23 July 2007

NEWS

Portuguese Presidency of EU Puts Agency Workers Directive Back on the Agenda

The Agency Workers Directive, which was first introduced in 2002 and which aims to give temporary workers the same pay and employment rights as permanent staff, has been put back on the European agenda.  Read more

Workers Experience "Sleep Debt" After Weekends of Late Nights

A survey by the recruitment firm Office Angels has found that workers return to the office on a Monday morning after a weekend of late nights with a "sleep debt" equivalent to a night flight from New York.  Read more

Europe's Gender Pay Gap Almost as Wide as a Decade Ago

According to research by the European Commission, women are earning an average of 15 per cent less than men across Europe and have done for at least 10 years.  Read more

Rise in Sickness Absence Prompts Increase in Well-Being Schemes

A survey from the Chartered Institute for Personnel and Development (CIPD) has revealed a dramatic increase in the number of organisations using well-being schemes as a means to reduce the growing increase in employee absenteeism.  Read more

Young Workers Feel Pressure of Increase in Migrant Workers in the Countryside

A report by the Commission for Rural Communities has warned that young people are being forced to leave the countryside in search of work as a consequence of the influx of migrant workers from Eastern Europe into the rural labour market.  Read more

DBERR Publishes Ready Reckoner to Calculate Increased Holiday Entitlement

The Department for Business Enterprise & Regulatory Reform (DBERR) has published an online calculator to enable employers to calculate the increased holiday entitlement for existing members of staff in the years in which the increases to the statutory holiday entitlement take effect.  Read more

LEGISLATION

There is no new legislation to report this week.

CASES

Tribunal Refuses to Stay Retirement Age Discrimination Claim

An employment tribunal has refused to stay an age discrimination claim pending the ECJ's decision on the lawfulness of the UK's default retirement age.  Read more

Determining Disability for the Purposes of the DDA

The EAT has held that when determining whether an impairment has a long-term effect, a tribunal should take account of all the information available to it and not restrict itself to what was known at the date of the alleged discrimination.  Read more

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NEWS

Portuguese Presidency of EU Puts Agency Workers Directive Back on the Agenda

The Agency Workers Directive, which was first introduced in 2002 and which aims to give temporary workers the same pay and employment rights as permanent staff, has been put back on the European agenda.

The Directive has encountered numerous delays as a result of a failure to reach agreement on the protections it will offer.  The main disagreement has arisen between unions and employers over the length of the qualification period for temporary workers to gain full employment rights.  Unions believe they should gain full protection from the first day of employment whereas employers believe the workers should not be able to gain full employment rights until a later date.

Pat McFadden, the employment relations minister, has said that the Directive will be discussed "at an official level" in September and, if discussions are successful, the issue would then be put to the EU Council of Employment in December for a vote.  (Personnel Today, 17 July 2007)  Back

Workers Experience "Sleep Debt" After Weekends of Late Nights

A survey by the recruitment firm Office Angels has found that workers return to the office on a Monday morning after a weekend of late nights with a "sleep debt" equivalent to a night flight from New York.

Workers' sleep deprivation means that two thirds of workers start Monday mornings feeling "cranky and unproductive".  The effect on businesses is a loss of £120 million in wasted wages as a result of staff spending an extra 20 minutes making coffee and settling back into work.  (The Telegraph, 16 July 2007)  Back

Europe's Gender Pay Gap Almost as Wide as a Decade Ago

According to research by the European Commission, women are earning an average of 15 per cent less than men across Europe and have done for at least 10 years.

The Commission's research shows that the gender pay gap has risen in some countries – in Denmark the difference in the average earnings of men and women increased from 11 per cent in 1994 to 15 per cent in 2001. 

Vladimír Špidla, European Commissioner for employment and equal opportunities, said the pay gap is more shocking because girls do better at school and more of them go on to university.  He said the findings reveal "an absurd situation" and the continuing discrepancy "needs to change".

Mr Špidla put the gender pay gap down to a combination of factors, including the need for women to spend time on unpaid work, such as taking care of the household and children, as well as "pure discrimination".

The report proposes making more use of legislation that outlaws discrimination to tackle the pay gap.  It suggests the use of European money to fund national employment polices and encourages the exchange of best practice between European counties.

