As
reported in our last update, the House of Lords
has delivered a judgment which may have a
potentially significant impact on the law on
disability-related discrimination.
Click
here
to read our article on the judgment, which
analyses both the legal and practical implications
for employers.
ECJ confirms disability
discrimination by association is
unlawful
Continuing
the theme of disability discrimination, the
European Court of Justice (ECJ) has also confirmed
this week that the Equal Treatment Framework
Directive (Framework Directive) does prohibit
direct disability discrimination and/or harassment
by association, in line with the Advocate
General's opinion earlier this
year. As the ECJ's decision suggests
that discrimination by association should be
covered in respect of disability, sexual
orientation, age, and religion or belief (as all
grounds fall within the scope of the Framework
Directive), this is an important decision.
In
this case, Coleman v Attridge Law, Ms
Coleman worked as a legal secretary for Attridge
Law, a firm of solicitors, and was also a carer
for her disabled son. She claimed that she was
directly discriminated against and harassed by her
former employer who treated her less favourably
than employees with non-disabled children and
subjected her to conduct that created a hostile
atmosphere for her. She brought claims under the
Disability Discrimination Act 1995 (DDA) and
argued that she had suffered discrimination by
association with her son's disability. The case
was referred to the ECJ.
The
ECJ has now confirmed that the Framework Directive
seeks to combat all forms of discrimination on
certain grounds (including disability) and applies
not to a particular category of person but by
reference to the particular ground of
discrimination. If its application was
limited only to disabled people, it would reduce
the protection it is intended to guarantee. Even
though Ms Coleman was not herself disabled, the
fact remains that it is the disability which is
the ground for the less favourable treatment she
claims to have suffered. As harassment is deemed
to be a form of discrimination, for the same
reasons, the Directive was held not to be limited
to the prohibition of harassment of people who are
themselves disabled.
This case will return
to the Employment Tribunal to consider whether the
DDA can be interpreted in such a way as to give
effect to the Directive. If it cannot, amendments
may need to be made to the legislation.
Public statement can
constitute direct discrimination
In
another key judgment on discrimination, the ECJ
has followed the Advocate General's opinion in
Centrum voor Gelijkheid van Kansen en voor
Racismebestrijding v Firma Feryn NV (as
reported in our earlier update) and
confirmed that a public statement made by an
employer which indicates that job applications
from persons of a certain ethnic origin will be
turned down does constitute direct discrimination
in breach of the Race Directive, despite the
absence of an individual claimant.
In
this case, the employer stated in the Belgian
media that he would not employ Moroccans, as
customers did not want them coming into their
homes. He said that he must comply with his
customers' requirements and that employing
immigrants would put him out of business.
Agreeing
with the Advocate General, the ECJ confirmed that
the aim of the Race Directive is "to foster
conditions for a socially inclusive labour market"
and this objective would be hard to achieve if the
directive was limited only to those cases in which
an unsuccessful candidate for a post, considering
himself to be the victim of discrimination,
brought legal proceedings against the employer.
The employer's public declaration that it would
not recruit employees of a particular ethnic or
racial origin would strongly dissuade certain
candidates and therefore constituted direct
discrimination. The existence of this direct
discrimination was not dependant on the
identification of a "victim".
The
ECJ also noted that such public statements are
sufficient for a presumption of the existence of a
directly discriminatory recruitment policy and it
is for the employer to provide evidence that it
has not breached the principle of equal treatment,
which it could do by showing that its actual
recruitment practice does not correspond to those
statements.
The
ECJ did not make a recommendation for a particular
remedy in such cases, only setting out particular
options, which include a finding of discrimination
in conjunction with an adequate level of
publicity, an injunction ordering the employer to
cease the discriminatory practice and, where
appropriate, a fine and an award of damages.
Importantly,
the ECJ confirmed that it is for member states to
decide whether to pass legislation to enable
anti-racism bodies to bring such claims where no
individual has complained of discrimination. As
the Equality and Human Rights Commission cannot
bring proceedings in such circumstances, there is
currently no recourse in the UK unless a victim
comes forward.
Dispute resolution -
consultation on related matters
Further
to our recent reports of the consultation on the
draft Acas Code of Practice on discipline and
grievance and on the accompanying guidance, the
Government has published a further consultation paper on
a number of measures intended to complement the
forthcoming change to dispute resolution.
