog here and for a thoughtful counter-argument from Steven Mather see here.

The Judge held it to be an instance of “direct discrimination”, as opposed to “indirect discrimination”, because only married (and thus heterosexual) couples were allowed to take a double room, which disadvantaged Messrs Hall and Preddy because (being gay) they were in a civil partnership.  The relevant law is contained in the Equality Act (Sexual Orientation) Regulations 2007. The crucial point is that those Regulations specifically provide that there no distinction is to be made between married couples and those in a civil partnership (s.3(4)),

In the workplace both religious belief and sexual orientation are protected by legislation, as they are in service provision cases.  What happens when both collide, as here?  The Judge held that the gay couple were entitled to compensation and awarded them £1,800 each.  Cue much wailing and gnashing of teeth from the Christian corner over how their rights had been infringed. The Judge did give leave to appeal and it will be interesting to see if Mr and Mrs Bull do pursue what is a very difficult issue of competing rights in a free society.

I think there are two points to make about this;

1. This case doesn’t mean that Christians have to accept homosexual people into their homes if they don’t want to. In this case they were running a business – a B&B – a very different matter. They weren’t obliged to let Messrs Hall & Preddy into their private quarters.

1. Discrimination is always wrong.  For instance, if the guests had been refused entry because they were black, or Jewish, or disabled (remember why Glenn Hoddle resigned as England manager?) what would have been the reaction then?

In Thursday’s The Independent a letter writer posed the question “what would have happened had a couple called Mary (heavily pregnant) & Joseph turned up at the B&B and announced they needed a bed for the night and then announced that Joseph wasn’t the biological father”?  How would Mr and Mrs Bull’s religious convictions dealt with that one?

Related posts:

1. Redundancy – know your rights!
2. Climate change can be a philosophical belief
3. What is a reasonable belief?

A Clash of Cultures: Gay Rights vs Religious Belief originally appeared on Jobsworth by Michael Scutt on 24/01/2011.

Today marks the introduction of the long-awaited Equality Act (EA10), a piece of legislation proposed by Labour and brought in by the current government.  Click here for the BBC’s story on it. Coincidentally perhaps, today also sees the general release of the film “Made in Dagenham” about the 1968 strike by women at the Ford car factory over sex discrimination and is credited with having led to the Equal Pay Act 1970.

I’ve written several pieces about EA10 on this blog just recently and I’ll add more from time to time.  Despite all the fanfare though, there are significant questions being asked about the effect the Act will have on the cause of equality in this country. Yes, employers will have to stop using pre-employment health questionnaires and will need to beware of third party harassment claims but, in the main, EA10 just consolidates the previous law and does some tinkering at the edges.  More provisions will come in over the next couple of years, such as dual discrimination claims, but for the time being things look pretty familiar.

Undoubtedly great strides have been made over the last forty years to make racism, sexism, homophobia etc unacceptable in society and quite right too. However, the Equal Pay Act 1970, which is abolished by EA10, was a failure: it is very complicated and expensive to pursue claims and 40 years on, there is still very significant gender based pay inequality in the workplace.  According to a report in The Guardian last month equal pay for women will not arrive until 2067.  The Chartered Management Institute conducted a survey which showed that women’s salaries increased by 2.8% on average over the last 12 months, compared with 2.3% for men, but male managers (on average) are paid £10,031 more than women managers. The situation is worse in the IT and pharmaceutical sectors than other sectors of the economy and the UK sees more gender pay inequality than elsewhere in the European Union.

The last Labour government planned to make employers disclose gender pay levels and to ban “pay secrecy” clauses in contracts of employment.  That hasn’t happened and the final position is more complicated. Pay gagging clauses are now unenforceable and employers need to consider whether to remove them from the contracts they hand out to new employees.  EA10 protects employees who discuss their pay with colleagues for the purpose of “making or seeking to make a relevant pay disclosure”.  In other words, if the employee is trying to ascertain whether they are being underpaid because of discrimination on the grounds of any one of the protected characteristics (and not just gender) under the Act, it would be unlawful for the employer to discipline them or to victimise them because of making or seeking that information.  The problem for employers is to determine when a “relevant pay disclosure” has been made – get it wrong and a claim for victimisation might arise.

Pay inequality is not going to be removed until full disclosure is required.  The current government is said to be considering its position on this issue. However, to force employers to disclose gender pay levels is going to be politically risky and might lead to discord between the parties in the Coalition Government.

The Government Equalities Office has published a useful guide to EA10 – click here to access it.

