Employment Review - May 2008
This month’s Review, edited by Sarah Gonem (pictured below), focuses on new legislation and changes that came in on 6 April 2008, including changes to the Sex Discrimination Act 1975, the Information and Consultation with Employees Regulations 2004 and the new Corporate Manslaughter and Corporate Homicide Act 2007.
Sex discrimination claims made easier
Key new legislation from 6 April 2008
Employment Judge Mediation
Increase in Statutory Weekly Rates
Recent work
Introducing Hanif Lula
Meet the Employment Team
Sex discrimination claims made easier
A number of changes to the Sex Discrimination Act 1975 (SDA) came into force on 6 April 2008, making it easier for employees to bring claims of sex discrimination or harassment. The key changes are:
• Harassment by third parties is now unlawful
• Greater scope for claims of sex harassment
• Wider definition of pregnancy-related discrimination
• New contractual rights during Additional Maternity Leave
• Bonus scheme changes
Harassment by third parties is unlawful
When a third party (such as a customer, supplier or independent contractor) carries out an act of harassment against an employee, many employers were left uncertain as to their obligations towards the employee.
Previous case law had indicated that an employer would not normally be liable for the acts of harassment in these circumstances. However, the Government has now changed this so that an employer can be held liable for knowingly failing to protect an employee from harassment by third parties.
The employer would incur liability if:
* The harassment occurred on at least two previous occasions (but not necessarily by the same third party)
* The employer knew about the harassment
* The employer did not take all reasonably practicable steps to prevent further harassment
This is intended to ensure that employers are not liable for one-off incidents or harassment of which they are not aware, or which is beyond their control.
Employers need to be aware of this change where their employees have regular contact with third parties, such as in call centres or shops. Where there are complaints of harassment, employers may need to take action such as:
* Preventing a particular customer, against whom there are complaints of harassment, from entering the premises
* Displaying anti-harassment posters in customer areas
* Moving an employee to another role or location, with her agreement, to protect her from further harassment
Sex harassment
There are two different types of sex harassment which are unlawful under the SDA, classified as sex harassment and sexual harassment.
Sex harassment occurs when a person harasses another for a reason relating to gender, such as a male manager saying that all women are ‘bimbos’. Sexual harassment relates to offensive conduct of a sexual nature.
Before 6 April 2008, sex harassment was unwanted conduct ‘on the ground of’ a woman’s (or man’s) sex. This has now been changed so that the harassment need only be ‘related to sex’.
This wider definition will now cover conduct such as a male colleague deliberately placing work equipment on a high shelf which a female colleague cannot reach. Perhaps he did this because he disliked the female colleague, and not because he deliberately intended to harass her because she is a woman, but this would still be classed as unwanted conduct ‘related to sex’ and could therefore potentially be considered sex harassment.
The wider definition would also now make it easier for witnesses of sex harassment to make claims even if they are not direct subjects of the acts in question but nonetheless feel harassed by it. This is because the definition now states that the unwanted conduct can relate to the complainant’s sex or “that of another person.”
Employers need to be aware of these changes so that they can spot (and take steps to prevent) any potential sex harassment in the workplace.
Pregnancy-related discrimination
Before 6 April 2008, for an employee to claim pregnancy-related discrimination under section 3A of the SDA, she needed to show that she had been treated less favourably than she would have been treated had she not become pregnant. Section 3A(1)(a) used to read:
“… a person discriminates against a woman if at a time in a protected period, and on the ground of a woman’s pregnancy, the person treats her less favourably than he would treat her had she not become pregnant.”
The Government has now amended the SDA to remove the italicised words above. This widens the pregnant employee’s entitlement to bring a claim, as it now includes treatment which she would have received even if she was not pregnant, but is now less favourable treatment because she is pregnant. An example is where a pregnant employee is required to continue with her previous workload that included heavy lifting, which she can no longer do.
New Contractual Rights during AML
There is currently a distinction between the contractual rights available to an employee during Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).
During OML an employee continues to enjoy all her normal contractual non-pay benefits, such as:
• Contractual annual leave entitlement over and above the statutory minimum
• Company car
• Gym membership
• Mobile telephone
• Health insurance
An employee does not currently have a statutory right to the same non-pay benefits during AML. However, the law changed as of 6 April 2008 so that all women with an expected week of childbirth on or after 5 October 2008 will be entitled to the same contractual non-pay benefits during AML as OML.
This could potentially have significant consequences on employers who currently make the distinction between OML and AML.
• Employers will need to update their maternity policies in time for the 5 October 2008 changes
• Employees with an expected week of childbirth beginning on or after 5 October 2008 will be entitled to their contractual non-pay benefits during both OML and AML
Bonus Scheme Changes
The tricky question remains as to whether an employee on maternity leave gets the benefit of a bonus which she would have received if she had not been on maternity leave.
The 6 April 2008 changes do confirm, however, that the employee’s absence on the two week compulsory maternity leave period must be included in any calculation for a discretionary bonus as though she had been at work and working normally. This also only applies to women with an expected week of childbirth beginning on or after 5 October 2008.
