Employment Update - 8 May 2009

Swine flu – action points for employers 

The impact of swine flu is being felt worldwide, causing much confusion and panic. A recent report from the Institute of Payroll Professionals has also stated that British businesses are now suffering from swine flu "sickies", with sickness absence rates up 8.2% on what would usually be expected at this time of year.

Swine flu is therefore clearly having a knock-on effect in the workplace. To address the many challenges this virus poses for employers, here is our checklist of action points. This document will be updated as matters develop. 

Equality Bill – the key highlights

The long-awaited Equality Bill was published last week, together with a White Paper, A Fairer Future – The Equality Bill and other action to make equality a reality. The Bill has two key purposes: to harmonise discrimination law and to strengthen the law to support progress on equality. It proposes a number of key changes which will impact on both public and private sector employers. Here are the main highlights:

Tackling socio-economic disadvantage

Attracting much of the recent publicity, the Bill will introduce a new duty on public authorities (including Government departments, local authorities and NHS bodies) to tackle the unequal outcomes which result from socio-economic disadvantage. The duty will apply only to the broad, strategic decisions made by public authorities, such as deciding priorities and setting objectives. The duty is intended to be "light touch" to enable public bodies themselves to assess how relevant the duty is to them and how they are going to meet it. Guidance will be published ahead of the new duty coming into force to enable public bodies to prepare for the new duty.

Equality duty

A new streamlined public sector equality duty is due to replace the race, disability and gender equality duties. The equality duty will also be extended to cover all discrimination strands, including gender reassignment. The duty is on public authorities to have due regard to the following when exercising their functions:

• eliminating discrimination, harassment, victimisation and any other conduct prohibited by the Bill
  
  
• advancing equality of opportunity between people who share a protected characteristic and people who do not share it
  
  
• fostering good relations between people who share a protected characteristic and people who do not share it

Reporting on the gender pay gap

The Bill will outlaw pay secrecy clauses, making it unlawful to stop employees discussing their pay with their colleagues.

The Bill also contains a power to require private sector employers with 250 or more employees to report on their gender pay gap. The intention is to use this power from 2013 if sufficient progress on reporting is not made by then. The Equality and Human Rights Commission (EHRC) is to begin a programme of consultation with the private sector to develop a set of measures for reporting on the gender pay gap. The EHRC will consult with the CBI and other business bodies, the TUC and individual trades unions, women's groups and other stakeholders throughout Great Britain on the most appropriate ways for measuring and publishing pay differentials. The aim is to issue a document for consultation in the summer.

The Bill will also include powers which require public authorities to report on equality issues. The details of this proposal will also be consulted on during the summer. It is anticipated that public bodies with over 150 employees will be required to provide annual details of their gender pay gap (as well as their ethnic minority and disability employment rate).

Positive action

Employers, where they feel it is appropriate, will be able to take under-representation into account when selecting for appointment or promotion Between two equally qualified candidates. However, making decisions irrespective of merit (i.e. quotas) or having an automatic policy of favouring those from under-represented groups will remain unlawful. 

Simplification and harmonisation measures

The Equality Bill seeks to simplify and harmonise existing definitions and tests used in the different pieces of discrimination law. The measures include:

• Clarifying that it is direct sex discrimination outside the workplace to treat a breastfeeding mother less favourably
  
  
• Extending protection against discrimination on basis of perception and association to all strands 
  
  
• Harmonising the definition of indirect discrimination
  
  
• Bringing equal pay within the Equality Bill 

Age discrimination outside the workplace

The Bill prohibits age discrimination in the provision of goods, facilities, services and the exercise of public functions where people are aged 18 or over. Consultation on the details of the new provisions is due to take place over the summer.

Disability

Changes will be made to the existing legislation on disability discrimination. Following Lewisham v Malcolm (click here to read our earlier article on this case), the stated aim is to re-establish an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer to defend the treatment.

The Bill therefore adopts a revised form of disability-related discrimination, alongside, for the first time, including disability in the list of protected characteristics covered by the indirect discrimination provisions. It has also removed the list of capacities which relates to the definition of disability.

Harassment

The Bill aims to achieve uniformity of approach in respect of harassment. It also extends liability of employers for persistent harassment of their employees by third parties in relation to race, disability, sexual orientation, religion or belief and age.

Strengthening the powers of Employment Tribunals

The Bill will enable Employment Tribunals to make recommendations in discrimination cases which relate not only to the individual claimant but also to persons other than the claimant. This is intended to help prevent similar types of discrimination occurring in the future.

Multiple discrimination

Further discussions will be held with business and equality groups about how to address multiple discrimination. See below for further information.

It is worth remembering that the text of the Bill is subject to further change. The Bill is expected to receive Royal Assent in Spring 2010, with the majority of the proposals expected to come into force in Autumn 2010. Certain parts of the Bill, such as the socio-economic duty and public sector equality duty, are likely to come into force in 2011 so watch this space...

Multiple discrimination - consultation

Following the publication of the Equality Bill, outlined above, the Government has issued a discussion paper seeking views on how to provide protection from "intersectional multiple discrimination".

Multiple discrimination arises where people are treated less favourably because of a combination of characteristics (e.g. black women or men of a particular religion can face discrimination and disadvantage because of stereotyped attitudes or prejudice relating to particular combinations of protected charateristics). At present, individuals who experience multiple discrimination do not always have a remedy under the law and are often required to bring separate claims in respect of each protected characteristic, such as his or her race or sex, which does not necessarily reflect the discrimination which has actually occurred.

The Equality Bill does not contain provisions on multiple discrimination at present. The Government, however, has examined the evidence and has developed a proposal for protection from multiple discrimination which would enable claims to be brought combining two protected characteristics. Depending on the feedback received, this would be implemented in or after April 2011. The consultation closes on 5 June 2009.

Working time opt-out to be retained  

Following protracted negotiations, the attempts to reach agreement on a revised Working Time Directive have failed. In the absence of agreement the Directive as it currently stands, including the opt-out from the 48-hour working week, will remain in force for the foreseeable future.

The European Parliament had initially argued that the opt-out should be phased out. However, certain Member States, including the United Kingdom, were adamant that the opt-out was of vital importance to business.

A conciliation meeting in Brussels between the Member States, European Parliament and the European Commission was unable to resolve the long-standing differences between the European Parliament and Member States over whether to retain the opt-out or not.

The proposed revised Directive will officially fail when the conciliation period comes to an end in May. It will then be for the European Commission to decide how to proceed. 

Using tips to make up NMW will be prohibited from 1 October 2009