employment update & training day alison bell 29 january 2008

Employment Update & Training Day

Alison Bell

29 January 2008

Introduction

• Update on Recent Legislation• Forthcoming Legislation• Age Discrimination• Managing Diversity and dealing with Grievances• Case Studies & Small Group Work• Questions & Answers

Recent Legislation

Work and Families Act 2006

• Maternity and adoption leave• Maternity pay• Adoption pay• Flexible working • Additional paternity leave and pay

Maternity and adoption leave

• Additional maternity leave: removal of qualifying period• Extension of notice of return• ‘Keeping in touch’ days• Reasonable contact • Removal of small employer exception

Maternity pay

• 39 weeks’ maternity pay• Administration of statutory maternity pay• Impact of ‘keep in touch’ days• Age discrimination issues

Adoption pay

• 39 weeks’ adoption pay• ‘Keeping in touch’ days• Administration of statutory adoption pay

Flexible working

• Extension of the right to request to employees with caring responsibilities for adultso eligibility

– 26 weeks qualifying services; and be or expect to be, caring for a person aged 18 or over who:– is married to, or is the partner or civil partner of the

employee or– is a relative of the employee or– lives at the same address as the employee

• Deadline for making an application • Further amendments – children over 6?

Additional paternity leave and pay

• Not yet in force • 26 weeks leave (in addition to two weeks)• Eligibility

o employed fathers and partnerso responsible for upbringing of childo minimum period of service?o mother must have returned to work?

• Commencement of leave – not earlier than 20 weeks from date of birth

• One block – eight weeks notice • Reasonable contact and ‘keeping in touch’ days • Terms and conditions during leave

Working Time Regulations (1)

• A full-time worker is entitled to 4.8 weeks’ (24 days) annual leave in each leave year

• From 1 April 2009 this will increase by a further 0.8 weeks to 5.6 weeks (28 days)

• BUT workers cannot be entitled to more than 28 days’ statutory leave as a result of the increases

Working Time Regulations (2)

The increase in the statutory holiday entitlement:• May not be replaced by a payment in lieu, save on termination or

during the initial transitional phase prior to 1 April 2009;• May be carried forward into the next holiday year, if a relevant

agreement provides for this.

Other Changes • Establishment of Equality and Human Rights Commission

• Racial and Religious Hatred Act 2006 – an act of religious hatred in the workplace could amount to a new criminal offence of stirring up racial hatred punishable by fine or imprisonment

• National Minimum Wage Increase – NMW has increased to £5.52 for workers aged 22 and over; £4.60 for workers aged 18-21 and to £3.40 for workers aged 16-17

• ICO Guidance on Personal Data published

Forthcoming Legislation

Forthcoming legislation (1)

• The Tribunals, Courts and Enforcement Act 2007

• Sex Discrimination Act 1975 – amendments following the EOC challenge in the spring –“at the earliest opportunity”

• Employment Bill

• Information and Consultation of Employees – will affect undertakings of more than 50 employees – April 2008

Forthcoming legislation (2)

• Corporate manslaughter – new offence of corporate manslaughter along with the rest of the Corporate Manslaughter and Homicide Act 2007 – 6 April 2008

• Single Equality Act

• Holidays increase to 5.6 weeks – April 2009

• Increase in paid maternity leave and introduction of additional paternity leave – 2010

A year of living with the Age Discrimination Legislation

Alison Bell

29 January 2008

Newsworthy Issues

• Ming Campbell “too old to fight an election”?• Royal family – no 64+ applicants• Freshfields 4.5 million pension case

Overview

• Damp squib?• Few reported cases • Ageist behaviour continues (EFA survey)• Stereotypical assumptions still trumping demographic trends?• More rigid application of NRA

Statistics

• 2000 ET cases in 1st year• 200 new ET claims pm• 6 x religious/SO discrimination• Most from older workers• London and East of England have highest rates of claims

Cases

• Palacios de la Villa v Cortefiel Servicios SA [2007] All ER (D) 207 (Oct)

• Johns v Solent SD• Lloyd-Briden v Worthing College [2007] All ER (D) 261 (Jun)• Bloxham v Freshfields Bruckhaus Deringer 220506/2006 (ET)

The problem areas

• Recruitment• Retirement & Termination - other discrimination, especially

disability• Benefits• Youth claims - overlooked?

