Employment law continues to be subject to a great deal of legislative scrutiny and change; new guidance from the European Court of Justice; and interpretation by the UK Employment Tribunals. The last few months have once again seen many interesting changes and developments that all employers need to be aware of in managing their workforces effectively and limiting the potential for dispute. We set out a brief summary of some of the main changes and developments. Please contact us if you would like to discuss any of these or any other employment law matters in more detail.
Legislation
Corporate Manslaughter
All companies should be aware that the majority of the Corporate Manslaughter and Corporate Homicide Act 2007 came into force from 6 April 2008. This will make it easier to prosecute organisations for causing death by negligence. Broadly, under the Act, an organisation will be guilty of an offence if the way in which its activities are managed or organised by its senior management causes a person’s death. It is no longer be necessary to prove that a single senior official was to blame - senior management playing a role will be sufficient. Employers face large fines for corporate manslaughter if it is proved that they failed to take proper safety precautions. All companies should consider undertaking or renewing risk assessments to limit the potential for death/serious injury to their workforce or other members of the public.
Sexual Discrimination
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 came into effect from 6 April 2008. These include the following changes:
- An amended definition of harassment which removes the need for contact to be “on the grounds of” the claimant’s sex and requires only that it be “related to” the sex of the claimant or any other person. This wider definition will make it easier to bring harassment cases. Employers should ensure that their anti-harassment policies are up-to-date and that managers are fully trained to help prevent disputes and effectively manage potentially problematic situations.
- A new liability for employers who fail to protect employees from harassment by third parties, where the employer knows that the employee has been harassed on at least two previous occasions by a third party but has failed to take such steps as would have been reasonably practicable to prevent it. Consequently, employers should ensure that they have in place proper training for managers and procedures for dealing with harassment complaints and that where appropriate third parties are warned that such conduct is unacceptable, for example by putting up public notices.
- An extension of maternity rights during additional maternity leave for women whose expected week of childbirth falls on or after 5 October 2008. Benefits such as company cars, laptops, gym membership, medical insurance and contractual holiday entitlement cannot be withdrawn after the end of ordinary maternity leave but must be maintained during additional maternity leave. Any period spent on additional maternity leave must also be taken into account when calculating length of service for bonus entitlements. Employers should consider updating their maternity policies and staff handbooks to reflect these changes.
Changes to
The first phase of changes under the
29 February 2008 also signalled the introduction of a new scheme of penalties for employers who employ workers who are not legally entitled to work in the
Employment Tribunal Cases
Equal Treatment of Part –Time Workers
Matthews and others v
Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker, engaged in the same or broadly similar work, unless the less favourable treatment is justified.
In this case, the claimants were some 12,000 part-time (“retained”) firefighters, who alleged less favourable treatment in comparison with full-time firefighters, including exclusion from the pension scheme; differences in calculation of sick pay; and receiving a lower hourly rate for additional duties. The Tribunal found that the retained firefighters were employed under a different type of contract to the full-time firefighters, since there were several differences between the two types of contract, including in relation to working patterns, which led to a different, more complex pay arrangement. Both the Employment Appeal Tribunal and the Court of Appeal rejected the firefighters’ appeals.
However, the House of Lords overturned the Tribunal’s decision and remitted the case back for a re-hearing. It held that the Tribunal wrongly concentrated on the differences between the jobs, rather than the similarities. If a large component of the work is the same, the Tribunal should consider whether any of the differences are important enough to prevent the work being regarded as the same or broadly similar. On re-hearing the case with this guidance, the Tribunal found that the firefighters carried out the same or broadly similar work to the full-time firefighters, were treated less favourably in relation to pension and sick pay provision and the differences were not justified.
Following this decision, it will be easier for a part-time employee to establish that a full-time comparator is doing “the same or broadly similar” work for the purpose of a claim under the Part-Time Workers Regulations.
Offshore Workers Entitled to Paid Annual Leave
Russell & Ors v Transocean International Resources Limited
This recent decision will impact on all employers of offshore workers. The Employment Tribunal found that offshore workers are entitled to take paid holiday in addition to time spent working offshore under Regulation 13 of the Working Time Regulations 1998. The employers’ argument that the statutory entitlement to annual leave was already being met by the provision of onshore “field breaks” was rejected. Annual leave had to be taken out of time when workers were under a contractual obligation to work which was not the case during field breaks.
Notably, the Tribunal also rejected an argument that all time spent offshore (including time when workers are not on shift) is “working time” for the purposes of the working time regulations. Had this argument been successful, radical changes to working patterns would have been required for the offshore industry to comply with the average weekly working limit under regulation 4 of the Working Time Regulations.
EU Cases
Race Discrimination
Centrum Voor Gelijkheid van Kansen en Voor Racismebestrijding v N V Firma Feryn C-54/07
In this European Court of Justice case, the Advocate General delivered his opinion that a public statement made by an employer to the Belgian media to the effect that they would not employ Moroccans was direct discrimination contrary to the EU Race Discrimination Directive (2000/43). The
Sex Discrimination
Mayr v Bäckerei Und Konditorei Gerhard Flöckner
The European Court of Justice has held that women undergoing in vitro fertilisation treatment (IVF) who have had their ova fertilised but not yet implanted are not “pregnant” and thus are not protected from dismissal by the EC Pregnant Workers’ Directive. However, the dismissal of a woman, if related to her IVF treatment, will amount to discrimination on the ground of sex contrary to the EC Equal Treatment Directive, since only women receive IVF.
Disability Discrimination
Coleman v Attridge Law & Law
The claimant in this case had a disabled child and sought flexible working as a carer. This was not granted and she left her job. She claimed that she had suffered indirect discrimination under the Disability Discrimination Act. The Employment Tribunal sought the opinion of the European Court of Justice on whether indirect discrimination is covered by the original European directive. The Advocate General of the ECJ has given his opinion that the directive’s provisions on disability cover “associative discrimination”, that is discrimination against a non-disabled person on grounds of their association with a disabled person. If the ECJ follows this opinion, the outcome of the case could have major implications for the scope of disability discrimination law in the