Newsletter – December 2007 – Produced by QED Training Services

All UK Age Discrimination Claims on Retirement Frozen!

In a sensational development that could have far reaching implications for people who are being “forced” to retire, the President of the Employment Tribunal Service in England and Wales, Judge Goram Meenan, has ordered a ‘stay’ on hearing all mandatory retirement age claims until the European Court of Justice (ECJ) has come to a decision in the ‘Heyday’ challenge. The ‘stay’ will also apply to any new claims which are lodged in the meantime. Heyday, part of the National Council on Ageing, says the new government regulations amount to "a de facto mandatory national retirement age". Its challenge to the law is being backed by Age Concern. The government says it acted properly in implementing European rules allowing employers to retire people at 65. Judge Meenan’s decision was prompted by the fact that some Tribunal Chairs have been throwing out such claims brought by older workers who have been forcibly retired by their employers under Regulation 30 of the Age Regs., whilst others have been agreeing to ‘stay’ such claims until the Heyday challenge is settled.

Judge Meenan also ordered that the ‘stay’ should be reviewed when judgement is given by the Court of Appeal in a mandatory retirement case (Johns v Solent SD), which is being referred to it by an Employment Appeal Tribunal. This assumes that the Court of Appeal will hear this case before the ECJ gives its Heyday decision, which is not expected before Spring 2009. Commenting on this development, Chris Ball, Chief Executive of TAEN – the Age and Employment Network said:

“The implication of this decision is that individuals are entitled to lodge claims and await the ECJ’s decision. If the ECJ rules in favour of the ‘Heyday’ legal challenge, claims could then succeed. Logically, anyone unhappy with the decision made by an employer to force them to retire should now register a claim. Tribunals could be hard-pressed to deal with a large volume of claims resulting from this decision. The best - and most sensible - response would be for employers to agree all requests to work beyond 65 and make this policy well-known to employees. Additionally, the Government should bring forward the 2011 review of the default retirement age and finally accept that it should be scrapped once and for all.”

Meanwhile 20 Year Old Wins Age Claim!

A 20 year old from Surrey has just become the first person to win an age discrimination claim in an Employment Tribunal on the grounds that she was too young. Megan Thomas claimed she was dismissed from her job as a membership secretary in a private members’ club in the City of London because managers told her she was not old enough to deal with their members. The Tribunal upheld her claim that she had been unfairly dismissed and discriminated against on the basis of her age. Ms Thomas told reporters:

“I was upset to lose my job; I had never lost a job before. It was humiliating especially because I was told I was too young and if they had met me a few years later there may not have been a problem. They also said that I was deceitful, sly and lacked integrity, which was hurtful and untrue.”

Thomas’s solicitor, Lawrence Davies, commented:

“This is the first time that the courts have said age discrimination adversely affects the young and young-looking as well as the old. We hope that more young workers exercise their employment rights.”

Queen’s Speech Unveils Major Reforms in Work-Life Balance Laws

Millions more parents will be able to work part-time under an extension of the right to request flexible employment. This was one of the cornerstones of the Queen’s Speech last month, outlining the Government’s plans for the forthcoming parliamentary session. A senior executive from Sainsbury’s is to lead a review into how many parents should be given the right to request that they do their jobs part time, work from home or work flexitime. There are some restrictions on existing rights based around the age of the child (under 6) and responsibility for elderly or disabled relatives. New laws could see an extension of these rights to include parents who want to spend more time with their children at the age of 11 during their key exams, and the possibility of further extensions to parents with children aged 16 or even 18. The Government have asked the Sainsbury executive to report by March 2008.

Other measures in the Queen’s Speech included:-

  • After 2015, young people will be required to stay in education or training until they are 18. Parents, employers and local authorities will have a duty to make sure teenagers comply
  • Gay couples will be allowed to become joint parents of children conceived through fertility treatment
  • Employment Law will be amended to introduce new procedures for resolving industrial disputes
  • A new law that will criminalise inciting hatred of gay people - although this was being reconsidered as we went to press

New TUC Website to Support Polish workers

The TUC has launched a new Polish language website to support the increasing number of Polish workers in the UK. The website - http://www.pracawbrytanii.org/ - run by the TUC in partnership with Citizens’ Advice, explains the rights workers can expect at work, including health and safety, working time, holiday entitlement and sick pay. There's also information about social issues such as housing and health and guidance about what living and working in the UK is really like. Since Poland joined the EU in 2004, hundreds of thousands of Polish workers have joined the UK workforce. The TUC says many of these workers have fallen prey to unscrupulous employers and have been forced to work long hours for little pay, in unsafe workplaces with very few employment rights.