Typical Queries

• Ageist comments• Age-related benefits (PHI cost)• Interlinked with DDA risk• Redundancy selection criteria (salary)• CRP differences (not mirroring SRP age-steps)• Promotion issue –more recent interview experience

Retirement Issues

• Lower retirement age• Claim because no reason given • Where retirement date falls short of 65th birthday (preceding

day!)• Retired employee reapplies for own job!

Managing Diversity and Dealing With Grievances

• Introduction • The consequences of not managing diversity • Summary of forms of discrimination • Disability Discrimination: The law, right or wrong, practicalities • Sex Discrimination: The law, right or wrong, practicalities • Race Discrimination: The law, right or wrong, practicalities • Dealing with grievances • Key points • Diversity training to employees

Content

• What does discrimination mean to you?

• What does diversity mean to you?

• Who is responsible?

Introduction

• In 2006 UK employers spent £210m a year on Employment Tribunal claims

• In 2007 it is estimated that UK employers will spend £360m on Employment Tribunal claims (70% increase)

• Around 30,000 Employment Tribunal claims are lodged each year

• Both individuals and employers can be held liable in cases of discrimination

The consequences of not managing diversity

• Disability• Sex – men and women (including pregnancy, maternity leave and

marital status)• Race – nationality, colour, ethnic or racial or national group• Age • Sexual orientation• Religion or belief• Gender

Summary of forms of discrimination

• What is a disability?

• Meaning of discrimination:o “a person discriminates against a disabled person if-

– for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, without justification; or

– he fails to comply with a duty to make reasonable adjustments….”

the law

Disability discrimination (1)

• Meaning of victimisation:o ….a person (“A”) discriminates against another person (“B”) if-

– he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s because B has:– brought proceedings against A or any other person

under this Act; or– given evidence or information in connection with such

proceedings brought by any person against A or any other person under the Act; or

the law


– otherwise done anything under this Act in relation to A or any other person; or

– alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

– A believes or suspects that B has done or intends to do any of those things.

the law cont’d


• Meaning of harassment:o ….a person subjects a disabled person to harassment where, for

a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of-– Violating the disabled person’s dignity, or– Creating an intimidating, hostile, degrading,

humiliating or offensive environment for him.o ….only if, having regard to all the circumstances, including in

particular the perception of the disabled person, it should reasonably be considered as having that effect”

the law cont’d


• A new chair......

• A gift......

• Stress/depression – return to work......

• Requests from employees......

right or wrong?


• Identifying a person with a disability

• Ask a disabled person on regular occasions what, if any, support is required

o learning difficultieso visually impairedo mobilityo hearing impaired

• Keep a paper trail

practicalities


• Meaning of discrimination:o women, men, gender reassignment, pregnancy, maternity leave,

married persons, civil partnerso “….a person discriminates against a woman if-

– on the ground of her sex he treats her less favourably than he treats or would treat a man (direct discrimination); or

– he applies to her or all persons a requirement or condition which indirectly results in a detriment to women, without justification irrespective of the sex of the person”.

the law

Sex discrimination (1)

• Meaning of victimisation:o a person (“A”) discriminates against another person (“B”) if he

treats the person victimised less favourably….because A has-– brought proceedings against A or any other person under

this Act or the Equal Pay Act 1970 (or Sections 62 to 65 of the Pensions Act 1995); or

– given evidence or information in connection with proceedings; or

the law cont’d


– otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 (or Sections 62 to 65 of the Pensions Act 1995) in relation to B or any other person; or

– alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention or this Act, the Equal Pay Act 1970 (or under Sections 62 to 65 of the Pensions Act 1995); or

– by reason that A knows that B intends to do any of those things, or suspects that B has done, or intends to do, any of them

the law cont’d


• Meaning of harassment, including sexual harassment:o “a person subjects a woman to harassment if-

– on the grounds of her sex, he engages in unwanted conduct that has the purpose or effect of-– violating her dignity; or– creating an intimidating, hostile, degrading,

humiliating or offensive environment for her– he engages in any form of unwanted verbal, non-verbal,

or physical conduct or a sexual nature that has the purpose or effect of– violating her dignity; or

the law cont’d


– creating an intimidating, hostile, degrading, humiliating or offensive environment for her

– on the grounds of her rejection or of submission to unwanted conduct, he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.

o only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect”.


