19 March 2007

NEWS

Call to Equalise National Minimum Wage for Over 18s

The Employer's Forum on Age has claimed that the current disparity between the National Minimum Wage (NMW) for younger workers and adults constitutes age discrimination.  Read more

Employers "Throwing Money" at Recruitment Without Evaluating Investment

Research by Cranfield School of Management has revealed that only 49 per cent of employers evaluate the success of individual recruitment processes, yet 84 per cent of organisations plan to maintain or increase recruitment expenditure in the next six months. Read more

Black and Asian Women "Missing" From Almost One Third of Workplaces

A two-year investigation by the Equal Opportunities Commission (EOC) has surveyed workplaces in areas where the proportion of Black and Asian women participating in the workforce is equal to or greater than the British average.  It found that 31 per cent of the workplaces do not employ any Black or Asian women at all and Black and Asian women are under-represented in 55 per cent of the workplaces.  Read more

European Council Will Reduce Administrative Burdens

The EU heads of government have set themselves a target to reduce administrative burdens by 25 per cent by 2012 at a meeting in Brussels.  The reduction will cover 13 policy areas which currently impose the largest administrative burdens on business including employment, company law and health and safety.  Read more

Increasing Number of Apprentices Complete Apprenticeships

Despite constant criticism of the government for failing to bring back apprenticeships, figures from the Learning and Skills Council (LSC) show that there are approximately 270,000 apprentices on training programmes across the whole range of British Industry, with an increasing number completing their training.  Read more

Scottish EOC Distribute Anti-Discrimination Leaflets to Expectant Mothers

The Scottish Equal Opportunities Commission (EOC) is providing pregnant women with copies of a DTI leaflet on employees' and employers' mutual rights and responsibilities in a move to reduce pregnancy-related discrimination in the workplace.  Read more

LEGISLATION

Employment Retention Bill

The Employment Retention Bill had its first reading in the House of Common on 13 March 2007 and is due to have its second reading on 18 May. The Bill, which is a Private Members' Bill, makes provision for a statutory right to disability leave for newly disabled people and people whose existing impairments change. 

Read more

CASES

Sex Discrimination Laws Inadequate

The High Court has held that the UK's sex discrimination laws do not adequately implement the Equal Treatment Directive.  Read more

Light Shed on Application of Statutory Grievance Procedures

The EAT has held that the tribunal was wrong to conclude that the statutory grievance procedure did not apply when an employee resigned during the course of disciplinary proceedings.  Read more

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FEEDBACK

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NEWS

Call to Equalise National Minimum Wage for Over 18s

The Employer's Forum on Age has claimed that the current disparity between the National Minimum Wage (NMW) for younger workers and adults constitutes age discrimination. 

As reported in our Briefing last week, the Government has announced the latest increases in the NMW which will take effect from October.  However, the increases continue to differentiate between workers who are aged over 21 and those under 21.

The Director of The Employer's Forum on Age (EFA) said: "We are frustrated by the refusal to address the fact that under the current bands, 18-21 year olds are paid less, simply because of their age and irrespective of their capabilities or responsibilities.  We believe this constitutes age discrimination and is sending out completely the wrong message to employers about the consequence of making decisions based on age in the workplace.  While we support the existence of the youth rate for 16-17 year olds due to the statutory restrictions on the work they can undertake, a development rate for inexperienced workers should not be based on age and should only be applied for a short term."

"We are calling on the Government to equalise all minimum wage standards for those over 18.  Age discrimination in employment became illegal on 1 October last year – the current argument from the Government that employers might potentially avoid taking on younger workers if they had to pay them the same amount as workers over 21 is simply reinforcing the discriminatory practices that the legislation was designed to eradicate."

The EFA's claims that the current NMW bands constitute age discrimination are similar to the warning issued by the British Chambers of Commerce before the Age Regulations came into force.  A spokesman for the BCC, Olly Scott, said: "The Government's own minimum wage law discriminates against people on the grounds of age.  If this were the subject of a legal challenge, based on the new age law, the government may put the minimum wage rates of the under 21s up to the same level as the over 21s." 

