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.


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