Mr Špidla believes a comprehensive effort is needed to tackle the disparity in pay.  He said: "the only way to succeed is by getting men and women, non-governmental organisations and governments on board to tackle the problem at all levels."

The EU report also highlighted the way in which jobs dominated by women were often undervalued.  It said: "Jobs requiring similar qualifications and experience tend to be paid less when they are dominated by women rather than by men.  For example, in some countries nannies earn less than car mechanics, supermarket cashiers less than warehouse workers, and nurses less than the police."  (The Guardian, 18 July 2007)  Back

Rise in Sickness Absence Prompts Increase in Well-Being Schemes

A survey from the Chartered Institute for Personnel and Development (CIPD) has revealed a dramatic increase in the number of organisations using well-being schemes as a means to reduce the growing increase in employee absenteeism.

A total of 42 per cent of organisations have now implemented a well-being scheme, as compared to just 26 per cent last year.

The CIPD questioned over 800 organisations for its annual absence management survey.  The survey highlighted the fact that employee absenteeism levels have risen from an average of eight working days last year to 8.4 days in 2007, resulting in an increased cost of over £60 per employee (from £598 to £659). 

The CIPD believes that the increased investment in employee well-being is an employer reaction to the increase in absences in the workforce.  Ben Willmott, CIPD Employee Relations Adviser, said: "The report shows employers are increasingly recognising the benefits that can be gained by supporting employee well-being.  It is becoming more and more evident that organisations are starting to manage employee health rather than sickness, not as a standalone well-being strategy but as an integral part of an overall well-being programme.  As organisations increasingly face the costs and risks of long-term absence, damaging their productivity, growth, retention and brand, businesses are increasingly under pressure to address the well-being agenda."

However, Mr Willmott said "attempts to promote employee well-being and manage absence will be fatally undermined unless they are underpinned by good people management and effective work organisation.  There is no point providing healthy eating options and on-site gyms if people are dreading going to work because of their bullying line manager or because of their excessive workload."  (Workplace Law, 18 July 2007)  Back

Young Workers Feel Pressure of Increase in Migrant Workers in the Countryside

A report by the Commission for Rural Communities has warned that young people are being forced to leave the countryside in search of work as a consequence of the influx of migrant workers from Eastern Europe into the rural labour market.

According to the report, the number of migrants working in the countryside has increased by 200 per cent in three years.  This is believed to be contributing to the long-term decline of young people living in rural areas – over the past twenty years the number of people aged 15 to 29 living in the countryside has dropped by 400,000. 

A spokesman for the Commission said: "Urban areas are used to dealing with large numbers of migrants but rural areas are not.  Young people expect to pick up fruit-picking jobs but these are taken by 'A8' migrant workers.  There are certainly fewer job opportunities available for young people because of very high rates of immigration."  

Dr Stuart Burgess, the chairman of the Commission and the Government's rural advocate, said: "Much more needs to be done to retain young people and provide them with opportunities and incentives."  (The Telegraph, 17 July 2007)  Back

DBERR Publishes Ready Reckoner to Calculate Increased Holiday Entitlement

The Department for Business Enterprise & Regulatory Reform (DBERR) has published an online calculator to enable employers to calculate the increased holiday entitlement for existing members of staff in the years in which the increases to the statutory holiday entitlement take effect.

As reported in our earlier Briefing, the amount of holiday to which workers are entitled under the Working Time Regulations 1998 is due to increase on 1 October 2007 (to 24 days) and again on 1 April 2009 (to 28 days).  The DBERR's "Ready Reckoner" calculates the statutory holiday entitlement from 2006-2010 for all affected employees based on when their leave year commences. 

Holiday Entitlement Ready Reckoner  Back

LEGISLATION

There is no new legislation to report this week.

CASES

Tribunal Refuses to Stay Retirement Age Discrimination Claim

An employment tribunal has refused to stay an age discrimination claim pending the ECJ's decision on the lawfulness of the UK's default retirement age.

Under the UK age discrimination legislation it is lawful to retire someone at the default retirement age of 65, provided that the employer follows the correct retirement procedures.  However, Heyday has challenged the lawfulness of the default retirement age, arguing that the UK's retirement provisions do not properly implement the EC Directive and that a default retirement age is not permissible.