• Tactile behaviour……

• Banter……

• Jokes……

• Postcards/calendars……

right or wrong?


• Pregnant employees – assess any health and safety risk and take necessary steps

• Never turn a blind eye and put up with unacceptable behaviour

• Make sure your language/behaviour is appropriate to set an example


practicalities


• Meaning of discrimination:

o a person discriminates against another if-– on racial grounds he treats that other less favourably

than he treats or would treat other persons (direct discrimination); or

– he applies to that other or all persons a requirement or condition which indirectly results in a detriment to a racial group, without justification irrespective of colour, race, nationality or ethnic or national origins (indirect discrimination)

the law

Race discrimination (1)

• Meaning of victimisation:o a person (“A”) discriminates against another person (“B”)….if he

treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-– brought proceedings against A or any other person under

this Act; or– given evidence or information in connection with

proceedings brought by any person against A or other person under this Act; or

the law cont’d


– otherwise done anything under or by reference to this Act in relation to A or any other person; or

– alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act; or

– by reason that A knows that B intends to do any of those things, or suspects that B has done, or intends to do any of them

the law cont’d


• Meaning of harassment:o “a person subjects another to harassment….where, on the

grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of-– violating that other person’s dignity; or– creating an intimidating, hostile, degrading,

humiliating or offensive environment for himo only if, having regard to all the circumstances, including in

particular the perception of that other person, it should reasonably be considered as having that effect”

the law cont’d


• Banter……

• Social events……

right or wrong?


• Always keep a lookout for sectarian issues

• Think carefully about social events

• Never turn a blind eye and put up with unacceptable behaviour

• Make sure your language/behaviour is appropriate to set an example


practicalities


• Step 1:o the employee must set out the grievance in writing and send the

statement or a copy of it to the employer• Step 2:

o meeting held once employer has had reasonable opportunity to consider grievance

o employee informed of decision and given right to appeal• Step 3:

o appeal

standard grievance procedure

Dealing with grievances (1)

• Timetable o each step must be taken without unreasonable delay

• Meetings o timing and location must be reasonable o conducted in a manner that enables both employer and

employee to explain their cases

• So what?

general requirements

Dealing with grievances (2)

• Take responsibility • Watchful eye and “nip in bud” at early stage • Deal swiftly and appropriately with grievances • Paper trail and communication • Deliver diversity training at regular intervals and keep a record of

attendees

Key points

• [name of manager]• [date]

Diversity for all

Content

• Introduction

• What is diversity

• Meaning of harassment

• Key messages

• What does discrimination mean to you?

• What does diversity mean to you?

• Who is responsible?

Introduction

• Disability• Sex – men and women (including pregnancy, maternity leave,

marital status)• Race – nationality, colour, ethnic or racial or national group• Age • Sexual orientation• Religion or belief• Gender• Perceptions• Views• Behaviour• Experience

What is diversity

• Unwanted and inappropriate conduct that:

o violates a person’s dignity; oro creates an intimidating, hostile, degrading, humiliating or

offensive environment

• Examples?

Meaning of harassment

• If you receive any unwanted conduct speak to individual to resolve or speak to manager

• You will receive support throughout • Any complaints will be investigated • Discrimination and harassment is a serious disciplinary offence that

can lead to dismissal – individuals will be dealt with appropriately• Treat all with dignity and respect

Key messages

Case Studies

Case study 1 – long term absence

Lazarus is the Sales Manager of the Nazareth Region. In January last year he started to suffer from stress and has been off work ever since. During the period of absence an expert medical report revealed that Lazarus was suffering from ‘work related stress’ following an incident in the region. Lazarus has now submitted a further doctors note for an additional three months off. Peter the Director at Nazareth is keen to replace Lazarus as he believes his absence is ‘hurting the region’.Peter calls you later that afternoon to confirm that he is due to meet with Lazarus this afternoon and intends to dismiss him on grounds of capability.