Related posts:

1. The Equality Act 2010: 24 Days and Counting #1
2. The new Equality Bill
3. What Should Employers do About Third Party Harassment: Equality Act 2010 #4

The Equality Act: Here at Last – Worth the Wait? originally appeared on Jobsworth by Michael Scutt on 01/10/2010.

There are 24 days to go until the new Equality Act comes into force on 1^st October.  It’s a hefty piece of legislation – 218 sections with 28 Schedules – and covers all aspects of discrimination and harassment in the workplace.  Although a consolidating piece of legislation, it also introduces new claims, simplifies and unifies others and will be giving HR and employers everywhere headaches.  In the run up to the commencement of the Act I will be taking a look at the headline points.  Tomorrow I will cover the Act’s restriction on the use of pre-employment health questionnaires and medicals, today I will set out the main framework of the Act. ACAS has produced a very useful summary of the Act for employers – click here.

The Equality and Human Rights Commission was created to oversee the implementation of the legislation and to  promote human rights and equality.  As well as providing guidance and formulating policy it has been given some  real teeth in enforcing the new Act, as I shall mention in later posts.  The website contains large amounts of useful  advice that can be downloaded as a PDF file.

Prior to  The Equality Act 2010 (“EA10”) anti-discrimination law was contained in a variety of different pieces of    legislation – the Race Relations Act, Sex Discrimination Act, Disability Discrimination Act etc.  All that legislation  will be swept away by EA10 and replaced by the one Act, which will cover all types of discrimination and harassment. The Act protects eight “Protected Characteristics”, which are the same as under the old law.  They are;

1. Age
2. Disability
3. Gender Reassignment
4. Marriage/Civil Partnership
5. Race
6. Religion/Belief
7. Sex
8. Sexual Orientation

In other words it is illegal to discriminate against someone if they fall into one of these categories.  It is not, of course, as simple as that.  There are different ways of discriminating against a person and in some cases new types of claim will be possible.  The four different ways in which a person can be discriminated against are;

1. Direct Discrimination
2. Associative Discrimination
3. Perceptive Discrimination
4. Indirect Discrimination, and

Three types of harassment claim are allowed;

1. Harassment
2. Third Party Harassment
3. Victimisation

Direct Discrimination is where a person is treated less favourably than another person because of a protected characteristic they have or are thought to have.    A person who is turned down for a job or selected for redundancy because they are gay, would be a victim of direct discrimination.  If that same person was treated less favourably because they were thought to be gay, they would be a victim of perceptive discrimination.  It is irrelevant for perceptive discrimination whether they hold that protected characteristic or not. The only type of Direct Discrimination that can be justified (as a defence) by the employer is in respect of age.

Associative Discrimination is a type of discrimination that gets expanded in scope, it already having applied to race,   religion/belief and sexual orientation.  It now applies to all protected characteristics except marriage/civil partnerships    and pregnancy/maternity, probably because sex discrimination covers it.  In other words if someone is treated less  favourably because they associate with someone who has a protected characteristic they will be covered.  The case of    Coleman v Attridge Law [2008] which went all the way to the European Court of Justice, held that the existing UK law had  not complied with the European Framework Directive and found that Mrs Coleman, a legal secretary could claim for  disability discrimination because she was denied the right to work flexibly to care for her disabled son.

Indirect Discrimination can occur when a person is disadvantaged by a policy or rule that applies to everyone but  disadvantages a certain sector, unless that rule or policy can be justified on the basis that it was “a proportionate means of  achieving a legitimate aim” in managing the business. The ACAS Guide referred to above gives the hypothetical example  of a bookstore that asks all its employees to work on Saturdays, which John, who is Jewish, objects to because it is the  Jewish Sabbath day.  When he asks to be excused Saturday working the employer dismisses him.  Unless the bookstore  can demonstrate that it acted proportionately and legitimately, it will probably be guilty of indirect discrimination.

Harassment and Victimisation are not new types of claim under EA10, but they have been extended and changed.  Harassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating of offensive environment for that individual”.  Note that the conduct must be related to a protected characteristic and claims are possible for harassment by association and perception. It is also possible for a person to claim harassment even if they were not the intended recipient of the conduct.   Victimisation is a claim that a worker can make if they are treated badly because they have made or supported a discrimination complaint or grievance under EA10.

A much extended type of claim is for Third Party Harassment. Under EA10 an employer will be liable to an employee who is harassed (see above definition) by a non-employee (a customer or supplier for example) but only after the third incident of the unwanted behaviour occurs, the employer is aware of it and has not taken any reasonably practical steps to prevent it.

