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An Historic First in Employment Law

The compensation limit is to be reduced from £66,200 to £65,300 with effect 1st February 2010. Yes, a reduction!

A “weeks pay” for redundancy pay and basic award calculations is to remain at the rate of £380 which came in to force with effect 1st October 2009.

Pregnancy Risks

It is currently the case that where a worker is pregnant an employer is under an obligation to conduct a risk assessment. If they fail to do so then discrimination results. As such when does the obligation in fact arise?

A recent case has clarified certain pre-conditions that need to be met before an employer falls under a duty to conduct a risk assessment for a pregnant worker. These are as follows:

1. the employer is notified by the employee in writing that she is pregnant;
2. the job performed is of a nature which could involve a risk of harm or danger to the health and safety of the pregnant employee and her baby;
3. the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

The case also stated that where the obligation does arise there is nothing in the legislation which requires an actual meeting with the pregnant employee to perform that risk assessment. However any risks identified must be fully communicated with the employee and addressed.

Pregnant Workers Pay Entitlement

Following on from the case above what should happen to a pregnant employee’s pay if, after carrying out a risk assessment, you need to transfer the pregnant employee from her current job to another, less well paid, job to protect the employee and her unborn child?

A Finnish case was referred to the European Courts for guidance on this issue. Here an air stewardess was pregnant. The airline conducted a risk assessment and concluded that it in order to comply with health and safety laws which protect expectant mothers and their unborn babies it was necessary to move her to ground staff. The airline paid her the basic rate (with allowances payable to ground staff) but this resulted in the employee receiving 1/3 less salary. The employee argued that this was in breach of her statutory rights pursuant to the Pregnant Worker Directive.

The Advocate General has given her opinion (which is usually followed by the European Court) about the interpretation of the legislation (there are similar provisions here in the UK) and held that a pregnant workers entitlement in these circumstances was to an “adequate allowance” – this did not mean the same salary she was receiving pre-transfer but instead meant at least a salary equivalent to a male or female who performs an equivalent kind of work.

As such, according to the Advocate General, it is acceptable to pay the going rate for the job to which a pregnant employee has transferred to, even if it is lower but as long as it is equally applied to workers carrying out similar work.

IVF and Discrimination

A recent case has confirmed that a woman undergoing IVF treatment is to be regarded as pregnant for the period following implantation of the fertilised egg until the end of the “protected period”.

The “protected period” starts from when the female becomes pregnant and ends:

1. at the end of the ordinary maternity leave if not entitled to additional maternity leave or, if earlier, when she returns to work;
2. at the end of additional maternity leave is so entitled or, if earlier, upon her return to work;
3. if she is not entitled to ordinary maternity leave in respect of the pregnancy then at the end of the 2 week compulsory leave ie. 2 weeks after birth.

The case also confirmed that prior to implantation, less favourable treatment on the ground that a woman is receiving IVF treatment may constitute sex discrimination during the advanced stages of IVF – ie. between follicular puncture and immediate transfer of the in vitro fertilised ova into the uterus. The court did not accept that the period of protection should be any wider than that.

Get a Haircut

The Metropolitan Police told one of its male officers when his hair became shoulder length, that in their view, he was in breach of the dress code.

A claim for sex discrimination was pursued by the male officer, alleging that a female colleague in similar circumstances (with the similar length of hair) would not have been asked to cut her hair.

The court disagreed that this was discrimination as long as the dress code was equally balances between the sexes. It was held that the correct test as a whole was whether or not, “applying contemporary standards and conventions as well as the specific need of the profession in question”, the dress code as a whole required employees to display an equivalent level of smartness between the sexes. In this case the dress code was found to be overall equally balanced and applied equally to staff regardless of gender.

Harassment in the Workplace

Following the decision of Marjrowski v Guys and St Thomas’ NHS trust in 2006 it was widely feared that the litigation floodgates would open and employees would utilise the Protection From Harassment Act 1997 (“the Act”) to pursue litigation for acts of harassment in the workplace.