The case concerned an employee who was retired at the age of 65.  The employee accepted the employer had followed the retirement procedures set out in the age discrimination regulations.  On this basis, the employer argued that the claim had no reasonable prospect of success and should be struck out.  The employee argued that the claim should be stayed pending the ECJ's decision in the Heyday case on whether the UK provisions are lawful.

The tribunal refused to stay the claim.  It noted that the Advocate General in a Spanish case (Palacios de la Villa v Cortefiel Servicios SA) testing the lawfulness of similar set retirement provisions had given an opinion that those provisions are lawful under the Directive.  Whilst it was possible that the ECJ in that case might not follow that opinion, it considered there was a high chance it would and that therefore Heyday's challenge was also unlikely to succeed.  On that basis, the chances of this claim being successful were remote, a stay should not be granted and the claim was struck out. 

Whilst other employment tribunals considering similar issues will not be obliged to come to the same decision as the employment tribunal in this case as employment tribunal decisions are not binding, the decision will still be of interest to employers who rely on the default retirement age contained in the age discrimination regulations.  In addition, if the ECJ in the Spanish case does follow the Advocate-General's opinion, this is likely to strengthen arguments that the UK default retirement age is lawful with the result that employers facing similar claims to this one should have a good chance of getting the claim struck out. 

Johns v Solent SD Ltd ET  Back

Determining Disability for the Purposes of the DDA

The EAT has held that when determining whether an impairment has a long-term effect, a tribunal should take account of all the information available to it and not restrict itself to what was known at the date of the alleged discrimination.

In order to be disabled for the purposes of the Disability Discrimination Act 1995 ("DDA), a person must suffer from an impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities.  The effects of an impairment are long term if they have lasted or are likely to last for 12 months or for the rest of the person's life. Where the effects of an impairment have ceased, they are treated as continuing if they are likely to recur.  The EAT in this case had to determine what information a tribunal is entitled to take into account when determining whether the effects of an impairment are likely to recur. 

Ms McDougall suffered from a mental condition and had a history of mental illness.  Having suffered depression, received psychiatric treatment and been sectioned under the Mental Health Act, she was discharged into the care of a consultant psychiatrist.  She was offered a job as a database assistant but the job offer was later withdrawn on medical grounds.  She claimed disability discrimination. Between the job offer being withdrawn and the tribunal hearing, Ms McDougall was again sectioned under the Mental Health Act.

The tribunal found that Ms McDougall was not disabled for the purposes of the DDA.  Looking at the position at the date the job offer was withdrawn, it was of the view that the effects of her impairment were not likely to recur and were not therefore long term. 

Ms McDougall appealed to the EAT, arguing that the tribunal should have assessed the likelihood of recurrence on the basis of the facts known at the date of the hearing, including the fact she had suffered a relapse and again been sectioned.  The EAT agreed.  Relying on House of Lords authority outside the employment field, it held that courts should not be expected to ignore the reality of what has occurred when determining what might have occurred.  On this basis, the tribunal should have taken into account the fact that Ms McDougall had been sectioned again after the job offer was withdrawn.  Taking this into account, it held that the effects of her impairment were likely to recur and that she was disabled for the purposes of the DDA.

Paragraph C.8 of the Guidance on matters to be taken into account in determining questions relating to the definition of disability states that the likelihood of recurrence should be considered taking all the circumstances of the case into account.  This case demonstrates that this includes matters arising after the alleged act of discrimination has taken place.  There has been differing authority at EAT level on this point but the fact that the EAT in this case considered itself bound to apply recent House of Lords authority outside the employment field to cases under the DDA suggests that this is the approach tribunals are likely to take in future.  Equally tribunals will take this approach when considering whether the effects of an impairment are likely to last for 12 month. For employers, this is likely to mean that, in the case of mental impairments in particular, it will be risky to assume that someone is not disabled merely on the basis that the effects of an impairment are not considered to be long term.  Any detrimental treatment by an employer could result in a relapse causing a tribunal to conclude that the effects were likely to recur and therefore long term. 

McDougall v Richmond Adult Community College  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.

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National Head of Employment

Chris Booth