Employers need to be reviewing their policies and procedures to ensure compliance.  If you need any advice or further assistance please contact me at michaelscutt@dalelangley.co.uk.

I will deal in another post with the defences available to employers under EA10.

Tomorrow: Why employers should not ask pre-employment health questions.

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Boring Legal Disclaimer

The above summary is only my understanding of the law and does not constitute legal advice to you.  You should not take any action in reliance upon it.  Don’t blame me if it goes wrong.

Related posts:

1. Disability Discrimination Claims to Get Easier? Equality Act 2010 #5
2. What Should Employers do About Third Party Harassment: Equality Act 2010 #4
3. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2

The Equality Act 2010: 24 Days and Counting #1 originally appeared on Jobsworth by Michael Scutt on 06/09/2010.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

The case of Grainger PLC v Nicholson UKEAT/0219/09/ZT gained lots of media coverage, including the front page of today’s The Independent (“Green beliefs win legal protection”).  I covered the case when it was before the Employment Tribunal and Mr Nicholson initially won.  The Employment Appeal Tribunal (EAT) has rejected the company’s appeal and held that Mr Nicholson’s belief in climate change is capable of qualifying as a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. These regulations protect workers with religious or philosophical beliefs from being discriminated against because of their religion or belief.  This was a preliminary hearing on whether belief in climate change could qualify within the meaning of those Regulations.  Mr Nicholson still needs to return to the ET for the case on its facts to be decided.  That will include cross-examination of his beliefs to establish to what extent they govern his life.

It is predicted that this decision will lead to employees being able to claim that they have been discriminated against on the ground of any spurious or loony belief that they might have or pretend to hold.  Undoubtedly employers are going to face some interesting assertions of belief over time.  To assist in considering what factors should be taken into account when considering the nature of the asserted belief, the EAT set out some guidelines for deciding whether a “philosophical belief” should qualify;

1. The belief must be genuinely held
2. It must be a belief and not an opinion or viewpoint based on current information
3. It must be a belief as to a weight and substantial aspect of human life and behaviour
4. It must attain a certain level of cogency, seriousness, cohesion and importance
5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others   

The judgment notes that political beliefs could qualify for protection and, given the furore over Nick Griffin’s recent appearance on BBC’s Question Time and subsequent media concern that the BNP is on the rise, it is interesting to consider whether a member of the BNP  who is dismissed from his/her job because of support for the BNP could qualify under these Regulations for protection.  This was raised in Grainger and the Court pointed to (5) above as the limitation which should prevent “racist or homophobic political philosophy” from gaining protection.  On the face of it, therefore, the hypothetical BNP member would not be able to claim under these Regulations.  This is, of course, a fairly new area of law and that particular issue has not yet been tested.   

Please contact me with any comments or details of any other cases that take this point further, or if you simply need advice on your own position.  I can be contacted on 0207 464 8433 or via email at michaelscutt@dalelangley.co.uk

Related posts:

1. Climate change – the new religion?
2. A Clash of Cultures: Gay Rights vs Religious Belief
3. Should employers be scared of Jedism?

Climate change can be a philosophical belief originally appeared on Jobsworth by Michael Scutt on 04/11/2009.

Two recent cases before the Suffolk ET highlighted the risks that employer face when making redundancies.  In this particular matter, Obikwu v British Refugee Council and Ukwaja v British Refugee Council (BRC), two (black) immigration workers were selected for redundancy by their employer, the BRC.  The ET found in favour of both workers in April 2008, but it was only in the last few days that Mr Obikwu’s remedies hearing took place which settled the level of compensation to be paid to him. Ms Ukwaja’s case was determined last January.

They both worked at the Oakington immigration centre in Cambridge.  Plans were announced to close it in May 2006 but were subsequently suspended.  However five months after the decision to close it was put on hold both of the claimants were made redundant.  Their departure removed the only two non-white employees from the staff at the building.  Not surprisingly, both brought claims for unfair dismissal and race discrimination. 

How did this situation arise?  The ET held that the manager in charge of selecting candidates for redundancy, one Anne-Marie Leech, had “subconsciously” favoured colleagues with whom she was friendly.  The Claimants alleged that she was “consciously biased” against them (although the ET rejected that allegation), which was probably not surprising because Ms Leech hosted a party at her house (to which the two Claimants were not invited) and none of those people who did attend were selected for redundancy. It’s not clear from the newpaper reports whether Mr Obikwu and Ms Ukwaja were the only employees made redundant, or just the only two ethnic minority employees amongst a wider cohort.  The ET Chairman noted that white workers with less experience were selected to remain in employment over the two Claimants.  In the circumstances it is not surprising that they both won.