The Majrowski case held that an employer could be vicariously liable under the Act for acts of harassment by its employees. Although still good law, subsequent decisions have been quick to limit its application to cases where the conduct complained of under the Act, is sufficiently serious enough to establish criminal liability.

A recent case reaffirmed that position stating that it did not expect many workplace cases to be serious enough to establish such liability under the Act and that remedies are more fittingly given under discrimination legislation.

However in this particular case it was held that a trainee electrician who had been victimised and demoralised by her supervisor and became clinically depressed was able to pursue a claim under the Act as the conduct crossed the line into conduct which was oppressive and unreasonable and sufficient to establish criminal liability.

As such, whilst Marjrowski is limited in its application, each case will turn on its own individual facts and there is always a potential risk of liability under the Act.

The importance of having in place a bullying and harassment policy cannot be over emphasised!

The Battle of the Heavyweights...

In the Blue Corner – “Religious Belief” and in the Red Corner – “Sexual Orientation”
This is the battle of competing discrimination rights where a Christian registrar alleged she was being discriminated because of her religious belief by her employer when she was required to be a registrar for same sex civil partnerships.

She refused. Two gay colleagues said they felt victimised by her stance and complained of unlawful discrimination to the employer who instigated disciplinary action. The council was also required under its public duty to provide a non discriminatory service in this regard.

Quite a pickle of competing equality rights.

At the Court of Appeal it was held that the Christian registrar had not been discriminated against stating that the requirement of a modern day liberal democracy includes outlawing discrimination in the provision of goods, facilities and services on the grounds of sexual orientation and applying such an equality and diversity policy to its staff to satisfy its public duty is a proportionate means of achieving a legitimate aim.

The Court went one step further to state that the prohibition of discrimination on grounds of sexual orientation took precedence over any right which a person would otherwise have by virtue of their religious belief or faith to practice discrimination on grounds of sexual orientation.

Your Questions Answered

1. I have received notification that an ex-employee has issued a claim for unfair dismissal in the employment tribunal. He was fairly dismissed for gross misconduct and the claim is wholly without grounds. Can I get the claim struck out and can I get my costs paid by the other side?

You need to firstly submit your defence explaining fully the factual basis of the dismissal and the grounds why the employee has been dismissed. Once you have submitted this you can then write to the Employment Tribunal requesting a pre hearing review for the case to be struck out for lack of merit or that it is wholly vexatious. At the same time you should write to the Claimant putting them on notice that you do not believe that there is any merit in the claim and state your reasons why and giving them the opportunity to voluntarily withdraw their case.

You will need to put them on notice that you intend to claim your costs against them at any subsequent hearings where the tribunal uphold your defence and strike out the claim or where you are ultimately successful at a final hearing.

You must be aware that costs are generally not awarded in Employment tribunals but can be awarded where the claim is vexatious or without merit and has been brought unreasonably. If you can convince the tribunal that this is the case and you have placed the Claimant on notice that you intend to make a claim for costs then you may be awarded costs in those circumstances. Any cost award made however will take into account the Claimants ability to pay and so you may, in any event, only obtain a proportion of any costs incurred.

2. I have recently gone through a consultation process prior to making a number of redundancies. One employee has made a suggestion that I should bump a more junior employee so that she is made redundant instead. What are my legal obligations?

If the employee has raised it as a possibility to avoid their redundancy then you should consider it, but you do not necessarily need to accept the request. You should only consider this if the alternative position they have suggested is a suitable alternative employment for them. For instance an I.T. manager could legitimately be refused a request to bump a Finance manager as they lack the skills to undertake the role. If the individual can carry out the duties of the position suggested then you should look at a number of factors such as:

1. Whether there are any particular skill sets needed for the bumped position that the potential redundant employee does not have;
2. How different the two jobs are and how much training would be required;
3. The difference in salary level between the two positions;
4. Any other factors or business reasons why bumping should not occur;

You will need to consider the needs of the business and the particular job function in determining what constitutes other business reasons that are specific to your requirements. If you can objectively justify refusing the request to bump the junior employee and provided that is communicated to the redundant employee then the dismissal should be fair.

Copyright 2006 - 2009 Taylors Solicitors

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