Newsletter
From time to time, and particularly when there are any significant developments in the field of Employment Law, Knight-Webb Solicitors publish a newsletter. To subscribe to this newsletter, please email sunita@knightwebb.com.
You can read previous newsletters online by clicking on the links below:
Employment Law Update April 2009
Employment Law Update October 2008
Employment Law Update November 2007
Employment Law Newsletter Spring 2010
In this edition of the Newsletter, we highlight some recent important changes in employment law. Employers should update their employment policies and procedures to take into account certain of these changes, if they have not already done so.
The Equality Act 2010 – Housing discrimination legislation under one roof
The Equality Act 2010 has received Royal Ascent. The majority of the provisions will come into force in October 2010 with the implementation of some provisions being delayed until next year to allow public and private sector organisations time to prepare. The Act consolidates and extends discrimination and equality laws, and aims to harmonise and simplify discrimination laws. Here are some key changes:
Discrimination based on association and perception
The Act makes it unlawful to treat a person less favourably because of a protected characteristic. This means that (with the exception of marriage or civil partnerships), the new definition does not require the person discriminated against to have the protected characteristic themselves in order to claim protection. For example, an employee who is treated less favourably because they care for a disabled or elderly relative, or an employee who is subject to offensive jokes because their son is homosexual, will be protected as a result of their association with a person who has the protected characteristic.
The definition is also wide enough to protect against discrimination based on perception. For example, a person treated less favourably because they are perceived to be homosexual or of a particular race or age group will be protected from discrimination, whether or not that perception is correct.
Harassment by third partiesEmployers will be potentially liable if an employee is harassed by third parties including customers or suppliers on the grounds of age, disability, gender reassignment, race, religion or belief, sex and/or sexual orientation. The employer is liable if the harassment has occurred on two or more occasions and the employer has failed to take reasonably practicable steps to stop it.
Positive action in recruitment and promotion
The Act permits employers to take positive action to recruit or promote one candidate over another where two or more candidates are as qualified as each other, where candidates who have that protected characteristic are under-represented or suffer a disadvantage.
Combined discrimination
The Act makes it possible to bring a direct discrimination claim in relation to a combination of two of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Under previous legislation, workers had to show that the reason or principal reason for the discrimination was a particular characteristic.
The government consultation paper provides the example of a worker who is passed over for promotion because she is a black woman. Under previous legislation, she would have to bring separate claims for sex and race discrimination which may limit her chances of success if the employer can show that it did not discriminate against black men or white women. Under the Act, she will be able to bring a single claim in respect of the combined characteristics.
Pre-employment health questions
Employers will not be able to ask job applicants health questions, other than in certain limited circumstances such as to establish if an applicant will be able to carry out a function which is intrinsic to the work concerned. But, enforcement action can only be taken by the Commission for Equalities and Human Rights, and not directly by the employee concerned.
However, the Act makes it easier for an applicant who has been asked about their health during the recruitment process to succeed in a discrimination claim. Except in limited circumstances, the onus will be on the prospective employer to show there was a non-discriminatory explanation for rejecting the applicant.
Secrecy clauses – pay
The Act will render unenforceable secrecy clauses in employment contracts which seek to prevent employees from disclosing their pay to other employees, where the disclosure is made to ascertain if the difference in pay potentially amounts to discrimination. If an employer takes action against an employee for making or seeking a relevant pay disclosure, this will amount to victimisation.
Other changes
Right to request unpaid time-off for training
Employees with at least 26 weeks of continuous employment have the right to request unpaid time-off work to undergo training which they believe will improve their effectiveness at work and the performance of their employer’s business. Requests for time-off will need to be treated in a similar way to requests for flexible working or requests to work past normal retirement age. Employers must follow a prescribed procedure, consider seriously any request made but may refuse a request for one or more of the reasons set out in the legislation.
This right came into force on 6 April 2010 for employers with 250 or more employees. The right will extend to businesses of all sizes from April 2011.
Fit notes
As was widely reported in the press, the traditional ‘sick note’ has been replaced by the ‘fit note’. The new sickness form enables GPs to indicate that a patient may be fit for work taking account of particular advice. There is no absolute obligation on the employer to implement the changes suggested by the GP. However, a failure to do so where the employee is disabled may constitute unlawful discrimination by way of a failure to make reasonable adjustments. The employer’s failure may also be relevant if the employee brings an unfair dismissal claim and the tribunal has to consider whether a dismissal on the grounds of incapability is fair.
Extension of paternity leave
Statutory paternity leave will be increased by a further six months. The right applies to babies born on or after 3 April 2011. Parents will be able to share the 12 month period of leave to which only mothers are currently entitled. Broadly, under the new legislation, if a mother does not take her full entitlement to statutory maternity leave, the father/partner of the mother will be able to take the balance as additional paternity leave.
Knight-Webb Solicitors are specialists in employment law. We pride ourselves in providing a first-rate, cost-effective and personal service to clients. We can help you to avoid the employment law pitfalls and ensure that your procedures are up-to-date, taking into account all the recent changes in the law, including those outlined in this Newsletter. Contact Sunita Knight-Webb on 020 7207 6195 or at sunita@knightwebb.com .