The EFA is currently lobbying the Government on the issue of the NMW bands.  An Early Day Motion, which draws attention to the issue, has been tabled and currently has 88 signatures representing cross-party support.  (Workplace Law, 13 March 2007)

To view our earlier Briefing on the NMW increases effective from October 2007 click here.  Back

Employers "Throwing Money" at Recruitment Without Evaluating Investment

Research by Cranfield School of Management has revealed that only 49 per cent of employers evaluate the success of individual recruitment processes, yet 84 per cent of organisations plan to maintain or increase recruitment expenditure in the next six months. 

A research fellow at Cranfield, Emma Parry, said: "These results paint a worrying picture of organisations throwing money at recruitment without any idea if they are receiving a suitable return on their investment.  This suggests that when recruitment is unsuccessful, recruiters just spend more and more on the same processes, rather than systematically assessing the success, or failure, of the methods they are using and making changes accordingly."

The research was conducted for the latest Recruitment Confidence Index and involved 557 organisations.  The results indicated that 37 per cent of organisations monitored the number of short listed applicants to evaluate their recruitment methods while 35 per cent looked to the time taken to fill a vacancy.  (Personnel Today, 14 March 2007)  Back

Black and Asian Women "Missing" From Almost One Third of Workplaces

A two-year investigation by the Equal Opportunities Commission (EOC) has surveyed workplaces in areas where the proportion of Black and Asian women participating in the workforce is equal to or greater than the British average.  It found that 31 per cent of the workplaces do not employ any Black or Asian women at all and Black and Asian women are under-represented in 55 per cent of the workplaces. 

The investigation, "Moving on Up: Ethnic Minority Women at Work" revealed that Black and Asian women are finding it more difficult to get jobs, progress within them and are more likely to be segregated into certain types of work, despite leaving school with the same career aspirations as white girls and similar or better qualifications than white boys.

Jenny Watson, Chair of the EOC, said: "Young Pakistani, Bangladeshi and Black Caribbean women are ambitious and equipped for work.  But they are still suffering even greater penalties at work than white women.  Time after time women told us about the 'unwritten rules' in the workplace, hidden barriers that prevent them from realising these ambitions.  Without tackling these unwritten rules, change will never come."

The EOC is urging Britain's employers and policy makers to develop "cultural intelligence" in line with the diversity of modern Britain. 

The Communities Secretary, Ruth Kelly, welcomed the report.  She said: "For Black and Asian women, the workplace is a complex story of ambition, skills and achievement on one hand and missed opportunity on the other.  Not only does this mean disappointment for individuals, it makes us less competitive.  That's why the Government is creating a framework to ensure everyone has the chance to succeed.  There is evidence the opportunity gap is closing but we, and employers, must go further and faster.  That is why we are widening career options in schools, offering tailored support and training, increasing childcare support and encouraging more flexible working practices.  No doors should be shut to women – and men – of talent, regardless of ethnicity or faith."

As part of the report the EOC suggested 10 solutions to help transform the workplace so that Black and Asian women are given the opportunity to realise their ambitions and potential.  They include:

• Finding out about and publishing the facts about the numbers of Black and Asian women working at an organisation and at what level;
• Using induction to demonstrate that diversity is valued by the company, and teaming up new employees with a mentor; and
• Providing information about the different religions and cultures reflected in the workplace and among customers.
  

The CBI's Deputy Director-General, John Cridland, said: "Employers will welcome the examples of good practice highlighted by the EOC's investigation, on which others can draw.  As the report says, employers are keen to employ more women from ethnic minorities but better guidance is needed to support them.  The EOC's call for better careers advice is also to be welcomed – this is something the CBI has repeatedly pressed Government on."  (Equal Opportunities Commission Press Release, 15 March 2007)  Back

European Council Will Reduce Administrative Burdens

The EU heads of government have set themselves a target to reduce administrative burdens by 25 per cent by 2012 at a meeting in Brussels.  The reduction will cover 13 policy areas which currently impose the largest administrative burdens on business including employment, company law and health and safety.

As reported in our Briefing dated 15 December 2006, the DTI has already published plans to cut the administrative burdens on businesses which will lead to a saving of £700 million for British businesses.  This new European target could save European businesses a total of £100 billion.