Key new legislation from 6 April 2008
Corporate Manslaughter and Corporate Homicide Act 2007
This creates a new offence of corporate manslaughter, which an organisation can be liable for, if the way in which its activities are managed or organised causes a person’s death and amounts to a gross breach of a relevant duty of care by the organisation to the deceased.
A relevant duty of care includes duties owed:
• by an employer to its employees
• as an occupier of premises
• in relation to the supply of goods and services
• in relation to construction or maintenance operations
• in relation to any other commercial activity
• in relation to the use or keeping of any plant, vehicle or thing
• to a person for whose safety the organisation is responsible (this is limited to certain situations such as police custody)
Information and Consultation of Employees Regulations 2004
SI 2004/3426
The Information and Consultation of Employees Regulations (”ICE Regulations”) have been extended to apply to undertakings with 50 or more employees.
The ICE Regulations set out minimum rights for employees to be informed and consulted with on important workplace issues such as “decisions likely to lead to substantial changes in work organisation or in contractual relations.”
The ICE Regulations do not enforce information and consultation procedures, but give employees the right to request such procedures being put in place. An employee request is not a valid request under the ICE Regulations unless it is made by at least 10% of the workforce, either in a single request or cumulatively as a result of a number of different requests.
On receipt of a valid request, the employer must initiate negotiations to agree an information and consultation framework.
During March 2008 we were involved in two mediations conducted by Employment Judges as part of a pilot scheme in the London Employment Tribunals in an effort to reduce Employment Tribunal litigation.
The cases had been listed for three and four day hearings, but were resolved instead in a half-day mediation session, saving significant time and money.
The key benefit of mediation conducted by an Employment Judge, rather than an outside mediator, is that the parties see first-hand how a Tribunal would view the issues if the matter continued to litigation. This gives parties a chance to test their case before a Judge, but with more control over the negotiated resolution of the claim.
The Employment Judge Mediation process was an effective way of resolving these two complex cases at minimum cost. Therefore, we would advise clients to consider requesting such mediation at CMDs where claims are based within the London Employment Tribunals.
Increase in Statutory Weekly Rates
From 6 April 2008, statutory maternity, paternity and adoption pay increased from £112.75 to £117.18 per week, and statutory sick pay increased from £72.55 to £75.40 per week.
Recent work
• Successfully defended an employer in a multi day disability discrimination claim involving direct discrimination, disability related discrimination and failure to make reasonable adjustments
• Advising a number of clients in relation to taking action against former employees acting in breach of post-termination restrictions
• Advising clients in relation to employment status of casual or atypical workers
Hanif Lula joined Freeth Cartwright in April this year from a niche London firm. He is a qualified employment solicitor and Level 2 Immigration Case Worker. Hanif advises on the full range of immigration issues as well as providing representation and advice in relation to all employment issues and disputes.
Recent work includes assisting a Post-Graduate Deanery with a major round of recruitment involving over 50,000 applicants; advising a Strategic Health Authority in relation to Highly Skilled Migrant Programme/Tier 1 issues; and advising on visas issued by the government of the Isle of Man.
Hanif is based in our Manchester office and can be contacted on +44 (0)845 634 2547
or hanif.lula@freethcartwright.co.uk
We now have 14 lawyers in our Employment Team, including 7 partners and 7 solicitors, over our range of offices:
NottinghamDavid Potter, Partner & Head of Employment
+44 (0)115 936 9389
david.potter@freethcartwright.co.ukRichard Bullock, Partner
+44 (0)115 936 9396
richard.bullock@freethcartwright.co.uk
Joanne Kay, Partner
+44 (0)115 936 9383
joanne.kay@freethcartwright.co.uk
Matt McBride, Senior Associate
+44 (0)115 936 9405
matthew.mcbride@freethcartwright.co.uk
Victoria Lang, Associate
+44 (0)115 934 3957
victoria.lang@freethcartwright.co.uk
Sarah Gonem, Solicitor
+44 (0)115 935 0622
sarah.gonem@freethcartwright.co.uk
BirminghamVanessa DiCuffa, Senior Associate
+44 (0)845 634 2584
vanessa.dicuffa@freethcartwright.co.uk LeicesterJulian Middleton, Employment Partner
& Managing Partner of Leicester Office
+44 (0)116 248 1115
julian.middleton@freethcartwright.co.ukRena Magdani, Partner
+44 (0)116 248 1140
rena.magdani@freethcartwright.co.uk
Mike Cummins, Partner
+44 (0)116 248 1172
mike.cummins@freethcartwright.co.uk
Kay Greig, Solicitor
+44 (0)116 248 1171
kay.greig@freethcartwright.co.uk
ManchesterPatricia Jones, Partner
+44 (0)845 634 2561
pat.jones@freethcartwright.co.ukMichael Wright, Senior Solicitor
+44 (0)845 634 2563
michael.wright@freethcartwright.co.uk
Hanif Lula, Solicitor
+44 (0)845 634 2547
hanif.lula@freethcartwright.co.uk