Employment Update
20 March 2008

Advocate General - public statement of discriminatory recruitment practice amounts to direct discrimination

According to the Advocate General, a public statement made by an employer which indicates that job applications from persons of a certain ethnic origin will be turned down does constitutes direct discrimination in breach of the Race Directive.

In Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV, a  Belgian firm specialising in the sale and installation of doors placed a large "vacancies" sign on its premises alongside a main road. The employer stated in the media that he would not employ Moroccans as customers "did not want them coming into their homes". He also stated that employing immigrants would put him out of business.

The Belgian body for the promotion of equal treatment (CGKR) brought proceedings against the firm. It claimed that the court should declare that the employer had breached Belgian anti-discrimination legislation implementing the Directive and should also order the employer to end its discriminatory recruitment policy. The court held that the public statements did not constitute acts of discrimination and were merely evidence of potential discrimination. The CGKR had neither claimed nor demonstrated that the employer had ever actually turned down a job application on the grounds of the applicant's ethnic origin.

The case was appealed and a number of questions relating to the scope of the Directive were referred to the European Court of Justice (ECJ). The Advocate General has now given his Opinion on the matter, confirming that by publicly stating his intention not to hire people of a certain racial or ethnic origin, the employer is excluding those people from the application process and from his workplace. The announcement that such people are unwelcome as job applicants is therefore itself a form of discrimination. The Advocate General also noted that it would lead to awkward results if discrimination of this type was excluded altogether from the scope of the Directive as it would allow employers to discriminate on the grounds of racial or ethnic origin simply by publicising the discriminatory character of their recruitment policy as overtly as possible beforehand.  

The ECJ will pass judgment on this case later this year. It therefore remains to be seen whether it will agree with the Advocate General and to what extent such public statements will be unlawful in the UK.

When to draw inferences from discrimination questionnaires

The Employment Appeal Tribunal (EAT) has confirmed that drawing inferences from an employer's replies to a questionnaire served under the Race Relations Act 1976 (RRA) is not a "tick-box exercise".

Under the RRA, an individual who considers that he may have been discriminated against is entitled to serve a questionnaire on a respondent or potential respondent. The respondent is not required to reply to the questionnaire. However, if the respondent deliberately and without reasonable excuse omits to reply within 8 weeks (or, where the case involves discrimination on the grounds of colour or nationality, within a reasonable period) or the reply is evasive or equivocal, the tribunal may draw any inference from that fact that it considers just and equitable, including an inference that the respondent committed an unlawful act.

In D'Silva v NAFHE (now known as University and College Union) and others, the EAT shed further light on the principle of drawing inferences, in view of the "tendency" in discrimination cases for respondents' failures in answering a questionnaire, or otherwise in providing information or documents, to be relied on by claimants, and even tribunals, as automatically raising a presumption of discrimination. The EAT stated that this is not the correct approach.

Whilst such failures are matters from which an inference can be drawn, that is only in "appropriate cases". It is necessary in each case to consider whether, in the particular circumstances of that case, the failure is capable of constituting evidence which supports the inference that the respondent acted discriminatorily in the manner alleged. If this is case, the tribunal should consider whether, in the light of any explanation supplied, drawing the inference is justified. Importantly, the EAT noted that there will be many cases where it should be clear from the start, or soon thereafter, that any alleged failure of this kind, however reprehensible, has no bearing on the reason why the respondent did the act complained of. In such cases, the EAT stated that time and money should not be spent pursuing the point.

Changes to Sex Discrimination Act 1975 - pregnancy, maternity, harassment 

The long-awaited Sex Discrimination Act 1975 (Amendment) Regulations 2008 have now been published, introducing changes which will come into force on 6 April 2008. The Regulations amend the Sex Discrimination Act 1975 and are intended to bring the Act into line with the Equal Treatment Amendment Directive. The Regulations follow the Equal Opportunities Commission's successful judicial review of the Government's implementation of the Directive last year.

From 6 April 2008, the following changes will apply:

• an amended definition of discrimination on the ground of pregnancy or maternity leave will take effect, eliminating the current requirement for a comparator who is not pregnant or who is not on maternity leave
• an amended definition of harassment will also take effect, eliminating the current issue of causation and requiring only that the harassment is related to the sex of the victim or of another person. This is intended to cover a wider range of conduct and also facilitate claims of harassment by witnesses
• employers will become liable for harassment if they fail to take reasonably practicable steps to prevent repeated harassment of an employee by third parties, such as clients and customers, where the employers are aware of such conduct  

The amendments introduced by the Regulations also eliminate any distinction in the types of claim that a woman can bring in relation to the periods of ordinary and additional maternity leave. A woman may therefore have a claim if she is not afforded the same benefits of the terms and conditions of employment during additional maternity leave as she is during ordinary maternity leave. The amendments also facilitate claims for discrimination in relation to a discretionary bonus which relate to the two week period of compulsory maternity leave. These changes will apply only to women whose expected week of childbirth begins on or after 5 October 2008.

Changes to Sex Discrimination Act 1975 - goods and services

Major increase in British employers training staff in business ethics

A study by the Institute of Business Ethics (IBE) has found a major increase in the number of British employers training their staff in business ethics.

The IBE surveys UK companies every three years on the use of their codes of ethics. The 2007 Use of Codes in Business Ethics shows that 71% of businesses now provide training on codes, compared to 47% in 2004, the first time the majority of companies surveyed provide such training.

The study also found that more boards of directors are taking a direct interest in the functioning of codes of business ethics and 95% of companies provide a way for employees to raise ethical issues on a confidential basis.

Mothers not supported on return to work

Most workers do not feel that their employers do enough to encourage mothers on maternity leave to return to the workplace, according to a recent poll by Monster.

The results of the poll of nearly 500 UK workers revealed that only 17% of workers believe that their employers do everything in their power to encourage new mothers back to work. Significantly, 36% believed that their employers did not encourage this at all, and would rather have someone without commitments in the workplace.

Workers lack the energy to get through the day

Workers in Britain only have enough energy to work for five hours of the day, according to a new study by Boots.

Their research shows that an employee loses on average 151 minutes a day through tiredness. This has led to employees in Britain 'slumping' at their desks for 39,260 minutes or 27 days across a 52 week year. According to the research, this is costing each employer £2,491.56 per person per year.

The majority of those polled say that although they sleep for seven hours a night, they often find it difficult to concentrate at work due to tiredness. During this time they find it easier to surf the internet (37%) or visit the snack machine (40%) - rather than work - until they regain their concentration.

Subscribe now

If you have received this update from a colleague and wish to receive it yourself on a fortnightly basis, just click here to subscribe.