The former Equal Opportunities Commission (EOC) brought judicial review proceedings against the Government in relation to some of the provisions of the Employment Equality (Sex Discrimination) Regulations 2005 which amended the Sex Discrimination Act 1975 to implement the Equal Treatment (Amendment) Directive. The judgment of the Court handed down on 12 March, 2007 requires the Government to make some amendments to provisions in the Sex Discrimination Act 1975 on pregnancy and maternity leave discrimination and harassment. The regulations that will make these changes to the Sex Discrimination Act have been laid before Parliament and will come into effect on 6 April, 2008:

• The changes that BERR is required to make to the Maternity and Parental Leave Regulations 1999 relating to terms and conditions during maternity leave will apply to employees whose expected week of child birth begins on or after 5 October, 2008. This will provide time for business to prepare for these changes.
• The most important change introduced by the new regulations is that an employer shall be liable where an act of harassment is committed by a third party, and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from acting in that way. The employer will be liable for third-party harassment only if it knows that the employee has been subjected to harassment by a third party (not necessarily the same one) on at least two previous occasions
• The new regulations will also have an impact on the insurance sector allowing discrimination in insurance between men and women in relation to premiums or benefits, under contracts entered into after 5 April, 2008, provided that the use of sex as a factor in the assessment of risk is based on relevant and accurate actuarial and statistical data. The Treasury has published PDF guidance on how the data must be compiled, published (whether in full or summary form) and regularly updated.

www.cbi.org.uk

More and more mothers are being forced to return to work to help make ends meet, a study has found.

Researchers found parents’ choice of caring for their own children is rapidly becoming a luxury available only to those who can afford it.

The number of stay-at-home parents has hit its lowest level in 15 years with just 7 per cent of all parents now staying at home to look after their children.

With household bills rising £148 a month since 2007, the real rate of inflation for families hitting 9 per cent, and the UK seeing disposable income at its lowest level in a decade, the rising cost of living is taking its toll on young families.

The study found that 38 per cent of parents with children under two find they have to go back to work for financial reasons.

Ann Robinson, Director of Consumer Policy at uSwitch.com which commissioned the report, said: “Economic factors are taking away the choice for many young families today.

“People who want to stay at home can’t afford to due to rising household bills, and even people who want to return to work can’t afford to either, due to the high cost of childcare. As a result, both parents and children are losing out.

“Any initiatives introduced by the Government that support parents wishing to return to work when they have children should be commended – but we also need to recognise that some parents would prefer to stay at home to look after their children, even if only during the early years. This is all about parents having a say in how they raise their families.”

Companies have launched a database which allows them to share details of employees accused of dishonesty at work.

The National Staff Dismissal Register lets firms log details of staff caught stealing, committing fraud or damaging company property.

Other companies can then use the database to check job applicants’ history.

Trade Unions and Civil Liberties groups condemned the move. GMB General Secretary Paul Kenny said: “There will be an enormous kick back against this and GMB as the major union for shop workers will lead the charge.”

But organisers Action Against Business Crime said the database complied with data protection laws and said 99% of people logged would have their details removed after three years.

Chief executive Mike Schuck said workers put on the database would also be allowed to check what information was held about them.

“Nobody will go on for stealing a £5 T-shirt. But if they have stolen many £25 T-shirts over a period of time, and they have shown a system and planning and conspiracy they will finish up on the database.”

The database will hold details of people not prosecuted or found guilty in court of the allegations made against them, he said. But he said the maximum time someone would be held on the register would be five years – except in exceptional circumstances.

He said employers signed up to the scheme include Harrods, Selfridges and Reed Employment but he hoped it would expand to include businesses in construction, leisure and tourism.

The first phase of the new immigration points system started at the end of February 2008. Under the system, to qualify to come to work, train or study in the UK, a person must ‘earn’ a certain number of points in various categories.

The first phase covers highly skilled individuals (known as ‘tier one’) already in the UK or applying from India. The second phase is due to start this month and covers tier one workers from other parts of the world plus investors, entrepreneurs and a category known as ‘post-study’ (inelegantly described on the Home Office web-site as “if you are studying now and have in the past in the United Kingdom, and also to boost the United Kingdom as a somewhere you want to come as an international student to keep the best international graduates”).

There is a ‘point-based calculator’ on the same Home Office website which can be used to calculate how many points a person has to see if they are eligible to work in the United Kingdom as a highly skilled worker. There is also a ‘timetable for PBS launch’ which shows May 2008 as the time for the start of the process for Tier 2 (skilled workers with a job offer), due to be fully effective in the autumn of 2008.