There are two legal issues raised in this case.  One concerns the need for employers to have fair and reasonable (and objective) selection criteria when choosing which employees to select for redundancy.  If an employer fails to make an objective choice then the affected employee may have a claim for unfair dismissal (if they have more than 12 months continuous employment experience at the date of termination).  The maximum compensation that an ET can award for unfair dismissal is capped at £66,200 plus a basic award of £350 per year of service. However, and this is the second legal issue raised in this particular case, if the employer selects an employee for redundancy on grounds of their race, colour, nationality or ethnic or national origin that will amount to an automatically unfair dismissal.  An employee who believes they have been discriminated against on grounds of their race will probably be advised to bring a claim under the Race Relations Act 1976 for compensation because, unlike the compensatory award for unfair dismissal under the Employment Rights Act (ERA), that award is not capped.  That can lead to a very substantial award being made, because the ET can also award compensation for injury to feelings, as well as loss of earnings and other financial losses.  There is also no 12 month qualifying period required under RRA claims.  The employee cannot claim compensation under the RRA and a compensatory award under the ERA.

Mr Obikwu was awarded £65,475 for unfair dismissal, racial discrimination, psychiatric injury and loss of earnings.  I haven’t seen how the award was broken down so it is hard to say what value the ET put on each head of claim.  However, in the case of Ms. Ukwaja, she was apparently awarded £30,000, which comprised £15,000 for injury to feelings due to racial discrimination, £8,349 for unfair dismissal, £5,000 for discrimination and £2,643 for interest on lost earnings.       

From a legal point of view there was nothing particularly noteworthy about these cases.  What caught the eye of the media though was the fact of a charity involved with refugees unfairly dismissing and racially discriminating against two ethnic minority staff: the BRC deserved to be censured for that. However, not everyone might agree with that:  I found one report of the cases on The Independent’s website and read some of the comments that followed the report.  Sadly, some of the respondents saw this story as an example of “another utterly baseless thought crime!  Another opportunity to redistribute monies to chosen victim groups, taken with relish” and “It’s a bit naughty taking a charity to court, surely the funds raised by the Refugee Council would be better spent on helping everyone in [the] developing world move to Europe than on handouts to disgruntled employees”.  No, actually.  The anti-discrimination laws exist for a reason; no employer is exempt.  The whole episode leaves a nasty taste in the mouth.

Related posts:

1. Redundancy and Age Discrimination
2. Should the Government Cap Discrimination Awards?
3. Bankers and Age Discrimination

Race Discrimination and Redundancy originally appeared on Jobsworth by Michael Scutt on 05/06/2009.

This is something we will be hearing a lot more about over the next few months and years.  At last the government has introduced legislation that seeks to rationalise the current miasma of anti-discrimination legislation and bring it all into one piece of legislation. 

At the moment, in the workplace environment, six types of discrimination are outlawed – age, race, sex (gender), sexual orientation, religious belief and disability.  Each piece of legislation behind each type is different in certain respects so a new Act that contains all the relevant definitions, duties and defences is to be welcomed.  Whether, in practice, the Equality Act (if it gets that far) will be is another matter.  Undoubtedly it will change as it goes through Parliament but here are the current headlines

1. The Secretary of State will be given power to order employers with more than 25o employees to publish information about male and female pay levels, with a view to thus highlighting discrepancies in pay between the sexes.  This won’t be enforced for at least the next four years though.

2. Secrecy clauses in employment contracts forbidding staff discussing their pay and bonuses (what’s a bonus?) will be outlawed.

3. Associative discrimination will be made illegal.  This means that, as in a recent case, a carer of a disabled person is dismissed because of her caring obligations, she will be able to claim disability discrimination even though she is not herself disabled. 

4.  There will be new definitions of indirect discrimination and disability discrimination.

5.  Positive discrimination at recruitment in favour of disadvanteged groups will be allowed when the candidates are otherwise equally matched.  

6. Public bodies also have duties imposed upon them to promote equality.

The Bill has been mooted for some time now and it will be interesting to see how much survives the scrutiny of Parliament, especially at a time when the economy is in deep recession.  Many employers, no doubt, will not relish having additional burdens placed upon them by government.

Related posts:

1. Disability Discrimination Claims to Get Easier? Equality Act 2010 #5
2. The Equality Act 2010: 24 Days and Counting #1
3. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2

The new Equality Bill originally appeared on Jobsworth by Michael Scutt on 28/04/2009.