Newsletter – July 2008

Marriage Registrar wins case after her refusal to conduct same sex ceremonies

A recent tribunal victory has illustrated yet again the scope for conflict within equality laws between one group and another. Last week, a marriage registrar with Islington Council won a case for refusing to conduct same-sex ceremonies. The registrar, Lillian Ladele, who claimed that civil partnership ceremonies went against her Christian faith, said that her victory was one for "religious liberty". The tribunal ruled that Miss Ladele was discriminated against on grounds of religious beliefs and was harassed. Islington Council said it was "disappointed" and is considering an appeal against the ruling.

Until December 2007 registrars in Islington effectively worked on a freelance basis and could swap with each other to avoid same-sex ceremonies. But since then they have been under direct control of the local authority which, it is claimed, has led to far less flexibility on the registrars' responsibilities. Miss Ladele said she was being effectively forced to choose between her religion and her £31,000-a-year job as a result. She said she was picked on, shunned and accused of being homophobic for refusing to carry out civil partnerships. Gay rights campaigners said the ruling was a "dangerous subversion" and a "violation of human rights".

Council held liable for "customer's harassment" of white staff member offended by the word "paki"

Ms Gravell, a white British female, worked for Bexhill Council's housing department. She claimed that whilst she was on duty and in the company of a customer the customer twice used the word 'paki' which she found uncomfortable. Ms Gravell claimed that it was Bexhill Council's policy not to challenge any customer who made racist remarks or tell them that such remarks were not acceptable. Ms Gravell complained internally to the Council but was not satisfied that they dealt with the matter appropriately. She resigned and raised tribunal proceedings claiming racial harassment under the Race Relations Act.

The claim was initially struck out as having "no reasonable prospect of success" but overturned on appeal. The Appeal Tribunal decided that even though the Council strongly contested the allegation that it was their policy not to challenge racist comments or behaviour by customers, if this was the case, the policy could be capable itself of having the effect of creating an offensive environment for employees. The policy could render the Council liable for harassment under the Race Relations Act. Their failure to properly deal with the allegations also counted against them.

This case clearly emphasises the danger of ignoring or not taking appropriate action when an employee reports discriminatory acts by third parties, even where the employee concerned is not an ethnic minority themselves. It also highlights the importance of having an adequate bullying and harassment policy in place and of promoting an environment where employees are clear that bullying and harassment will not be tolerated. The definition of harassment in the Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Age) Regulations 2006 is very similar to that in the Race Relations Act. Whilst there have not yet been any relevant decisions covering harassment by a third party in relation to sexual orientation and age, it is likely that a tribunal would apply similar reasoning to that applied in the Bexhill case.

Company that supplies meat to Tesco is accused of potentially discriminatory "toilet break" policy

A company that supplies meat to Tesco is being urged to put an end to its “draconian toilet break policy”, where workers are forced to clock off to visit the toilet so that time spent in the toilet was not included in their working week. Staff at Brown Brothers are also officially expected to provide medical evidence in order to be excused from the system, which campaigners say will mean that women in the early stages of pregnancy or having their period might have to get a note from a doctor to explain why they need to use the toilet more often than usual.

Legal experts say that unless there is a provision in an employee's contract of employment which specifies that the employee will not be paid for time spent at the toilet, it is unlikely that an employer will be entitled to deduct from an employee's salary an amount representing the monetary value of the time the employee spends at the toilet. This is not to say that an employer is not entitled to keep track of the time an employee spends away from his/her work station in order to investigate and possibly discipline people who are genuinely ‘skiving’. However, employers need to bear in mind that pregnancy or medical conditions can result in certain individuals spending more time at the toilet and the potential for sex or disability discrimination implications of disciplining such individuals. Employers should remember that an employee is entitled to a 20 minute rest break if he works for six hours or more.

Major change in "disability test" - House of Lords ruling

The House of Lords has just overturned one of the key tests applied in disability discrimination law. Their decision raises question marks about almost every disability discrimination decision reached since 1999! The question the Law Lords were addressing in an appeal case was:-

  • How you decide whether something is discrimination - to whom does the person with the disability compare themselves? To illustrate their eventual answer, the Lords outlined the impact of a ‘no dog’ policy. Thus:-

If a restaurant bans dogs, is a man who is blind less favourably treated when he is not allowed in with his guide dog? Their Lordships outlined two possible answers:-

  1. If he is compared to someone without a disability, but with a dog - he is not treated less favourably because everyone with dogs is banned.
  2. If he is compared to someone who is not only not blind but also does not have a dog (because the dog only arises because the person is blind) he is less favourably treated (they are allowed in and he is not).

The law since 1999 had been that the test was the broader test in 2. After the House of Lords decision in this case this week, it is now the test in 1. This is very important for employers because it is central to the disability discrimination test applied when an employee has their employment terminated after long-term ill health absence. If all employees with the same length of absence and future prognosis are dismissed, whether they have a disability or not, that is now not less favourable treatment under the Disability Discrimination Act (when it would have been before this decision). That means such decisions to terminate do not have to be considered by a Tribunal on the difficult test of "justification", they are simply not disability discrimination at all.

