Can employers have a merry Christmas?
It appears that our lawmakers were not in a festive mood when drafting employment legislation. Otherwise Santa's Elves would be protected by the Working Time Regulations, children's letters to Lapland would be stored in accordance with the Data Protection Act and Santa Claus himself would have reached the default reitrement age years ao.

Still, employers must remain vigilant to avoid the risk of employment tribunal claims welcoming them in the New Year, particularly those arising during the Christmas party season. A recent survey by the Daily Star found that 45% of employees are hoping to have a "fling" at their Christmas party. If any of these employees are let loose on the dance floor armed with mistletoe and some dodgy chat-up lines, this could spell trouble. Employers can of course be liable for acts committed by their employees in the course of their employment which can, in certain circumstances, cover Christmas parties.

On that scary note – looking around McGrigors office anyway – we wish you all the best for the festive season and a very happy 2010! Our weekly bulletin will return in early January.

Seminars
The first of our sessions in 2010 – an Employment Law Update - are running on 26 and 28 January in Edinburgh and Glasgow respectively. Please click here for more details and to register.

Equality Focus

In the run-up to implementation of the Equality Bill, we are planning a series of short equality briefings for the New Year. To receive these, please register here.

DDA Goods and Services provision
Royal Bank of Scotland Group Plc v Allen
The Court of Appeal has upheld a County Court decision which required RBS to carry out £200,000 of building work at one of its branches to ensure availability of its services to wheelchair-bound customers including Mr Allen (A). A, who has muscular dystrophy, opened an account at the main Sheffield branch of RBS. Access to this branch is via flights of stone steps with no wheelchair access. A complained and RBS suggested alternative ways to access their services including internet and telephone banking or using other branches within the city. A brought County Court proceedings alleging RBS had breached the duty to make reasonable adjustments (which is contrary to section 19(1)(b) of the DDA). The Court upheld A's claims, ordered RBS to install a lift and awarded £6,500 damages for injury to feelings.

RBS' appeal failed, and the Court of Appeal said that the DDA requires not just some available access to disabled people – it requires a service as close to the standard normally offered to the general public as is reasonably possible. RBS' traditional "face to face" contact with staff was a key service feature, and RBS had offered no reasonable alternative to this.

Comment
Press reports of this case made much of RBS having to spend £200,000 to accommodate "one customer". However, service providers (which include banks) owe a duty to make reasonable adjustments to disabled persons generally. The judgment confirms that the courts will, in certain circumstances, compel service providers to take steps to facilitate the needs of customers with disabilities.

News

National Insurance – Contributions to be raised from 2011
In his pre-budget report, Chancellor Alistair Darling announced that national insurance contributions for both employers and employees would increase by a further 0.5% in October 2011 (a 0.5% increase had already been announced in 2008 for October 2011). The Conservative party has said that it would work hard to avoid this increase if it wins next year's general election.

Both the CIPD and the CBI have responded negatively to the increase in NIC, calling it a "tax on jobs". The increase means that employer NIC will increase from 12.8% to 13.8% from October 2011.

Comment
When the increase in NIC takes effect, more employers may look to implementing salary sacrifice schemes in order to try to mitigate the effects of the additional costs of contributions and ensure that salary and benefits packages for employees are as tax efficient as possible.

Legislation coming into force on 1 January 2010

• Employment Protection Code of Practice (Time off for Trade Union Duties and Activities)
  ACAS has produced a revised Code of Practice on Time Off for Trade Union Duties and Activities. This replaces the Code of Practice from 2003 and updates the Code to take into account, for example, TUPE 2006. The Code comes into effect on 1st January and includes guidance on time off for union learning representatives. See the Code here

• Blacklisting for union membership or activities is prohibited
  The blacklisting of workers from employment as a result of their union membership or activities will be prevented. The Government has the power to introduce regulations to do this under s.3 of the Employment Relations Act 1999. No date has yet been fixed, but the regulations are anticipated in early 2010

Recent Cases

Gender neutral dress code not discriminatory
Dansie v Commissioner of Police for Metropolis
The EAT has held that a dress-code which required a conventional standard of appearance is not itself discriminatory, provided that neither sex is treated unfavourably as a result of its enforcement.

Mr Dansie (D) was training as a police officer. He had long hair which he wore in a bun and was told that he would have to cut it in order to comply with the dress-code. D did so in order to avoid facing disciplinary action. The police agreed that a female employee would not have been required to cut her hair. D brought a claim of sex discrimination but the Tribunal found there had been no discrimination.

In dismissing D's appeal, the EAT said "a difference in treatment between the sexes on one particular aspect of the dress code is not necessarily more favourable treatment of a member of one sex compared with a member of another sex. In order to determine whether an employer treats members of one sex less favourably than the other it is necessary to consider the dress code as a whole, even though a single provision of the code may upset the balance of treating the sexes equally." D was unsuccessful as it was held that the police would have treated a woman in the same way in a comparable (albeit not the same) situation and therefore, there was no less favourable treatment on the grounds of sex.

Comment
This case highlights that not every difference of treatment will constitute "less favourable treatment". There may be a difference in treatment if men and women are required to wear different uniforms, but as long as the standards set are equivalent, the treatment will not be considered to be less favourable and will not therefore amount to sex discrimination.