The
issues covered by the consultation, which closes
on 26 September 2008, include:
-
extending
the definition of a "relevant advisor" who can
sign a compromise agreement (to include members
of the Chartered Institute of Personnel and
Development (CIPD))
-
introducing
broader powers for employment tribunals to make
recommendations in discrimination
cases
-
introducing
a procedure for certain straightforward cases to
be determined without the need for a tribunal
hearing (with the parties consent and if an
Employment Judge considers it
appropriate)
-
adding
holiday pay to the list of jurisdictions
normally heard by an Employment Judge sitting
alone
-
introducing
transitional arrangements for the implementation
of the new dispute resolution
measures
-
introducing
revised Employment Tribunal forms
EU Council publishes
proposed wording to amend Working Time Directive
and for Temporary Workers Directive
Following
the agreement reached by EU employment ministers
in June (see our earlier
update), the EU Council has published its
proposed wording for an amended Working Time
Directive and a Temporary Workers Directive.
Working
Time
The
proposed amendments to the Working Time Directive
include the following:
Opt
out
The
entitlement to opt out of the 48-hour week
remains. However, the right to opt out is subject
to the following conditions:
-
each
worker must renew their opt-out after a year (or
less, if provided by national
law)
-
opt-outs
will be void if signed at the same time as an
employment contract or during the first four
weeks of the employment
relationship
-
workers
who opt out cannot work more than 60 hours a
week, averaged over a period of three months,
unless permitted in a collective agreement or an
agreement between social partners
-
working
time plus inactive on-call time (see below)
which is regarded as working time cannot exceed
65 hours a week, averaged over a period of three
months, unless permitted in a collective
agreement
-
workers
can opt back in with immediate effect during the
first six months or up to three months after the
end of any probationary period, whichever is
longer. Thereafter, the employer may require the
worker to give two months' notice in
writing
On-call
time
There
are new definitions of "on-call time" (which only
includes on-call time spent at the workplace) and
"inactive part of on-call time", which is on-call
time during which the worker is not required to
"effectively carry out his activity or duties".
Inactive on-call time will not be regarded as
working time or as a rest period unless otherwise
provided under national law, a collective
agreement or an agreement between social partners.
Compensatory
rest
Where
a worker's rest period has been interrupted or
delayed, the worker will be entitled to
compensatory rest within a reasonable period,
which will be determined by national legislation,
collective agreement or agreement between social
partners.
Temporary
Workers
The
proposal for this directive will give temporary
agency workers, for the duration of their
assignment at an undertaking, the right to the
same basic working and employment conditions as
would apply if they had been recruited directly by
that undertaking to occupy the same job. A
temporary agency worker is defined as a "worker
with a contract of employment or an employment
relationship with a temporary agency with a view
to being assigned to a user undertaking to work
temporarily under its supervision and
direction".
However,
as long as an adequate level of protection is
provided for temporary agency workers, member
states may be able to derogate from this and apply
a qualifying period for equal treatment. This
potentially enables the 12 week qualifying period
recently agreed between the Government, the CBI
and the TUC (as reported in our earlier update) to be
applied in the UK.
"Basic
working and employment conditions" will be defined
as working and employment conditions relating to
the duration of working time, overtime, breaks,
rest periods, night work, holidays, public
holidays and pay. It may be possible for
working and employment conditions to be defined
differently, provided that the overall level of
protection is respected.
Undertakings
will be required to provide temporary agency
workers with access to amenities (e.g. canteen and
transport services) under the same conditions as
workers employed directly by the undertaking,
unless the difference in treatment can be
justified. Member states will also have to take
steps to improve temporary agency workers' access
to training and to childcare facilities in their
temporary agencies in order to enhance their
career development and employability. The
proposal for the directive also provides that
agency workers must be told of any vacancies in
the undertaking, to give them the same opportunity
as other workers to find permanent employment.
The
proposed wording of both directives will now be
debated by the EU Parliament later this
year.
New code of practice on
whistleblowing
The
British Standards Institution, in collaboration
with Public Concern at Work, the independent
authority on public interest whistleblowing, has
produced a new code of practice,
entitled "Whistleblowing Arrangements".
The
code sets out good practice for the introduction,
revision, operation and review of effective
whistleblowing arrangements (including the
introduction and maintenance of a whistleblowing
policy) and has been developed to help
organisations in the private, public and voluntary
sectors.
Mediation still underused
in workplace dispute resolution
Employers
are still failing to embrace mediation to help
resolve conflict in the workplace, according
to a new CIPD report.
The
report, "Workplace mediation: how employers do
it", is based on a survey of nearly 800 employers.
More than half (57%) said their organisation had
no experience of using mediation to help manage
conflict at work. Amongst those employers that do
use mediation, more than 80% report that it helps
improve relationships between employees and 71%
believe that mediation reduces stress associated
with the use of formal disciplinary or grievance
procedures.
Respondents
also consider informal discussions and mediation
to be the most effective approaches to resolving
conflict at work. Mediation is believed to be most
suitable for preventing the breakdown of working
relationships, tackling bullying and harassment,
as well as addressing discrimination in the
workplace.
