Employment Briefing September 2015
Published byMartin Stephen
- Free Shared Parental Leave Seminars
- Agency Workers' Rights
- Closing the Gender Gap
- Hard Lessons in Social Media
- Indirect Discrimination
Welcome to September 2015's Employment Briefing.
As always, we're delighted to hear from you on the articles in our Employment Briefing, or if you have any questions for the team. Please contact Martin Stephen directly, or give us a call on 0141 248 3434.
Free Shared Parental Leave Seminars
Our widely recognised Employment team is presenting one of our regular series of seminars designed to offer a practical perspective on some employment issues. In October and November, we look at the implications of the new rules on Shared Parental Leave.
We are offering these seminars in Glasgow, Edinburgh and Inverness. Please click the following links for booking details:-
Agency Workers' Rights
Are agency workers entitled to equal status with comparable permanent when being considered for a job vacancy? No, says EAT in the case Coles v Ministry of Defence.
Mr Coles was an agency worker for the Ministry of Defence (MoD). Following a period of restructuring, the MoD filled Mr Coles’ position without offering him an interview for the job. Mr Coles maintained that whilst he had been informed of the vacancy, the failure to allow him to apply for the post, and/or to get preference ahead of permanent employees breached his right to 'equal treatment' in relation to working and employment conditions under the Temporary Agency Worker Directive. It was held that under the Agency Workers Regulations 2010, an agency worker has the right to be informed of vacant posts in the permanent workforce. Specifically, the agency worker did not have any preference over existing direct employees, nor did he have a guarantee to an interview for the permanent position.
WJM’s Employment Team advises: “This case serves to illustrate the extent of the protection afforded to agency workers. Whilst the Agency Worker Regulations give agency workers equivalent rights to comparable employees as regards working hours and pay, the principle of equal treatment cannot be interpreted as giving agency workers equal status with permanent employees. Agency workers should not expect to have protection against losing their role in the event of redundancies.”
Closing the Gender Gap
Earlier this year the Government announced its commitment eliminate the ongoing discrepancy in pay between men and women by introducing regulations that require private and voluntary sector businesses with at least 250 employees to publish details of their gender pay gap. What then are the implications for employers?
The consultation seeks to introduce compulsory reporting rights into gender pay following the introduction of the Think, Act Report Scheme which is a voluntary campaign to which organisations can sign up and report on how their business promotes gender equality. Under the new regulations following the consultation, such employers would be required to publish gender pay information under Section 78 of the Equality Act 2010 which contains powers for the Government to make regulations requiring private and third sector employers to publish information relating to differences between the pay of their female and male workers.
The key questions which are being asked in the consultation include the type of information that would be required to be provided by employers, how frequently such information would require to be updated and whether the threshold of 250 employees is appropriate. The consultation ends on the 6th September 2015 and the new regulations are expected to take effect by March 2016, with the first reports unlikely to be published until 2017.
WJM’s Employment Team advises: “Review all current pay practices and rates to identify and understand any differentials that may exist between men and women. Consider gender pay gaps that exist on a departmental, geographical, or functional level and compare these with the composition of the workforce. Consider whether changes should be made to information technology systems and administrative processes to improve gender pay reporting capabilities.”
Hard Lessons in Social Media
Is it fair to dismiss an employee who has made disparaging comments on his Facebook page about his employer? Yes, says EAT in the case British Waterways v Smith.
Mr Smith, who was employed by British Waterways made disparaging and offensive comments on his Facebook page regarding his managers and workplace including two posts boasting out his consumption of alcohol while on standby. Mr Smith was summarily dismissed on the grounds of gross misconduct as his comments had undermined the trust and confidence of his employers. On Appeal, the EAT held that this dismissal was fair, despite the delay in taking steps to dismiss Smith. There was some debate in this case over whether British Waterways could be identified from the Facebook posting. One of the key facts relied upon by the employer was that it had a social media policy prohibiting this type of behaviour.
WJM’s Employment Team advises: “This is a cautionary reminder of the need for employers to have a social media policy and that it is kept up to date.”
Indirect Discrimination
The law regarding indirect discrimination has been substantially amended due to a recent landmark decision by the European Court of Justice which could significantly widen the scope for raising actions in indirect discrimination cases.
Indirect discrimination occurs where an apparently neutral practice has a disadvantageous effect on a person because of particular protected characteristic such as sex, race, age, disability or religious belief. Under the Equality Act 2010, an indirect discrimination claim is only possible if the claimant has the same characteristic as the protected group. However, the recent case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias appears to remove this requirement, so that individuals who suffer alongside a disadvantaged group without sharing the relevant protected characteristic now fall within the scope of indirect discrimination.
The CHEZ case concerned an electricity supplier which place electricity meters at an inaccessible height id a particular district of a Bulgarian town. The ostensible purpose was to prevent crime. The district was populated mainly by people of Roma ethnic origin. The Claimant Ms Nikolova was a woman of non-Roma ethnic origin who ran a shop in the district. She brought an indirect discrimination claim asserting that she had suffered the same disadvantage as her Roma neighbours.
The concept of indirect discrimination in the UK is implemented by section 19 of the Equality Act, which clearly requires the claimant to share the relevant protected characteristic. It explicitly rules out a claim of indirect discrimination by way of collateral damage. Employment tribunals are required to interpret UK statutes consistent with the relevant EU directive. It is only a matter of time before we see a claim that the Equality Act should be interpreted purposefully in line with the ruling in this case so as to remove the requirement for the claimant to have the relevant protected characteristic.
WJM’s Employment Team advises: “Pending further clarification from case law, this case potentially marks significant extension of the scope of indirect discrimination and suggests a need for heightened scrutiny of any practice which might be alleged to operate to the disadvantage of employees with a particular characteristic as policies, rules and practices may be more vulnerable to legal challenge. Review all practices in your workplace. Try and make sure they don’t indirectly discriminate, or make sure you can justify the practice and get good advice.”
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at September 2015. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 319 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.