No more pay for women from October 31st to December 31st 2007! Gender pay gap closing 'at snail's pace'

In a demonstration last month in Downing Street, supporters of the Fawcett Society who campaign for equal rights between women and men, held banners proclaiming that if every UK female stopped receiving pay for their work from 31st October to December 31 2007, the total of the UK money would equate to the actual gender pay gap in Britain!

And the TUC has called for 'decisive action' to close the gender pay gap, after latest figures revealed women's pay still lags far behind that of men. Commenting on the Annual Survey of Hours and Earnings (ASHE) released on 7 November, the Fawcett Society said:

'Progress on closing the gender pay gap has slowed to a snail's pace. It is completely unacceptable that despite making great strides at work and in education, women are still being paid 17.2 per cent less than men. Eradicating the gender pay gap would help to bring women and their children out of poverty. The 35.6 per cent gender pay gap for part-time workers illustrates the shortage of quality part-time work across the labour market. Decisive action is needed to reverse the sorry state of pay inequalities at work. Greater transparency and fairness in pay systems will help employers to eliminate pay discrimination, but the voluntary approach has failed so mandatory pay audits are needed. Better access to good quality part-time and flexible work is also needed so that women can make full use of their skills and are not penalised for having a family. Government plans to extend the right to request flexible working to all parents is a welcome step towards closing the pay gap.'

Employers' lobby group CBI, however, remains opposed to mandatory pay audits. CBI spokesperson, Katja Hall, said:

'Mandatory pay audits won't tackle the underlying causes of the gender pay gap,' adding they would 'only divert company resources from taking action to solve the problem. Better careers advice is needed to help young girls choose more financially rewarding careers and better childcare to help women climb the career ladder.'

The ASHE figures showed the gender pay gap had actually widened in Scotland, by 1.2 per cent.

Other News in Brief

Mommy money: Expectant mothers are to be given a new one-off payment worth £190 to keep them healthy in the final weeks of pregnancy, the government has said. The Health in Pregnancy Grant will be paid to women from the twenty-fifth week of pregnancy starting April 2009 and is designed to help women maintain a healthy diet and lifestyle at a time when many of them have stopped working.

Not-for-bullying: Unite has launched an 'anti-bullying hot mail' for staff working in the not-for-profit sector. It has set up a dedicated e-mail address - BanBullying@Unitetheunion.com - where victims or witnesses of bullying can contact the union.

Around the Courts

Asian Man got a job interview “after inventing a Welsh name”

A Pakistani born engineer who was turned down for a job was invited for an interview when he reapplied using a false Welsh name, an employment tribunal was told last month. Qamar Malik was made redundant by Thames Water and was told he was not suitably qualified for a post with Amec Utilities Ltd, a multinational company. But when his application for a £33,000 inspector’s job with Amec‘s waste water plant in Wales was turned down, he applied using the name Ryddir Aled Lloyd-Herbert .He was invited for interview. And after submitting the bogus application, he then also reapplied using his own name and was again turned down! We’ll let you know next month how he gets on!

Grass cutting caused vibration injury

A council gardener has developed debilitating vibration white finger (VWF) as a result of cutting grass with strimmers and mowers. Mr Robert Llewellyn received £3,000 compensation from Cardiff County Council. He had worked since as a gardener and sexton in the council's bereavement section. 'My job meant that I was strimming for most of the day with a 10 minute break in the morning and a 30 minute break at lunchtime,' he explained. 'I used an industrial strimmer, which weighed between 28-30 lbs, but I was never provided with any gloves. My doctors have now confirmed that this ongoing exposure has caused vibration white finger which means that I suffer from ongoing pain and numbness.' Allan Garley, regional secretary of the GMB's south western region, commented: 'Clearly this settlement will assist other union members who have been exposed to vibrating tools for long periods during the course of their employment.' He added: 'GMB members in local government might not be aware that VWF is a condition affecting council workers as well as our members working in traditional heavy industry such as those working in the steel industry. If you regularly use vibrating tools and suffer from tingling, numbness, loss of grip in your fingers or whitening of the fingers you should take action and contact your union representative.

