Wright, Johnston & Mackenzie Solicitors

Risk assessments in relation to pregnant workers

In O’Neill v Buckinghamshire County Council, the Employment Appeal Tribunal (EAT) held that if all the following conditions are met, an employer is under a duty to conduct a risk assessment in relation to a pregnant employee:

• The employee notifies the employer in writing that she is pregnant;
• The work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby, and
• The risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

When carrying out the risk assessment, the employer is not required to have a meeting with the employee, but must provide her with comprehensive and relevant information on the identified risks to her health and safety.

Practical Implications: If all the above conditions exist in relation to an employee, a risk assessment must be carried out. Failure to do so could result in a claim of sex discrimination.  We can assist you through the minefield of legislation covering pregnant employees, including risk assessments.

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New Rates of Pay Announced for Financial Year 2010-2011

The Government has announced the new rates for Statutory Maternity Pay, Statutory Adoption Pay, Maternity Allowance and Statutory Sick Pay for the next financial year:

Statutory Maternity Pay, Statutory Adoption Pay and Maternity Allowance will increase from £123.06 to £124.88 per week

Statutory Sick Pay will remain at £79.15 per week

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Equal Pay – New Transparency Rules

The Equality Bill 2009, which is currently working its way through Parliament, aims to streamline and consolidate the law on equality.

A number of new measures are being considered on equal pay. Currently, organisations do not have to publish rates of pay, which may disclose differences between male and female pay. The Bill contains proposals that will allow the Government to require large companies and public bodies to do this.

The Bill will also prevent employers from banning their staff from disclosing details of their pay to each other.  Employees will not be required to share these details, but they can if they choose to do so.

Practical Implications: Increased transparency may well lead to an increase in the number of equal pay challenges. Employers must ensure their pay structures are equitable and justifiable.

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Age Discrimination – it can be legitimate

European Union legislation allows employers to treat people differently provided that the objective of the treatment is legitimate and proportionate.

In full, the legislation “provides that a difference of treatment by an employer which is based on age (or religion or belief, disability or sexual orientation) shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

A recent European Court of Justice (ECJ) case tested this issue. In Wolf v Stadt Frankfurt am Main, Mr Wolf applied to work as a fireman in the Federal State of Hesse, Germany.

Due to the nature of the job he applied for, his application was not considered. Local regulations restricted recruitment to intermediate career posts, which involved fire fighting on the ground and rescuing people, to those under 30 years old. Mr Wolf was over 30 at the time of his job application.

The ECJ held that the regulations were appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service, and that they did not going beyond what was necessary to achieve that objective. Therefore, the regulations were held not to be discriminatory.

Practical Implications: In some situations, different treatment on the ground of age can be legitimate. However employers who have differing treatments should ensure that their grounds for different treatment are robust and will stand up at a Tribunal.

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Disability – what constitutes a ‘Long Term’ Effect

In terms of disability discrimination legislation, a person has a disability if he or she has a physical or mental impairment, which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. If the impairment has lasted, or is likely to last, 12 months, it is regarded as long-term. 

In the case of Patel v Oldham Metropolitan Borough Council, the EAT held that in determining whether the effects of an impairment are long-term, tribunals can look at effects which have developed, or are likely to develop, as a consequence of an earlier illness or impairment.

In this case, the claimant’s back pain developed into secondary leg pain. The original Employment Tribunal held that the effect of these two impairments could not be aggregated in order to reach the conclusion that they were long term - i.e. that they had lasted, or would be likely to last, more than 12 months. The EAT dismissed this approach, and held that the effects could be aggregated, if one had developed as a result of the other.

Practical Implications: Impairments or illnesses cannot be looked at in isolation. Any knock-on effects also need to be taken into account when considering whether a person is, or has become, disabled in terms of current legislation.

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Employment Tribunal Awards

For dismissals which take place after 1st February 2010, there will be new limits on some Employment Tribunal awards.

The new limits are:

The limit on the compensatory award for unfair dismissal which, due to a reduction in the Retail Price Index, will decrease from £66,200 to £65,300; and

The maximum amount of a week’s pay for the purposes of calculating statutory redundancy payments and the basic award in unfair dismissal claims, which will remain unchanged at £380. This follows an interim increase on 1st October last year.

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Time Off for Training – legal right to request time off for training for some employees

From April 2010, the Apprenticeships, Children and Learning Act 2009 will give some employees a legal right to request time off to undertake training to improve their performance and the performance of the employer’s business.

Initially, this will only apply to employees of businesses which employ 250 or more staff, and who have worked for at least 26 weeks. The right will be extended to cover employees in businesses of all sizes in April 2011.

Similar processes to those used when considering requests for flexible working should be used by employers who will be expected to consider all valid training requests seriously. As with flexible working requests, employers will be able to decline requests where they have a sound business reason to do so, or where they do not believe that the training the employee has requested will help the employer to improve the performance of their business.

The new right does not require that, where they agree to an employee’s request, employers should pay for the training, although they may choose to do so.

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Dress Codes – Do they Discriminate?

In the case of Dansie v Metropolitan Police, the EAT held that a trainee policeman who had been required to cut his shoulder length hair, in accordance with the Force’s dress code, had not suffered sexual discrimination.

The EAT noted that the correct legal test in determining whether a dress code is sexually discriminatory or not is whether, considering contemporary standards and conventions, as well as the specific needs of the profession in question, the employer’s dress code as a whole, was asking its employees to display an equivalent level of smartness between the sexes.

It was held that the Met’s dress code was, overall, equally balanced between the sexes, so they had not discriminated against Mr Dansie by requiring him to cut his hair.

It did not matter that a female employee would not, in similar circumstances, have been required to cut her hair, provided that the overall dress code was equally balanced between the sexes.

Practical Implications: As long as the overall balance is correct, a dress code can place different requirements on male and female employees.

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