However, it is vital to remember that:-

  • Unfair dismissal law still applies, meaning their incapability to do the role must be fairly established; tribunals are still very sympathetic to employees in these circumstances;
  • Employers are still under a duty to make reasonable adjustments under the Disability Discrimination Act, so prior to dismissal must exhaustively explore alternative ways of the individual returning to work including adjusting their role, providing training and moving them to alternative vacancies.

New Equality Law will introduce powerful Equal Pay rules

The big news this month has been the further release of information from the Government about proposals for a new equality law. And as reported in our June update, the Minister is taking the opportunity to create what is effectively a "one stop shop" law covering all the equality statutes. Indeed the Equality Bill is set to ‘declutter’ discrimination law, creating a “single statute to replace the complex web of legislation over the years” and will be written in plain English so that those who need to comply with it “can see the wood for the trees”. But the new law will take the country into new equal pay waters, including:-

  • More openness when it comes to what staff are paid, so that gender pay gaps do not remain hidden:

Followed by five new measures to help shrink the gender pay gap in the private sector:-

  1. By outlawing clauses in employment contracts, which prohibit employees disclosing their pay to each other;
  2. By considering how public procurement can be used to deliver change;
  3. By providing for an Employment Tribunal to be able to make a recommendation applying not just to the successful complainant but to everyone in the workplace;
  4. By having the Equalities and Human Rights Commission conduct inquiries under its legal powers into sectors where most progress needs to be made, starting with the financial services sector; and
  5. By creating a new kite-mark system to challenge companies to report on equality.
  6. And the measure that is already causing controversy is the plan to give more scope for employers to choose a woman or a black or Asian person ahead of other candidates if the skill sets are identical. More guidance is to be issued by the Government on this plan. We will keep you posted.

    New Guidance for the Health and Safety of Migrant Workers

    A new webpage from the Health and Safety Executive (HSE) provides advice for the employers of migrant workers. A TUC safety leaflet, published with HSE and translated into 19 different languages, is an attempt to improve safety awareness for this growing segment of the UK workforce. The leaflets are in Albanian, Arabic, Bengali, Chinese, Czech, Greek, Gujarati, Pashto, Portuguese, Polish, Punjabi, Romanian, Russian, Slovak, Spanish, Tamil, Turkish, Ukrainian and Welsh, as well as English. HSE's online guidance targets employers, employment agencies, employment businesses, gang masters and other labour providers and spells out their responsibilities under health and safety law towards migrant workers. Further details are available from the Health and Safety Executive.

    And reporting of accidents guidance changes for all workers - Trafford Centre restaurant and B & Q pay the price

    The HSE has just revised its guidance on the Reporting of Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) to take account of minor legal amendments elsewhere and to remind employers that the easiest way to report an incident is to use the Incident Contact Centre (ICC) on 0845 300 99 23 (local rate). RIDDOR places a legal duty on:

    • Employers;
    • Self-employed people;
    • People in control of premises;

    To report work-related deaths, major injuries or over-three-day injuries, work related diseases and dangerous occurrences (near miss accidents). We can supply you with a short summary of the new RIDDOR rules or again do contact the Health and Safety Executive.

    Having good processes in place is useless if they are not implemented!

    Restaurant prosecution

    A Manchester restaurant owner has been prosecuted after a horrific accident in which a chef's foot was severely burned by hot oil. At the restaurant in the Trafford Centre, the chef was standing on greasy kitchen equipment to clean a canopy, when he slipped and plunged his foot into hot cooking oil. The owners admitted to four health and safety offences at Trafford Magistrates’ Court and were convicted for not having a safe system of work for cleaning equipment at high level, using defective ladders and kick stools to carry out cleaning and not having properly assessed the risks before allowing the work to go ahead. The company was fined £11,500 and ordered to pay £3,084 in costs.

    B and Q Prosecution

    DIY chain, B&Q, has been fined £10,000 after a serious accident in which a wall mounted display fell onto a 12-year old boy in a Nottingham store. During the prosecution, the magistrates said that B&Q had a wealth of good processes in place but if they were not implemented then they might as well not be there. In this case, proper actions were not taken and proper checks were not undertaken. The boy was trapped by a 260kg display unit while he was looking at kitchen display units with his father last June. He was shocked and bruised but thankfully not seriously hurt - amazing since it took four people to lift the unit from the boy to allow him to crawl free. The investigation revealed that the unit had not been installed in accordance with the manufacturer's instructions. It had only four screws holding it to an adjacent cupboard, was installed over a change in floor level and protruded into an aisle used by forklift trucks. During the six months it was in store it had been hit at least twice by the trucks and moved out of place. On both occasions staff had pushed it back into position but the screws had sheared off so that the unit was effectively free standing.