The minister for the Cabinet Office, Hilary Armstrong, views the move as a crucial step towards improving the competitiveness of European business.  She said: "Red tape is both costly and irritating for business, particularly SMEs.  In a globalised economy, we have to get rid of unnecessary bureaucracy if we are to compete successfully." 

The commission is expected to make firm proposals to reduce administrative burdens at the meeting of the European Council in March 2009.  (Personnel Today, 14 March 2007)

To view our earlier Briefing click here.  Back

Increasing Number of Apprentices Complete Apprenticeships

Despite constant criticism of the government for failing to bring back apprenticeships, figures from the Learning and Skills Council (LSC) show that there are approximately 270,000 apprentices on training programmes across the whole range of British Industry, with an increasing number completing their training.

The figures from the LSC show that, in the first half of this academic year, just under 60 per cent of apprentices competed their training successfully.  This is an increase of 7 per cent on last year's peak of 53 per cent and is a dramatic improvement on the less than 25 per cent of apprentices who completed their apprenticeships when the LSC was launched in 2001/02. 

Sir John Cassells, who chaired the 2001 review into apprenticeships, said that the statistics are as good as in most advanced economies.

The director of work-based learning at the LSC, Stephen Gardner, said that the improvement in the statistics has been achieved as a result of: "hard work on the quality of the training programmes, and a lot of hard work with employers, so that they understand the value of apprenticeships."

Although a 100 per cent completion rate would be the ideal, Mr Gardner said: "you have got to recognise we are talking in quite a lot of cases of four-year programmes, and a lot happens in the lives of people between the ages of 16 and 20.  They start one course, then they decide they want to do something else." 

The current total of 270,000 means that Britain is over half way towards achieving the proposal contained in last year's Leitch report on skills to have 500,000 apprenticeships by 2020.  (The Guardian, 13 March 2007)  Back

Scottish EOC Distribute Anti-Discrimination Leaflets to Expectant Mothers

The Scottish Equal Opportunities Commission (EOC) is providing pregnant women with copies of a DTI leaflet on employees' and employers' mutual rights and responsibilities in a move to reduce pregnancy-related discrimination in the workplace.

The leaflet "UK Pregnancy and Work" was published by the DTI on 1 October 2006 on its website alongside revised guidance on the new maternity rights which apply women whose babies are due on or after 1 April 2007.  (PLC Employment)

For a copy of the DTI's Work and Pregnancy leaflet click here.  Back

LEGISLATION

Employment Retention Bill

The Employment Retention Bill had its first reading in the House of Common on 13 March 2007 and is due to have its second reading on 18 May. The Bill, which is a Private Members' Bill, makes provision for a statutory right to disability leave for newly disabled people and people whose existing impairments change.  Back

CASES

Sex Discrimination Laws Inadequate

The High Court has held that the UK's sex discrimination laws do not adequately implement the Equal Treatment Directive. 

In October 2005, amendments were made to the Sex Discrimination Act 1975 by the Employment Equality (Sex Discrimination) Regulations 2005.  As well as introducing express provisions outlawing harassment on grounds of sex and sexual harassment, the amendments also expressly outlawed discrimination on grounds of pregnancy/maternity leave and sort to clarify the circumstances in which a woman on ordinary and additional maternity leave might have a discrimination complaint.  The Equal Opportunities Commission argued that the amendments made did not properly implement the UK's obligations under the Equal Treatment Directive. 

