4. New Family Leave Entitlements
Mothers
Paid time off
to attend
2 weeks –
paid
Further 50 weeks
maternity leave
or
Up to 50 weeks SPL
(shared with father)
Up to 37 weeks paid
18 weeks -
unpaid
Antenatal
Compulsory
Leave
Maternity/Shared
Parental Leave
Parental Leave
5. New Family Leave Entitlements
Fathers
Unpaid time
off to attend
2 weeks - paid
Up to 50 weeks
SPL - shared
with mother
Up to 37 weeks
paid
18 weeks -
unpaid
Antenatal Paternity Leave
Shared Parental
Leave
Parental Leave
18. Effect of the fees
• In March 2014, the Ministry of Justice published
statistics for October to December 2013 showing a
79% drop in employment tribunal claims
• In February 2015, the Business Secretary, Vince
Cable MP, launched a review of the impact of
employment tribunal fees
• On 1 April 2015, Unison was granted permission to
take their judicial review to the Court of Appeal
20. Discrimination Update: Caste
• “There is no agreed sociological or legal definition of caste, but a number of
salient features can be identified. Castes are enclosed groups, historically related to
social function, membership of which is involuntary, hereditary (that is determined
by birth) and permanent…Unlike class, it is not generally possible for individuals
or their descendants to move into a different caste. Caste is governed by rules
relating to commensality (food and drink must only be shared by others of the same
caste) and is maintained by endogamy (marriage must be within the same caste). It
entails the idea of innate characteristics and hierarchically graded distinctions based
on notions of purity and pollution, with some groups considered to be ritually pure
and others ritually impure. A crucial feature of caste in South Asia is the concept
of “Untouchability”, whereby certain people are considered to be permanently and
irredeemably polluted and polluting, hence “untouchable”, with whom physical and
social contact is to be avoided. Despite the notional nature of caste, Untouchability
is conceptualised as an innate physical property separating the Untouchables from
the rest of society”
– Annapurna Waughruay, in “Capturing Caste in Law: Caste discrimination and
the Equality Act 2010” (2012) 14 Human Rights Law Review 359-379
21. Chandhok and another v Tirkey
Facts
• Ms Tirkey worked for Mr and Mrs Chandhok
between 2008 and 2012 as a domestic worker.
• Her caste is the Adivasi, which is known as a "servant
caste". Adivasis have been recognised as being at the
lowest point of almost every socio-economic
indicator.
22. Chandhok and another v Tirkey
• After bringing other claims in the tribunal, Ms Tirkey
added a complaint of caste discrimination
• She claimed that the reason why she was recruited
and treated in the manner alleged was that the
Chandhoks thought she was of a lower status to them,
which was infected with considerations of caste.
23. Chandhok and another v Tirkey
Decision
• The Employment Tribunal refused to strike out the
claim for caste discrimination.
• Mr and Mrs Chandhok appealed, arguing that caste
was not included as a protected characteristic in
section 9(1) of the Equality Act 2010
• The EAT dismissed the appeal and permitted the
caste discrimination claim to proceed to full hearing.
24. Caste Discrimination: future developments
• Consultation on proposed legislation making caste
discrimination unlawful was planned to take place in
the autumn of 2014 but has not yet begun
• This power was introduced on 25 June 2013 but has
not yet been exercised by the government.
• In February, the Government confirmed that it has no
"immediate" plans to introduce legislation making
caste discrimination a form of race discrimination
25. Discrimination Update: Disability
• Is obesity a disability?
• In December 2014, the European Court of Justice
ruled:
– It does not qualify automatically as a disability;
BUT
– Equally, it is not excluded
• Critical issue is the effect of any impairments rather
than their cause
26. Issues for employers:
• Be aware of these issues when managing sickness
absence or determining fitness for work
• Duty to consider reasonable adjustments to working
practices and/or workplaces?
• Obesity in oil and gas sector: regulations prohibiting
passengers with certain body size
• Duty to help employee lose weight?
27. Discrimination Update: Disability
• Is Type 2 Diabetes a disability?
• No. The EAT in Metroline Travel Ltd v Stoute held
that Type 2 diabetes per se does not amount to a
disability
28. Metroline Travel Ltd v Stoute
Facts:
• Mr Stoute was employed as a bus driver for approximately 21 years
before he was dismissed for gross misconduct.
• He suffered from Type 2 diabetes and brought a claim for disability
discrimination (among other things)
• The employee followed a diabetic diet designed to avoid sugary
foods such as fizzy drinks (but had no other treatment)
• At a preliminary hearing, it was held he was disabled
• At the full hearing his complaints were all dismissed.