Importantly, at the same time as the Government introduced the points system it also introduced new rules to penalise employers of illegal immigrants and started a highly effective crackdown on such employers. Since 29th February 2008 an employer who employs someone subject to immigration control aged over 16 who is not entitled to undertake the work in question is liable to pay a civil penalty unless he can show that he had checked and copied specified original documents before the worker concerned started working for him. The penalty is calculated on a sliding scale (it can be up to £10,000 per illegal worker). It is separate from the unlimited fine and/ or prison sentence of up to two years which can be imposed on an employer who is prosecuted for knowingly employing an illegal worker.

The new system ‘has teeth’. There are reports that during March and April 2008 fines and penalties totalling around £500,000 have already been levied on 137 employers caught employing illegal immigrants. A BBC report of 5th May says that this is 10 times the number caught in 2007, and more than double the number prosecuted in the previous decade. Clearly the Government is taking the issue of illegal immigration extremely seriously.

www.emplaw.co.uk, May 2008

A ‘straight’ worker was subjected to taunts by work colleagues on account of characteristics they associated with a gay person. They did not actually believe him to be gay but the facts that he had lived in Brighton and had been at a boarding school were enough to lead to the teasing.

The worker concerned, a Mr Stephen English, did not find the teasing funny. He brought a complaint against his employer, the Sanderson Blinds Company, on the basis that they had failed to protect him. In September 2007 an employment tribunal in Brighton ruled that the Employment Equality (Sexual Orientation) Regulations 2003 did not protect him in this situation. It dismissed the harassment claim he had brought under those regulations. He appealed to the EAT.

In February 2008 he lost again. The EAT agreed with the original tribunal that the regulations protect employees who actually are homosexual (or heterosexual) from being harassed for being homosexual (or heterosexual) but that in effect there is a loophole which means that a heterosexual employee cannot claim harassment for banter suggesting that he or she might be gay. However the EAT was not confident that its decision, which interprets the UK regulations, is correct under EC law. It has encouraged Mr English to appeal to the Court of Appeal so there may still be more to come before this particular saga is played out.

www.emplaw.co.uk, May 2008

UK entrepreneurs are increasingly relying on older workers to plug skills shortages in their businesses, according to figures released last week by entrepreneur think tank the Tenon Forum.

Nearly half (45%) of UK ownermanagers are concerned about skills shortages and many claim that younger recruits are often just not up to the job; over a third (34%) of SME’s report a lack of work readiness amongst graduates while 31% cite the poor literacy and numeracy of school leavers as a key issue facing their business. They are now looking to the previously untapped potential of older workers to plug the gap, with two thirds (66%) of SME leaders agreeing that the employment of workers aged 50 plus is a good solution to skills shortages.

More than a fifth (22%) of entrepreneurial businesses actually favour the hiring of older workers over college leavers as a solution to staffing problems.

The Tenon Forum research reveals that 3 in 10 SME’s have a strong representation of employees aged over 50, with many utilising the experience of older workers as coaches and mentors for younger employees (20%) or in the capacity of consultants following retirement (12%).

Andy Raynor, CEO of Tenon, said: “Changes to pensions legislation, combined with the recent age discrimination legislation, are encouraging people to put their retirement on hold and continue working in some capacity, either as full-time or part-time employees, or as consultants.

“Older members of staff can bring huge benefits to an organisation”, he said, “and more and more entrepreneurial businesses can be expected to take a flexible approach to recruitment to utilise this valuable skills base.”

Tenon, May 12, 2008

It is well known that an employee can bring a claim against her/his employer that she/he has been sexually harassed at work by a fellow employee.

As from 6th April, 2008, new regulations mean that an employee can bring such a claim even if the harassment was by a customer or other member of the public. Under the new regulations (the Sex Discrimination Act 1975 (Amendment) Regulations 2008 which make appropriate changes to the Sex Discrimination Act 1975) an employer is responsible for protecting staff from sexual harassment by third parties subject to two important provisos. The first is that the employer had failed to “take such steps as would have been reasonably practicable to prevent the third party from doing so” and the second is that it must be at least the third occasion on which the woman/man has been subject to harassment by a third party in the course of her/his employment.

The new regulations follow a High Court ruling in March 2007 to the effect that Britain was not properly implementing the European Equal Treatment Directive 76/207/ EC (as amended). The High Court ruled that association with sex, not causation by sex, should define harassment. The new regulations achieve the desired result, leading to a Daily Mail headline “Don’t call the barmaid ‘love’, by order of Harriet Harman”.

