Government fails to implement the Equal Treatment Directive

Following our last update, the High Court has now confirmed that UK sex discrimination legislation does not properly implement the EU Equal Treatment Amendment Directive (the Directive).

The Sex Discrimination Act 1975 (the Act) was amended in October 2005 by the Employment Equality (Sex Discrimination) Regulations 2005 (the Regulations). The amendments introduced new provisions, which expressly outlawed harassment on the grounds of sex and sexual harassment, and discrimination on the grounds of pregnancy and maternity leave. The new provisions also sought to clarify the circumstances in which a woman on maternity leave could bring a claim for discrimination.

The Equal Opportunities Commission (EOC), however, recently lodged judicial review proceedings to challenge the way in which the Government implemented the Directive in the form of the Regulations. In Equal Opportunities Commission v Secretary of State for Trade and Industry, the High Court agreed with most of the issues raised by the EOC and has confirmed that the Act should be amended in order to:

In response to the review, the DTI has issued a consultation document entitled 'Resolving disputes in the workplace', which seeks views on a wide range of issues arising from the recommendations. The closing date for responses to the consultation is 20 June. For many employers, who find the statutory procedures cumbersome and ineffective, both the review and the consultation are undoubtedly welcome developments.

Whistleblowing - reasonable belief is sufficient

The Court of Appeal has recently handed down a decision which will have an impact on many future whistleblowing cases.

Under the whistleblowing provisions in Part IVA of the Employment Rights Act 1996, a 'qualifying disclosure' is one which, in the reasonable belief of a worker, tends to show that a 'relevant failure' (such as a criminal offence or the failure to comply with any legal obligation for example) has occurred, is occurring, or is likely to occur.

In the earlier case of Kraus v Penna, the EAT confirmed that if a legal obligation does not exist, as a matter of law, a worker will not be protected by the legislation by claiming he reasonably believed it did.

However, the Court of Appeal in Babula v Waltham Forest College has now overturned this point, stating that it is not a correct statement of the law and should not be followed. As long as a worker's belief (which is inevitably subjective) is considered by a tribunal to be objectively reasonable, the fact that the belief turns out to be wrong does not render the belief unreasonable and deprive that worker of statutory protection. The fact that a whistleblower may be wrong is therefore irrelevant, provided his belief is reasonable and the disclosure is made in good faith.

This is a sensible decision and is in line with the policy and purpose of whistleblowing legislation in the UK. The interpretation provided in Kraus v Penna was a significant obstacle for whistleblowers to overcome and the Court of Appeal's approach will undoubtedly strengthen their position in the future, in such circumstances.

Constructive dismissal - does the statutory grievance procedure apply?

The Employment Appeal Tribunal (EAT) has confirmed that the statutory grievance procedure does apply where an employee resigns and alleges constructive dismissal during the course of disciplinary proceedings.

In Pinkus v Crime Reduction Initiative, the employee resigned before the conclusion of the disciplinary proceedings. Two months later, she raised a grievance concerning the manner in which she was victimised and forced to resign. She subsequently confirmed that she wanted to go through the statutory grievance procedure as she was alleging constructive dismissal (i.e. that the employer's conduct constituted a fundamental breach of contract, entitling her to terminate her employment without notice).

When the employee submitted her claim for constructive dismissal to the tribunal, it was outside the three month time limit. The tribunal therefore initially looked at whether the statutory grievance procedure applied as, if it did, the time limit could be extended by a further 3 months. The tribunal found, however, that the statutory grievance procedure did not apply, as the employee's grievance in this case was that her employer had been contemplating dismissing her. The tribunal relied on regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that the statutory grievance procedure does not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

The EAT, however, overturned this finding. The employee's letter made it clear that she was terminating her contract without notice as a result of the employer's conduct, which amounted to constructive dismissal. This did not fall within regulation 6(5), which only covers actual dismissals. The statutory grievance procedure therefore applied and the time limit for bringing the claim could be extended.

Black and Asian women "missing" from almost a third of workplaces

The EOC has published its final report detailing the findings of its two year investigation into Pakistani, Bangladeshi and Black Caribbean women and work.

Its report, Moving on Up? The Way Forward, has established that Pakistani, Bangladeshi and Black Caribbean women face significantly greater penalties than white women in the workplace. The EOC report identifies 5 "employment gaps" between the position of Pakistani, Bangladeshi or Black Caribbean women and white women: labour market participation, unemployment, progression, pay gaps and segregation into a narrow range of professions. The report also includes 10 practical ways to create a workplace that works for everyone (based on examples from real employers). These include promoting diversity from the top down, being open and transparent about the range of opportunities and providing managers with the tools to demonstrate a climate of respect in the workplace.

ACAS guidance notes updated

ACAS has updated its guidance note on the Working Time Regulations and has also published new guidance to enable managers to manage conflict at work effectively.

Stress on the increase - new CIPD guidance

Around one in five people experience high levels of stress at work, and 44% say that they feel under excessive pressure once or twice a week or more, according to the Chartered Institute of Personnel and Development (CIPD).

In response to the rising levels of stress, the CIPD has published three new guides, in association with the Health and Safety Executive. The guides are tailored to the needs of line managers and HR professionals and draw on 19 key management behaviours that play a vital role in preventing, identifying, and tackling stress in the workplace effectively.

Largest trade union created

Members of Amicus and T&G voted in favour of a merger earlier this month, which will create Britain and Ireland's newest and biggest trade union, with around two million members. The new union will cover a wide range of industries and services including transport, manufacturing, aviation, food and farming, the financial sector as well as public services and the voluntary sector.

High price for equality

Hundreds of thousands of men working in the public sector are facing salary cuts of up to £15,000 a year as equal pay agreements take effect, according to The Times.

Equal pay claims for up to 1.5 million public sector workers could cost the taxpayer more than £10 billion and result in male staff losing up to 40 per cent of their salary. As each case is successful, further claims are being brought, with many workers now eligible for equal pay settlements stretching back over six years. The Times report suggests that the escalating costs could potentially cripple councils and employers.

Employment Retention Bill

The Employment Retention Bill had its first reading in the House of Commons last week. The Bill makes provision for a statutory right to rehabilitation leave (or disability leave) for newly disabled people and people whose existing impairments change. As this is a Private Member's Bill, however, it remains to be seen how far it will progress.

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