Archive for the ‘Equal Opportunities’ Category

Following the dismissal of former Chief Executive, John Watkinson, an employment tribunal ruled that he had been sacked because he planned to act as a ‘whistleblower’. This was after he had voiced concerns about the legality of plans to move some cancer services out of Cornwall to Devon.

The trust accepted that he had been unfairly dismissed but appealed the ‘whistleblower’ element of the judgment.

The Employment Appeals Tribunal dismissed their appeal giving the following reasons for their decision:

•    The disclosure made by Mr Watkinson of advice which indicated that the Trust would be breaking the law if it did not undertake a public consultation on proposed changes to services affecting certain cancer patients was a ‘protected disclosure’ for the purposes of the Employment Rights Act 1996;

•    There was clear evidence from which the Tribunal could infer that the South West Strategic Health Authority, who was against holding a public consultation, applied pressure on the Trust, whom it supervised, to dismiss Mr Watkinson for making the disclosure;

•    The Tribunal had reached decisions which were open to them and had given full and adequate reasons for their decisions.

Case reference: Royal Cornwall Hospitals NHS Trust v Mr John Watkinson

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The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011 and come into force on 1 September 2011, have the following effects.

The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011, come into force on 1 September 2011.

The 2010 Regulations give temporary agency workers certain rights including rights in relation to basic working and employment conditions.

The 2011 Regulations correct a number of drafting errors contained in the 2010 Regulations by:

• changing the definition of an ‘agency worker’. The 2010 Regulations only covered workers who have a contract of employment with an agency or another type of contract to perform work and services personally for the agency. The 2011 Regulations extend the definition of agency worker so as to include workers who have a contract with the agency to perform work or services personally. The change, therefore, means that the worker will not need to be working for the agency itself;

• changing the circumstances in which an agency worker will not be entitled to be paid the same as other staff recruited directly by a hirer. As a general rule, when the 2010 Regulations come into force agency workers will be entitled to be paid the same as other workers recruited directly by a hirer. There are certain exceptions to this general rule, which will apply to agency workers who have a permanent contract of employment with their agency and the 2011 Regulations contain a minor change to this.

• changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their requirement to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly. The 2010 Regulations created a defence, which will be available to agencies in certain circumstances, and the 2011 Regulations has changed the circumstances in which the defence will be available. The change means than an agency will be able to avoid liability for breach of the Regulations by a hirer if it can show that it has taken reasonable steps to obtain information about the hirer’s terms and conditions.

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The Court of Appeal has held that in a claim for equal pay an employee is entitled to receive equal terms.

In this case claims were brought, for equal pay, by three female healthcare assistants and two receptionists. Their basic hourly rates of pay were higher than their male comparators. However, the rates of pay they were entitled to receive for working weekends, nights and during unsocial hours were lower than their male comparators. Overall four of the female employees were paid more then their male comparators.

The Court of Appeal said that once it had been established that there were terms in the women’s and the men’s contracts that were susceptible to comparison and that each of the terms were capable of being compared, then the earlier Employment Tribunal should have compared those terms. The Court of Appeal stressed that equal pay is focused on each distinctive term relating to remuneration and said that the Employment Tribunal was wrong to take a global view of the whole of a contract and the totality of pay and benefits.

The claims have been remitted to the Employment Tribunal whose job it will now be to decide the appropriateness of the comparators and whether the employer has a defence to the claims on the basis of there being a genuine material reason for the difference in pay in relation to the specific terms.

Case reference: St Helens & Knowsley Hospitals NHS Trust v Brownbill & Others


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Employers are expected to take reasonable steps to prevent harassment in the workplace. If they fail to take such steps they may be held to be vicariously liable for the actions of their employees and may be ordered to pay compensation.

The EAT has held that an employer who seeks to rely on the defence that it took reasonable steps to prevent the sexual harassment of one of its employees by another employee will only succeed if it can demonstrate that it took reasonable steps to prevent such conduct prior to the incident complained of. Simply taking steps after the event to prevent its recurrence is not sufficient.

This case concerned an employee, Miss Fox, who was subjected to sexual harassment by a colleague, Mr Ellis. Following a complaint to her employer, Mr Ellis was called to a disciplinary hearing and was subsequently suspended while investigations took place. After investigating the matter the employer concluded that there was insufficient evidence to discipline or dismiss Mr Ellis for sexual harassment.

