The Government has published its response to the consultation on the Equality Bill, providing employers in both the public and private sector with a glimpse of the future of equality legislation. Confirming many of the proposals outlined in the White Paper published in June (reported in our earlier update), the Government has also outlined its intention to:

• harmonise the definition of indirect discrimination across all strands of discrimination to refer to an apparently neutral "provision, criterion or practice" which puts or would put people of the claimant's group at a particular disadvantage
  
  
• harmonise the concept of justification, requiring that the justification be a "proportionate means of achieving a legitimate aim"
  
  
• extend protection against discrimination for people who associate with transsexual people and protect transsexual people against indirect discrimination
  
  
• give further consideration to extending the protection that already exists for employees who are harassed by a customer or client because of their sex to protection from such harassment on all other grounds

The Government response also rules out other reforms previously discussed, including statutory protection against discrimination on the ground of genetic predisposition and protection against discrimination for carers (although the Government is considering the implications of the Coleman case reported in last week's update, in which the European Court of Justice confirmed that discrimination on the grounds of association with a disabled person is unlawful).

The next few months will see further consultation with various bodies on different aspects of the proposals before the Bill is introduced in the next parliamentary session.

Unreasonable delay does not prevent completion of statutory dismissal procedure

Overturning a line of authorities from the Employment Appeal Tribunal, the Court of Appeal has confirmed that an employer's failure to comply with a procedural requirement of the statutory dismissal and disciplinary procedures (DDP) (e.g. unreasonably delaying the process) does not entitle the employee to complain that he or she has been automatically unfairly dismissed.

In Selvarajan v Wilmot and others, the Court of Appeal confirmed that section 98A of the Employment Rights Act 1996 requires three factors to be established before a dismissal can be deemed automatically unfair:

• a DDP applies;
  
  
• the DDP was not completed; and
  
  
• the non-completion of the DDP is wholly or mainly attributable to failure by the employer to comply with its requirements.

The Court of Appeal stated that if the DDP has been completed, the question of non-compliance with the general requirements of the procedure (i.e. whether there has been an unreasonable delay) never arises. Completion of the procedure is not conditional or subject to compliance with the general requirements of the procedure. The DDP can therefore be completed even if there has been unreasonable delay in the employer taking steps. Only where the DDP has not been completed is it relevant to consider compliance with the general requirements, in order to decide who is responsible for the non-compliance.

An employee facing an unreasonable delay therefore has to decide whether or not to complete the DDP. If the employee does not complete the DDP and the tribunal finds that the delay was not unreasonable, compensation may be increased by up to 50% in the employer's favour as the employee would be responsible for not completing the DDP.

As reported in earlier updates, the statutory dispute resolution procedures are due to be repealed in April 2009 and employers will instead be required to follow a revised Acas code of practice.

Tribunals Service report increase in claims

The Tribunals Service has released its annual report which contains statistics relating to all tribunals. The report includes the following statistics in relation to Employment Tribunals for 2007/08:

• The number of applications received by the Employment Tribunal was 189,348, compared to 143,474 received in 2006/07.  This was 42% higher than expected, mainly due to the receipt of high volume multiple claims. As these types of claim remain in the system much longer than other types of claims, this also contributed to a 73% increase in the number of outstanding cases from 138,200 in April 2007 to 239,300 in March 2008.
  
  
• Out of the 189,348 applications, 86,237 were disposed of compared to 107,412 in 2006-07.  The report states that this fall in the number of disposals was also largely due to the increased receipt of multiple claims.
  
  
• 74% of cases in the Employment Tribunal were heard within 26 weeks of receipt which was one percentage down on the target of 75%.
  

Acas reports similar rise in cases

Acas has also published its annual report, outlining its activity for the year ending 31 March 2008. The report indicates that the cases passed to Acas for conciliation rose a quarter (24.9%) on last year. It also states that:

• the number of tribunal claims received for conciliation from the Employment Tribunal increased from 105,177 in 2006/07 to 151,249 in 2007/08.
  
  
• claims involving age discrimination have increased from 739 in 2006/07 to 2,652 in 2007/08.
  
  
• equal pay has also overtaken unfair dismissal to become the largest type of claim, with 53,952 cases citing equal pay as the main cause of complaint. In 2006/07, there were 25,264 equal pay claims. 

Tips can no longer count towards NMW

The Government has announced its plans this week to amend regulations so that tips can no longer count towards payment of the National Minimum Wage. The changes, likely to come into force in 2009, are intended to end the practice of employers using gratuities and service charges processed through the payroll to 'top up' staff wages to meet the £5.52 per hour National Minimum Wage (which rises to £5.73 on 1 October).

A consultation on implementing the Government's recommendations will be launched in the autumn and guidance will be available for both workers and employers to ensure a smooth transition when the regulations are changed.

The cost of workplace bullying

Employers' failure to tackle the root causes of bullying in the workplace is costing the UK economy £13.75 billion a year, according to a recent report.

The report, "The Costs of Workplace Bullying" (author, Dr Sabir Giga) also estimates that in 2007, 33.5m jobs were lost by UK organisations due to bullying related absenteeism. Further, almost 200,000 employees would have left their jobs and the equivalent of 100m days productivity were lost as a result of bullying.


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