29. Metroline Travel Ltd v Stoute
Decision
• Metroline appealed as it had a workforce with a number of people
who suffered from Type 2 diabetes
• They were worried it would be used by other employees to support
an argument that they were disabled
• The EAT held that “treatment” was not wide enough to encompass
an abstention from sugary drinks:
"...while a particular diet may be regarded as something which is
to be ignored when considering the adverse effects of a
disability, I do not consider that abstaining from sugary drinks is
sufficient to amount to a particular diet which therefore does not
amount to treatment or correction”
30. Discrimination Update: Religion or belief
• Is a “a profound belief in the proper and efficient use
of public money in the public sector” protected as a
philosophical belief?
• No, according to the Employment Tribunal in Harron
v Chief Constable of Dorset Police.
31. Harron v Chief Constable of Dorset Police
Facts
• Mr Harron was employed by Dorset Police. He
suffered from OCD and bipolar disorder.
• He became angry and frustrated at seeing money he
thought was being wasted (bureaucracy, admin,
projects, over paid staff)
32. Harron v Chief Constable of Dorset Police
Decision
• While the judge was satisfied that Mr Harron's belief
was genuinely held, it was not a belief as it was
entirely confined to the workplace.
• It failed to satisfy the “weighty and substantial aspect
of human life and behaviour” test.
35. Covert Recordings
• Can covert recordings made by an employee of
private discussions of the panel at her grievance and
disciplinary be admitted in evidence at a tribunal?
• Yes, said the EAT in Punjab National Bank
(International) Limited v Gosain
36. Punjab National Bank v Gosain
Facts
• Ms Gosain was employed by the bank from May 2011 until
her resignation in January 2013.
• Prior to her resignation, she attended both a grievance hearing
and a disciplinary hearing with the bank.
• She secretly recorded both the public discussions at the
hearings and the private conversations of the panels.
• Ms Gosain subsequently brought claims of sexual harassment,
sex discrimination and constructive unfair dismissal.
37. Punjab National Bank v Gosain
Decision
• The EAT held that the recordings were admissible as
evidence at the final hearing and it would be for the
tribunal hearing the case to assess the cogency of the
recordings and their impact on the issues
39. Whistleblowing
• Are disclosures made in the interest of 100 senior
managers "in the public interest” for the purposes of
whistleblowing legislation?
• Yes, held the EAT in Chesterton Global Ltd (t/a
Chestertons) and another v Nurmohamed
40. Chesterton Global Ltd (t/a Chestertons) and
another v Nurmohamed
Facts
• Mr Nurmohamed was employed as a senior manager
at the Mayfair branch of Chestertons, the estate agent
• He made disclosures to the area director and the HR
director about manipulation of the company's
accounts which had an adverse effect on his
commission income
• Mr Nurmohamed was dismissed
41. Chesterton Global Ltd (t/a Chestertons) and
another v Nurmohamed
Decision
• The employment tribunal found that he had been
automatically unfairly dismissed, and that
Chestertons had subjected him to detriments on
grounds that he had made protected disclosures
• Chestertons appealed on the grounds that 100 senior
managers were not a sufficient section of the public
• The EAT held that the public interest test was
satisfied
43. Collective Redundancy
• Collective consultation obligations require
consultation with appropriate representatives where
20 or more dismissals are proposed in a 90 day period
any one “establishment”
• What is an establishment?
44. Collective Redundancy
• In USDAW v Ethel Austin Ltd (in administration)
and another case (the Woolworths case) the EAT
held:
– It had to delete the words “at one establishment”
from the UK law in order to comply with the
European law
45. Collective Redundancy
• On 5 February 2015, Advocate General Wahl issued
his opinion which disagreed with the EAT's decision
• The full decision of the ECJ is expected imminently
• A sigh of relief for employers?