The High Court agreed with the EOC in all but one respect and held that the legislation should be amended:-

• so that harassment "related to sex" is made unlawful - the current provision requiring that discrimination be "on grounds of sex" was held to be too narrow.  This is because it requires that the claimant's sex is the reason for the harassment, whereas the Directive merely requires that the harassment is related to sex.  So, for example, a woman in a relationship with her boss who is bullied by him because he becomes jealous when he saw her out with another man is unable to show harassment "on grounds of sex" (the conduct was on grounds of jealousy) but may be able to show harassment related to sex;
• so that a complaint of harassment can be made by a woman when the conduct complained of is directed at, and relates to the sex of, a third party – in circumstances where it violates her dignity or creates an intimating, hostile, degrading, humiliating or offensive environment for her;
• to make it clear that employers can be liable for harassment if they fail to take steps to prevent harassment by others, eg clients/suppliers;
• to remove the requirement for a comparator in cases of discrimination on grounds of pregnancy/maternity leave - the regulations provide for a comparison with the woman's situation had she not become pregnant/taken maternity leave and this is not permitted by EC law;
• to make it clear that a woman can bring a sex discrimination claim if deprived of non-contractual benefits (for example, a discretionary bonus) during the compulsory maternity leave period (the two week period immediately following the birth);
• to make it clear that the same rights to bring a sex discrimination claim apply during both ordinary and additional maternity leave - the amended SDA suggested that complaints of discrimination in respect of the additional maternity leave period could only be made on very limited grounds. 

The arguments in this case were not, on the whole, over what type of treatment amounted to unlawful discrimination under the Directive but instead over whether the UK legislation actually prohibited this treatment on its wording.  For example, the Women and Equality Unit (part of the DTI) recognises in a fact sheet on harassment that an employer may be liable under the harassment provisions of the SDA for acts of a third party, yet the wording of the legislation does not appear to allow for this. 

During the course of the hearing it was accepted by the EOC that if the harassment provisions in the SDA are unlawful then the equivalent provisions in other discrimination legislation will also be unlawfully formulated and will therefore need to be changed as well.  The government had until lunchtime on 16 March to inform the court and the Equal Opportunities Commission how it intends to remedy the situation.  It is not clear whether the government is required to say how it will deal with other discrimination legislation or whether the order relates solely to the SDA.

Equal Opportunities Commission v Secretary of State for Trade and Industry  Back

Light Shed on Application of Statutory Grievance Procedures

The EAT has held that the tribunal was wrong to conclude that the statutory grievance procedure did not apply when an employee resigned during the course of disciplinary proceedings.  

Ms Pinkus, an employee of the Crime Reduction Initiative (CRI), was the subject of disciplinary proceedings.  She resigned the day after a disciplinary meeting but prior to the conclusion of the disciplinary proceedings.  Some two months later she wrote to the head of Human Resources at CRI raising a grievance against the organisation's management, alleging that she had felt "victimised and forced to resign". In a further letter, she requested they go through the standard grievance procedure as she was alleging constructive dismissal.

Ms Pinkus submitted an unfair dismissal claim outside the primary three month time limit and the issue before the tribunal was whether the statutory grievance procedure applied – because if it did the time limit for bringing the claim was extended by a further three months meaning the claim was in time.

The view of the Chairman at the preliminary hearing was that the statutory grievance procedure did not apply.  Ms Pinkus had resigned before CRI could dismiss her and her grievance was that CRI had been "contemplating dismissing her".  As Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that "neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee" the statutory grievance procedure did not apply here. 

The EAT overturned the Chairman's decision.  Ms Pinkus' letter of 17 June 2005 made it clear that she was terminating her contract without notice as a result of her employer's conduct, which therefore amounted to constructive dismissal.  Regulation 6(5) did not apply since the meaning of "dismissed" in that Regulation only covered actual dismissals and did not extend to constructive dismissal.  Therefore the statutory grievance procedure did apply and the time limit for bringing the claim was extended so that the Tribunal did have jurisdiction to hear her claim.

Although the decision was reached on the basis that Regulation 6(5) did not apply so as to exclude the application of the statutory grievance procedure in constructive dismissal cases, it is of more general application. It demonstrates how confusing the application of the statutory procedures can be, particularly where a grievance arises at the same time as disciplinary proceedings are taking place.  Employers receiving grievance letters during the course of disciplinary proceedings will have to consider very carefully what the grievance is actually about in order to determine whether the statutory grievance procedure applies.

Pinkus v Crime Reduction Initiative  Back

© Pinsent Masons 2007

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

Should you have any questions please contact your usual Pinsent Masons advisor, your local office (see below) or hrnetwork@pinsentmasons.com

National Head of Employment

Chris Booth