The position of employers in the event of racial discrimination by 3rd parties against their employees is less clear. The Courts have not been wholly consistent. The 2007 ruling noted above, although not concerned with racial discrimination, is likely to be relevant if a case is argued in future. However the new regulations do not directly affect the position in race discrimination cases.

www.emplaw.co.uk, May 2008

A review considering how to extend flexible working to parents of children who are older than six will recommend that the age limit more than double, according to reports in the Financial Times.

Last November, the Prime Minister announced that the Government had decided to extend the right to request flexible working – currently available to parents of children under the age of six and disabled children – to parents of older children.

Imelda Walsh, HR director of J Sainsbury plc, has been leading an independent review to consider where the age cut-off for older children should be set. Gordon Brown is due to announce the results of the review this week when he sets out his plans for the next parliamentary term.

But an article in the FT this week said that a ‘senior Government insider’ had revealed that the review would recommend that the age limit be more than doubled, which would give new rights to at least 2.6 million parents.

The insider said that ministers would support the review while pledging to consult fully on its recommendations.

Responding to the news, the Chartered Institute of Personnel and Development (CIPD) called on the Government to be bolder and extend the right to request to all workers.

Mike Emmott, a CIPD Employee Relations Advisor, said: “We wholly support moves to extend the ‘right to request’ to more parents. But the Government should be bolder still and extend the right to all workers. The danger with ever-larger groups of people entitled to request flexible working, and a smaller number not entitled to do so, is that divisions will grow up in the workplace.

“Many enlightened employers already allow employees to work flexibly regardless of their family status. An extension of the right to request to all workers would level the playing field, without compelling employers to offer flexible working where this is incompatible with business needs.

“Our research shows that it would also deliver improved employee engagement, and therefore contribute to boosting productivity and performance in the workplace.”

Financial Times, May 10

Fire minister Parmjit Dhanda promised last week that the Government would provide a £10,000 grant to enable a group supporting disabled firefighters to establish itself across the UK.

Mr Dhanda was speaking during Deaf Awareness Week as fire and rescue services urged people with hearing problems to carry out home fire risk checks.

The National Disabled Fire Association (NDFA) was started by Devon & Somerset firefighter Duncan White after he suffered permanent hearing loss, in order to provide a support network for disabled firefighters.

As well as promoting good relationships between fire and rescue services and employees affected by disability, the NDFA also aims to help disabled people in the community to engage positively with the service.

The grant from the Department for Communities and Local Government (DCLG) should enable the group to get a national membership subscription scheme up and running.

To date the NDFA has relied on the goodwill of the Devon and Somerset Fire and Rescue Service, which has provided office space and staff time.

The minister said: “The NDFA has the potential to play a key role in supporting firefighters affected by disability, and providing advice to fire and rescue services, but they need to reach a wider audience.”

DCLG press release, May 2008

A retired schoolteacher who claimed he was a victim of disability discrimination because he is bald has lost his claim.

James Campbell, 61, formerly an art teacher at Denny High School in Stirlingshire, took Falkirk Council to an employment tribunal over the issue.

He told the Glasgow tribunal he had suffered from harassment at the hands of pupils because of his baldness. In his ruling, the tribunal judge said baldness was “not an impairment”.

Mr Campbell, from Stirlingshire, who is also claiming constructive and unfair dismissal against the council, said pupils at the school perceived his baldness as a weakness.

He claimed his baldness had a “substantial and long term adverse effect” on his ability to do his job. Speaking during the hearing, Mr Campbell said: “How can I stand in front of a class with confidence to get on with my job when I am getting teased and bullied about baldness, when I think they are laughing at me all the time.’’ The former teacher, who retired in 2007, said he avoided corridors in the school where he would meet pupils to avoid them shouting ‘’baldy’’. He added: ‘’I left school later at night after the bell went to avoid the kids.”

Mr Campbell said that if the pupils were prepared to call him baldy to his face, they might also assault him. Falkirk Council argued that baldness was not a physical or mental impairment and was therefore not covered by the Disability Discrimination Act (DDA).

Tribunal judge Robert Gall said that because Mr Campbell’s baldness was used by others to taunt him, it did not mean it was a disability. He said: “It seems to me it would be to take the definition of impairment too far. “If baldness was to be regarded as an impairment then perhaps a physical feature such as a big nose, big ears or being smaller than average height might of themselves be regarded as an impairment under the DDA. “That, to me, cannot be right looking to the DDA, the guidance and relevant case law.’’

Mr Campbell’s constructive and unfair dismissal claim against the council will go ahead at a later date.

www.bbc.co.uk/news, 16th April, 2008