47. General Election 2015
• Key issues:
– Zero Hour Contracts
– National Minimum Age
– Equality and Discrimination
– Family rights
– Tribunal fees
– Agency Workers and Apprenticeships
– Trade Unions
48. Zero Hour Contracts
Conservative Labour Lib Dems SNP UKIP
Eradicate
exclusivity
clauses in zero
hour contracts
Workers given
regular
contract after
12 weeks
Create right to
request fixed
term contract
Supports
tough action to
end
exploitative
zero hours
contracts
Businesses
with 50 people
to give
workers
contract after
one year on
request
49. National Minimum Wage
Conservative Labour Lib Dems SNP UKIP
Increase to
£6.70 by
autumn 2015
and over £8 an
hour by the
end of 2020
Increase to
more than £8
an hour by
October 2019
Low Pay
Commission to
consider ways
of increasing
without
damaging
employment
opportunities
An increase in
the minimum
wage to £8.70
by 2020
Raise the tax-
free allowance
to £13,000 so
people on the
NMW do not
pay any
income tax
50. Gender Equality
Conservative Labour Lib Dems SNP UKIP
Require
companies
with more
than 250
employees to
publish the
difference
between the
average pay of
their male and
female
employees
Require large
companies to
publish their
gender pay
gap
Introduced
new rules on
gender pay
transparency
Push for 50:50
representation
on public and
private
boards, and
action to
secure equal
pay
51. Discrimination, Equality and Human Rights
Conservative Labour Lib Dems SNP UKIP
Transform
policy to halve
the disability
employment
gap
Race equality
strategy to
ensure that
institutions
are more
representative
One board
members to
be a BAME
person &
shortlist any
qualified
disabled
candidate
Support calls to
establish a Race
Committee
Allow
British
businesses to
employ
British
citizens first
British Bill of
Rights to
replace the
Human Rights
Act 1998
(HRA)
Preserve the
HRA
Keep the
HRA and
introduce
Freedoms
Act
Preserve the
HRA
Replace
HRA with
Bill of
Rights
52. Family Rights
Conservative Labour Lib Dems SNP UKIP
Free childcare
increased to 30
hours for
three and four
year olds of
working
parents
Free childcare
increased to 25
hours for
three and four
year olds of
working
parents
Free childcare
for 20 hours a
week for all
parents of
children aged
between two
and four
Double paid
paternity leave
from 2 to 4
weeks and
increasing
paternity pay
to more than
£260 a week
Expand
shared
parental leave
by additional
month of
paternity leave
to fathers
53. Tribunal Fees
Conservative Labour Lib Dems SNP UKIP
Abolishing the
tribunal fee
system
A review of
employment
tribunal fees
Abolishing
tribunal fees
54. Agency Workers and Apprenticeships
Conservative Labour Lib Dems SNP UKIP
3 million
apprenticeships
over the next
five years
Create
thousands of
apprenticeships
in public sector
Double
amount of
businesses
that hire
Support an
increase to an
increase to
30,000 Modern
Apprenticeships
UKIP will
repeal the
Agency
Workers
Directive
Illegal to use
agency workers
to undercut
wages and
banning
agencies from
exclusively
recruiting from
overseas
55. Trade Unions
Conservative Labour Lib Dems SNP UKIP
Tougher
threshold for
strike action in
the health,
transport, fire
and education
sectors
Allow
subscriptions to
be deducted
from salary
automatically
Encourage
wider trade
union
participation
Allow
employers to
use agency
workers to
cover striking
employees
Electronic
voting in trade
union ballots
through
Oppose Tory
plans to further
restrict the right
to strike and
support trade
unions
Could the rise be attributable to increased awareness of equality and/or increase in qualifying service requirement?
Strands of discrimination protection are as follows:
Direct
Indirect
Harassment
Victimisation
For disability only: “discrimination arising from disability” and failure to make reasonable adjustments.
NB – As the employer you are liable for acts of employees!
Quote 1- (Glasgow City Council v Zafar [1998] IRLR 36 (HL)).
Quote 2 - (Nagarajan v London Regional Transport and others [1999] IRLR 572 (HL)).
Quote 3 - (King v Great Britain-China Centre [1991] IRLR 513 (CA)).
How do you handle this in the context of the workplace? Can you easily get a hold on this? How do you know how to manage it if they people you’re liable for don’t even know they’re doing something unlawful?!
In Reynolds v CLFIS (UK) Ltd and others UKEAT/0484/13, the EAT held that, since the burden of proof was on the employer to prove that a decision to terminate a consultancy agreement was not tainted by discrimination and the employer was liable for the discriminatory acts of its employees, the tribunal should have considered the mental processes of all those employees who had significantly influenced the eventual decision-maker. The EAT interpreted Nagarajan to mean that, even if the decision-maker has not acted for a discriminatory reason, discrimination can still be made out where a prohibited ground has had a significant influence on the outcome
Ask the audience to think about this in the context of their management structures and workforce. You can realistically have a principal decision maker having no idea of the subconscious discriminatory beliefs of someone who is assisting them in (for example a redundancy or promotion) an internal process, but nonetheless the reason for the act is essentially tainted with second hand subconscious discrimination and therefore unlawful. This liability then passes to the employer. Almost three degrees of separation here so very very difficult to control and manage.
Re sole or principal reason (Owen & Briggs v James [1982] IRLR 502 (CA); Nagarajan (above)). The EHRC Code confirms that for direct discrimination to occur, the relevant protected characteristic needs to be a cause of the less favourable treatment "but does not need to be the only or even the main cause" (paragraph 3.11).