An earlier Employment Tribunal had concluded that Mr Ellis had sexually harassed Miss Fox. However, it held that the employer had a defence to her claim for sexual harassment on the basis that as soon as Mr Ellis’ misconduct was reported it took all reasonable practical steps to prevent such behaviour recurring. The step taken was the suspension of Mr Ellis. The EAT, however, said that such a defence can only be made out if reasonable steps were taken before the act complained of.

Case reference: Miss C Fox v Ocean City Recruitment Ltd

The EAT, when giving judgment in this case, rather unhelpfully did not provide any guidance as to what steps the employer should have taken to prevent sexual harassment taking place.  It is, however, likely that an employer who can demonstrate that it has clear written policies relating to sexual discrimination and harassment, who provides its staff with training in these areas and who can demonstrate a culture of complying with such policies will be seen to have taken reasonable steps to prevent sexual harassment in their workplace.

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This case concerned two women who brought claims for equal pay. They had been, and continued to be, paid significantly less than a male employee who carried out similar work to them following TUPE transfers.

The employer successfully argued that that the difference in pay was caused by TUPE and had nothing to do with the sex of the employees. The employer had adopted a standard approach when it awarded pay increases and bonuses to its staff. It also had a practice of not freezing the salaries of its employees.

The EAT held that that the requirement under TUPE to preserve the contractual rights of a particular employee can be a ‘genuine, material, and gender-neutral factor’ to explain a difference in pay. The fact that this may, as it did in this case, result in a particular employee being paid more than other employees was irrelevant.

The EAT further held that the employer was under no duty to ‘narrow the pay gap’ after the transfer, for example by freezing the salary of transferred employees until others had caught up and equalised. The mere ‘effluxion of time’ (or in more common language, the ‘passage of time’) did not change the explanation for the difference in pay.

Case reference: Skills Development Scotland Co Ltd v Miss M Buchanan and Ms P Holland.

The EAT’s decision was based upon the particular facts of this case. An equal pay claim needs a finding of sex discrimination to succeed and there was no such finding in this case because as long as a decision to award everyone a pay rise (and thus perpetuate a pay gap) is not tainted by sex, an employer will be able to establish a defence to an equal pay claim. Had there been a finding of indirect discrimination then the employer would have had to show that there was an objective justification for the difference in pay.

This decision will be a relief for employers who would otherwise be caught between a rock and hard place trying to balance the demands of the competing legislation.

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A claim of indirect religious discrimination failed when an employer’s refusal to allow a Moslem employee leave from the work site for Friday midday prayers was held to be objectively justifiable. It is important to take the circumstances into account because this employer had made efforts to accommodate the religious belief. In this case, the employee had access to a prayer room on site and had been offered the chance to work shifts avoiding Fridays. The security firm (employer) concerned was committed by contract to provide a certain number of guards on the site at any time.  The case is Cherfi v G4S Security Services.

UK employment law distinguishes between direct and indirect discrimination and indirect discrimination is less clear cut than direct discrimination. Here claimant employees have to show that some provision, criterion or practice has been applied to them which in practice has the effect of putting people who share their protected characteristic (here being Moslem) at a disadvantage compared with others.

The EAT upheld the Tribunal’s judgment, finding that the Tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee and was right to conclude there was no indirect discrimination.

The EAT said that it would have “taken as correct” the approach suggested in Woodcock v North Cumbria Primary Care Trust [2011] (another EAT case), that as long as a policy is proportionate, costs alone might justify that policy.

However, employers should consider all the factors in context before deciding to discriminate as the outcome could be expensive!

‘Religious belief’ includes for example Christianity, Islam, Judaism, Rastafarianism, Sikhism, Zoroastrianism and denominations or sects such as Methodism within Christianity and Sunni within Islam. It also covers philosophical beliefs such as humanism and atheism for example. Other philosophical beliefs may be protected if they meet certain characteristics, for example a belief in the importance of climate change. However a belief in white racial supremacy would not be protected because it is not compatible with human dignity and does not respect the rights of others. Such a belief would not meet the criteria laid down by the courts.

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BIS, The Department for Business, Innovation and Skills has published guidance on the Agency Workers Regulations 2010 which will come into force on 1st October 2011.
As expected, the Regulations provide that agency workers who have been engaged for 12 consecutive weeks with an organisation, will have the same rights to pay, benefits, rest periods and holiday entitlements as permanent workers within that organisation even though they are hired on a temporary basis.
Organisations using agency workers will therefore need to budget for the increased costs and may decide that it is easier in some cases to employ workers direct.

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