Case study 1 – long term absence

• What should Peter have done prior to the meeting?

• What are the associated risks if Peter decides to dismiss Lazarus?

• What alternatives are there to dismissal and how could Peter reduce the risk of a claim?

• What difference does it make that the medical evidence refers to ‘work related stress’?

Case study 2 – disciplinary

Andy and Sam both work in the Lightfingers region for lab supplies.On 1 July 2007 both Andy and Sam are caught taking lenses from the lab and placing them in their personal bags.Both are immediately suspended and charged with gross misconduct ‘intending to steal lenses’. The formal disciplinary takes place on 7 July and both admit to ‘intending to steal the lenses’. Both have been employed for 3 years, but Sam has a chequered disciplinary history and has a ‘live’ written warning on his record for stealing pens.Having concluded the investigation Mike the Director decides to dismiss Sam and issue a final written warning to Andy.You are asked to chair the appeal lodged by Sam.

Case study 2 - disciplinary

• Who should have been interviewed as part of the investigation?

• Can Mike justify the difference in treatment?

• Would it make a difference if the written warning was for something different (i.e. persistent absence) or if it had just expired?

• Sam is from Sri Lanka and claims that Andy was treated differently because of his race. What are the potential risks to the store, and are they justified?

Case study 3 - probationary

Sue started as an optical assistant in the Skive Store 3 months ago. Since starting her performance has not been reviewed, and her probationary period has now expired.Last Tuesday Sue did not turn up for work or report her absence.As a consequence of her absence Dan the Store Director has issued her a Final Written Warning for failing to follow store procedures.Sue has since raised a grievance against Dan claiming that as her absence was because of her young child’s illness the warning was ‘unfair’, she also claims that she is now being treated less favourably by the management.You have been asked to hear the grievance.

Case study 3 - probationary

• What if any difference does the expiry of probationary period make?

• Sue explained in her disciplinary hearing that she had sent a text to the Store Manager at 8.00am does this make a difference?

• Does the fact that the absence was a consequence of her child’s illness make a difference?

• What other considerations might be relevant?

• Could Sue bring a Claim and if so on what grounds?

Case study 4 – disciplinary

Mr X witnesses the Sales Manager, Bill, speaking to the receptionist, Eva, saying ‘you are a typical woman always complaining and questioning me I wish you would just go back to Poland’ .Mr X noted that Eva was visibly upset by the remarks but continued to work anyway.Mr X approaches the Director, Sam, and tells him what he has seen but makes it clear that he wishes to remain anonymous.Sam interviews Eva who insists that she does not want to get involved.

Case study 4 – grievance issues

• What potential action could Sam take?

• What options are available to Sam in conducting an investigation/disciplinary against Bill?

• Bill is dismissed following a disciplinary where Mr X’s identity remains secret – would the position change if Bill issued a claim for unfair dismissal and the the matter progressed to Tribunal?


Jeff felt that he was continually put down by his line manager because he was male. Jeff worked in a female dominated area and felt he had to work twice as hard to get any respect.Jeff lodged a grievance alleging sex discrimination.Tracey (store manager) invited Jeff to attend a grievance hearing, Jeff asked if his partner, Claude (who does not work at the store) could represent him. In the grievance hearing Jeff explained that he often had to put up with derogatory comments about the fact that he had a male partner.During the Grievance Tracey heard a long beep and thought that Jeff was recording her.Following the Grievance Tracey carried out an investigation into the numerous allegations which took 8 months.


• Should Tracey allow Claude to be Jeff’s companion?

• Should Tracey also investigate the allegations concerning the derogatory comments about Jeff’s partner?

• What should Tracey do if she believes Jeff is recording the meeting?

• Is the 8 month time period reasonable? If not what are the implications and what can Tracey do to minimise any risks?

Q&A Session

employment update & training day alison bell 29 january 2008

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