Different standards of dress = sex discrimination? While it can seem relatively harmless to request that all employees look smart and professional whilst at work, is it just as harmless for employers to set different standards of dress for men and women? For example, is it justified to ask a male employee to cut his long hair when a female worker would not be required to do the same? There is the fear that an unequal dress code can have serious implications on business, affecting employee morale, increasing tension and potentially leading to complaints of sex discrimination. In a recent case, the Employment Appeal Tribunal (EAT) confirmed that it is acceptable for an employer to have a policy with different dress code requirements for each gender; but is there a catch? Yes - this case reminds us that the policy must be gender neutral i.e. the code must be equally balanced between the sexes and justified by reference to current standards of conventional dress and the particular needs of the profession in question. Are women undergoing IVF treatment protected under the Sex Discrimination Act? There is no question that a woman who becomes pregnant as a result of IVF treatment is entitled not to be discriminated against on the grounds of her pregnancy, but what is the position of a woman who is undergoing IVF treatment but is yet to become pregnant? Should employers treat her absence differently to non-pregnancy related absences to prevent any claim for sex discrimination? In a recent case, the EAT confirmed that IVF is a form of medical treatment and therefore should be treated in the same way as any other forms of sickness absence, except during a short period of time prior to the transfer of the fertilized egg to the woman. During this short period, the woman is treated as if she were pregnant under the Sex Discrimination Act. Of course, in practice an employer is unlikely to know when that period might occur so caution is necessary when dealing with employees undergoing IVF treatment. Obviously this is a very sensitive and personal matter where sympathetic yet effective communication is particularly important. Employers' duty to carry out risk assessments for pregnant workers In a recent case, the EAT ruled that an employer is only under a duty to conduct a risk assessment for pregnant workers when the employee notifies the company that she is pregnant, where her work involves a risk of harm or danger to the health and safety of either the pregnant worker or her baby, or where a risk arises from processes, working conditions or chemical or biological agents in the workplace. Any failure by the employer to carry out a risk assessment where the above pre-conditions are met will amount to discrimination regardless of whether the pregnant worker suffered any detriment as a result of the employer's failure to undertake the risk assessment. Accordingly, employers are advised to carry out risk assessments whenever they are notified of a pregnancy to avoid arguments as to whether the above conditions have been satisfied. Chain of illnesses and disability discrimination A person is defined as disabled under the Disability Discrimination Act (DDA) if he or she has a physical or mental impairment, which has a substantial and long-term (i.e. lasting or likely to last at least 12 months) effect on his or her ability to carry out normal day-to-day activities. In determining whether the effects of an impairment are long-term, the EAT has ruled that the Tribunal may aggregate different forms of illnesses where the subsequent illness develops from the original impairment. For example, an employee who suffers back pain for 6 months which develops into a secondary leg pain syndrome for a further 8 months could potentially be defined as disabled for the purpose of the DDA. Employers should therefore exercise caution where an employee's current illness may be associated with previous illnesses. Where an employer does not know if the illnesses are connected it will usually be appropriate to seek medical evidence. Enforceability of compromise agreements Can the Tribunal decide whether a compromise agreement is unenforceable due to misrepresentation? Yes. In a recent case, where an employee signed a compromise agreement only a few days before her employer entered into a creditors voluntary liquidation, the EAT held that the Employment Tribunal had jurisdiction not only to ensure that the agreement was compliant with legislation (i.e. in writing and signed after the benefit of independent advice) but also to ensure that the agreement was valid. If not, the Tribunal can set aside the agreement on grounds of economic duress. Decrease in compensatory award for unfair dismissal Employers will be pleased to hear that the maximum compensatory award for unfair dismissal will decrease from £66,200 to £65,300 from 1 February 2010. No change to the maximum weekly wage Following the increase in October 2009, there will not be a change to the maximum limit on a week's pay used to calculate statutory redundancy payments and basic unfair dismissal awards. Therefore it will remain at £380 until February 2011. The year ahead: 2010 legislative changes Fit note rather than sick note - Spring 2010 The Government intends to replace GP sick notes with new "fit notes" this spring to help employers establish whether an employee is fit to work and to assess whether adjustments such as a phased return to work, workplace adaptations or reduced hours would be appropriate. Financial Services Bill - Spring 2010 The much publicised Financial Services Bill will come into effect in 2010. The Bill contains provisions to regulate bankers' pay and bonuses and will give the Financial Services Authority the power to prohibit specified types of remuneration in the interest of securing effective risk management and/or compliance with international standards, to "tear up" bankers' contracts if they breach such prohibitions and provide for clawbacks of payments made under void terms. How strong the final wording will be remains to be seen. Transfer of maternity leave - mid 2010 The Government intends to allow mothers to transfer up to six