Workplace visit leads to costly slip up

A Birmingham woman who injured her back and knee after slipping on vomit on the floor of a college nursery has received damages of £8,500. The woman was carrying her nine month old baby boy whilst visiting her employer. The unnamed woman was on maternity leave from Birmingham's City College and was visiting her manager to finalise her return to work. As she was walking through the corridor, she slipped in vomit that had not been cleared. As she fell, she instinctively held the baby tighter and smashed to the floor on one knee. Thompsons Solicitors, who acted for the injured woman, said: 'This was a nasty accident that could have been worse. The area should have been cleaned or cordoned off, but neither of these actions was undertaken. Thankfully the baby came out unscathed, but his mother didn't.' With support from her union and the law firm, the woman successfully claimed against the college's insurer, who eventually admitted liability.

Holiday victory on sham site contracts

Construction union UCATT has won a major tribunal victory in its campaign to ensure site workers receive holiday pay. The case involved two UCATT members from East Yorkshire who were employed as bricklayers by Redrow Homes (Yorkshire Ltd). Written contracts described the men as 'self-employed bricklayers' and contained a clause that in theory allowed the workers to send a substitute in their place - a ruse to evade liability for holiday pay. The tribunal found the contract to be a sham as it 'did not seriously reflect the relationship between the parties' and 'it was never expected by either side, seriously or otherwise, that either of the claimants would seek to provide a substitute or refuse the work offered'. During the course of the Tribunal Redrow Homes admitted that the contract had been redrafted as a result of losing a Court of Appeal case on the issue of holiday pay in 2004. The tribunal was forthright in its criticism of the company, stating: 'Redrow in effect wanted workers but did not want to incur the obligation to pay holiday pay.' Alan Ritchie, general secretary of UCATT, said: 'Companies have got no hiding place, they must accept that they have a duty to provide workers with basic rights such as paying holiday pay. This tribunal victory is significant as it serves as a warning to all companies that sham contracts and fake substitution clauses will not allow them to bypass their obligations.'

Campaign for new Community Day Bank Holiday

The TUC and voluntary sector organisations are calling for a new Community Day holiday in October to celebrate the work of the UK's 20 million volunteers. The Community Day campaign - backed by the TUC, the National Council for Voluntary Organisations (NCVO), Volunteering England, Community Service Volunteers (CSV) and the National Association for Voluntary and Community Action (NAVCA) - wants a new bank holiday to give people a break from work and encourage them to participate in community activities. The campaigners say Community Day will celebrate the contribution that volunteers make to society and help community groups to publicise the work they do. TUC general secretary Brendan Barber said: 'The UK has fewer bank holidays than nearly every other country in Europe, so there is a huge demand for an extra day off work. Many people would also love to volunteer, but can't find the time because of work and other commitments. A Community Day would give everyone the chance to participate in their local community.' He added: 'Politicians are always waxing lyrical about the contribution that voluntary groups make to society. So why not properly recognise their work and give the voluntary sector a fantastic recruitment drive by backing the campaign for a Community Day bank holiday.' Stuart Etherington, chief executive of NCVO, said: 'A Community Day would be the perfect opportunity for people and communities to celebrate the inspirational work that voluntary and community organisations do throughout the year. By making people more aware of the voluntary work going on in their areas, it would also encourage more and more to engage in community activity to build their skills and, most importantly, help transform other people's lives.'

That Teddy Bear!

As we went to press, the case of the Liverpool teacher charged under Sudanese law for insulting the Islam faith by allowing children to name a Teddy Bear “Mohammed” was at the centre of legal and diplomatic negotiations. One of our readers - Jennifer Topping - has e-mailed us today with this viewpoint. We welcome your views too!

“Many religious have difficulty respecting women and/ or gay people. Throughout history many wars have been started and perpetuated by the divisions arising from religion. Given the interpretive nature of religion regarding the respect it affords others, and the interpretive nature of laws arising from religion isn't it about time we acknowledged that religion doesn't promote equality, respect tolerance for others? Is religious diversity sustainable? How can you respect someone whose fundamental belief supports and undermines the existence of your own family? Doesn't religion by 'framing reality' and providing its own truth divide those who think differently rather than unite us all?”