months of their statutory maternity leave (and three months statutory maternity pay) to fathers provided the mother returns to work. If accepted, the scheme will be effective for parents of children due on or after 3 April 2011. The rules will come into force on 6 April 2010. Equality Bill - October 2010 October 2010 will see the introduction of the Equality Bill. The Bill will replace all the existing strands of discrimination legislation (i.e. sex, race, disability, marriage and civil partnership, sexual orientation, religion or belief, pregnancy and maternity, gender reassignment and age discrimination) with one Act. Under the provisions of the Bill, employers will be allowed (although not required) to take under-representation of a minority group into account when selecting between two equally qualified candidates for promotion or a new position. Among other things, the Bill will widen the definition of discrimination and harassment based on perception and association to codify case law so that a person who is harassed because of another's disability (e.g. because of that person's child's disability) or because they are wrongly perceived to be gay, for example, would have a claim. The Bill will also introduce the new concept of multiple discrimination claims, i.e. where an employee considers that they have been discriminated against on the basis of a combination of two characteristics (e.g. a black woman has been treated unfavourably where a white woman or a black man would not have been discriminated against). Default retirement age In our October 2009 bulletin we advised that the Government has brought forward its review of the default retirement age (i.e. allowing employers to forcefully retire employees at 65) to 2010 rather than 2011 as originally planned. There is a strong likelihood that the Government will increase the default retirement age or even remove it altogether in the coming year although the current level of young unemployed people may delay any increase. Further ahead: 2012 Employers' new pension duty From October 2012 employers will be required automatically to enroll workers into a qualifying pension scheme and make minimum contributions of 3% towards the pension scheme or a National Employment Savings Trust (NEST). Although auto-enrolment comes into effect from October 2012, employers' own duties will be phased in over the following four years. National celebration for the Queen's Diamond Jubilee Employees will be pleased to hear that they will be entitled to an additional bank holiday in June 2012 to mark the Queen's Diamond Jubilee. The Government plans to move the late May bank holiday to Monday 4 June and add an extra bank holiday on Tuesday 5 June 2012.
The Government intends to replace GP sick notes with new "fit notes" this spring to help employers establish whether an employee is fit to work and to assess whether adjustments such as a phased return to work, workplace adaptations or reduced hours would be appropriate.
The much publicised Financial Services Bill will come into effect in 2010. The Bill contains provisions to regulate bankers' pay and bonuses and will give the Financial Services Authority the power to prohibit specified types of remuneration in the interest of securing effective risk management and/or compliance with international standards, to "tear up" bankers' contracts if they breach such prohibitions and provide for clawbacks of payments made under void terms. How strong the final wording will be remains to be seen.
The Government intends to allow mothers to transfer up to six months of their statutory maternity leave (and three months statutory maternity pay) to fathers provided the mother returns to work. If accepted, the scheme will be effective for parents of children due on or after 3 April 2011. The rules will come into force on 6 April 2010.
October 2010 will see the introduction of the Equality Bill. The Bill will replace all the existing strands of discrimination legislation (i.e. sex, race, disability, marriage and civil partnership, sexual orientation, religion or belief, pregnancy and maternity, gender reassignment and age discrimination) with one Act. Under the provisions of the Bill, employers will be allowed (although not required) to take under-representation of a minority group into account when selecting between two equally qualified candidates for promotion or a new position. Among other things, the Bill will widen the definition of discrimination and harassment based on perception and association to codify case law so that a person who is harassed because of another's disability (e.g. because of that person's child's disability) or because they are wrongly perceived to be gay, for example, would have a claim. The Bill will also introduce the new concept of multiple discrimination claims, i.e. where an employee considers that they have been discriminated against on the basis of a combination of two characteristics (e.g. a black woman has been treated unfavourably where a white woman or a black man would not have been discriminated against).
In our October 2009 bulletin we advised that the Government has brought forward its review of the default retirement age (i.e. allowing employers to forcefully retire employees at 65) to 2010 rather than 2011 as originally planned. There is a strong likelihood that the Government will increase the default retirement age or even remove it altogether in the coming year although the current level of young unemployed people may delay any increase.
Further ahead: 2012
From October 2012 employers will be required automatically to enroll workers into a qualifying pension scheme and make minimum contributions of 3% towards the pension scheme or a National Employment Savings Trust (NEST). Although auto-enrolment comes into effect from October 2012, employers' own duties will be phased in over the following four years.
Employees will be pleased to hear that they will be entitled to an additional bank holiday in June 2012 to mark the Queen's Diamond Jubilee. The Government plans to move the late May bank holiday to Monday 4 June and add an extra bank holiday on Tuesday 5 June 2012.