Employment Bulletin
August 2005
AGE DISCRIMINATION DRAFT REGULATIONS PUBLISHED
The Government has published the long awaited draft Regulations prohibiting discrimination on the grounds of age in employment and vocational training. The Employment Equality (Age) Regulations 2006 are due to come into force on 1 October 2006 and will require employers to undertake a careful review of their current employment practices. The publication of the draft regulations and accompanying consultation paper marks the beginning of the final consultation period on the new laws.
The consultation period will run until 17 October 2005, giving employers ample time to overhaul their current policies and procedures before the legislation officially comes into force on 1 October 2006.
DATA PROTECTION CODE CONSOLIDATED
The Employment Practices Data Protection Code is now available in one complete, up to date volume, giving employers the chance to have all of the Information Commissioner's guidance on the Data Protection Act 1998 at their fingertips. However, given that the guidance itself amounts to almost 200 pages, businesses will be forgiven for being daunted at the prospect of getting to grips with all the issues.
The Code was previously available online in four individual parts, but has been consolidated and updated to cover:
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Recruitment and selection (job applications and pre-employment vetting);
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Employment records (collecting, storing, disclosing and deleting records);
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Monitoring at work (examining employees' e-mails, phone calls or installing CCTV); and
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Information about workers' health (obtaining and handling medical information).
In addition, there is supplementary guidance setting out good practice recommendations and frequently asked questions, as well as a "Quick Guide" aimed at small businesses.
The launch of the consolidated Code coincides with the creation of a new "Regulatory Action Division" of the Information Commissioner's Office "designed to make life tougher for the minority of businesses that don't take their data protection obligations seriously." High profile action against employers in breach of the Data Protection Act was relatively uncommon under the old compliance unit of the Information Commissioner's Office, but the new Division comprises a team of specialists whose sole task will be to bring non-compliant employers to task.
The Assistant Commissioner for Regulatory Action, David Smith, says that negotiation will usually be the first option, but the Division will be able to initiate criminal proceedings, use non-criminal enforcement methods, and audit businesses to make sure that personal data is being handled in accordance with the Data Protection Act. For example, employers who have failed to register as data controllers (and are not exempt from doing so) could face legal action. In February of this year the Information Commissioner's Office successfully prosecuted a firm of solicitors for failing to register under the Act. After pleading guilty, the senior partner was ordered to pay almost £7,000 for failing to notify with the Information Commissioner, which entails a nominal cost of £35 per year.
This publication does little to lessen the complexity of this area of the law, but does bring into focus the Information Commissioner's intention to take a more hard-edged approach to compliance in the future.
Employers would be well-advised to conduct a detailed review of their data protection practices and procedures in order to avoid coming into the firing line of the Regulatory Action Division, and McGrigors is perfectly placed to conduct an audit of your business to help steer you clear of prosecution. Please contact us if you would like more information.
FLEXIBLE WORKING ARRANGEMENTS
HARDYS & HANSONS PLC V LISA LAX
In this case the Court of Appeal considered an appeal by H&H against a decision by an Employment Tribunal that H&H had indirectly discriminated against L on the grounds of sex and accordingly that her dismissal was unfair.
H&H had rejected a request by L to be allowed to work part-time when she returned to work from maternity leave. During her maternity leave her role had become redundant and an alternative post was created for her. The Employment Tribunal found that the new role could have been performed by two job sharers or part-time workers and that H&H had unlawfully (indirectly) discriminated against L by insisting that the job be done on a full-time basis.
On appeal the court considered whether the reasons which H&H had advanced for its refusal were objectively justifiable. The Court held that the requirement that the employer justifies his position objectively does not permit the use of the margin of appreciation or range of reasonable responses tests, which are available to an employer when a claim of unfair dismissal is being considered. In determining whether the employer's decision is reasonably necessary the court will use a test of proportionality to take account of the reasonable business needs of the employer and will make its own judgement based upon a fair and detailed analysis of the working practices and business considerations involved. The Court considered that H&H had not approached the feasibility of job sharing with sufficient seriousness and held that the employment tribunal was right to find that L had been unfairly dismissed and indirectly discriminated against.
Comment
This case illustrates that employers must carefully consider requests for flexible working on a case by case basis and bear in mind that a refusal of a flexible working request may result in a claim for indirect sex discrimination. Employers should approach the feasibility of flexible working arrangements with an open mind and explore potential solutions with the employee. Employment tribunals will be quick to shoot down any employer whom it considers has overstated or exaggerated the obstacles to such arrangements.
EMPLOYMENT TRIBUNAL AWARDS £477,000 TO WHISTLEBLOWER
LINGARD V HM PRISON SERVICE
This case concerned an employee who was unfairly dismissed for having reported the mistreatment and bullying of prisoners to her employers. Her claim for unfair constructive dismissal on the grounds of a protected disclosure was successful in the hearing before the Tribunal earlier this year.
This week the Leeds Employment Tribunal delivered judgement on the remedy. Lingard was awarded a basic award of £3,195, a compensatory award of £470,687 in respect of future loss of earnings and loss of pension rights and a further £3,000 for injury to feelings.
Comment
Under the Public Interest Disclosure Act 1998 there is no cap on the compensatory award which can be made to an employee dismissed for making a protected disclosure. According to Public Concern at Work, an independent authority on public interest whistleblowing, in the first three years of the Public Interest Disclosure Act coming into force, employees lodged over 1200 claims alleging victimisation for whistleblowing. The highest award made by a tribunal so far under PIDA is £805,000, the lowest £1000 and the average £107,117. Mrs Lingard has been awarded the highest sum for a public sector employee.
UNFAIR DISMISSAL - TRIBUNAL AWARDS
KATHLEEN SPEIRS -V- IAN MURRAY
A recent decision issued by the employment tribunal in Glasgow has given an interesting insight into the heads of claim under which a tribunal is prepared to make awards.
Kathleen Speirs worked in a bar for seven years. She was paid cash and never received a pay slip. On January 6 2005 the Respondent, Mr Murray advised Mrs Speirs that her employment was terminated and that she should leave the premises immediately. She received no warnings prior to her termination. The Tribunal ruled that Mrs Speirs was unfairly dismissed and awarded her:
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£21,943 in compensation for unfair dismissal
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£2,560 in holiday pay
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£10,626 for breaching the statutory dismissal and grievance procedures
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£1,080 for failing to provide a statutory statement of employment particulars
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£1,762 in expenses
Comment
This case is significant for two reasons. Firstly, it highlights the importance of providing a written statement of employment particulars to an employee on the commencement of their employment (as contained in s. 1 and s. 4 of the Employment Rights Act 1996). As of 1 October 2004, Tribunals have had the power to award between 2 and 4 weeks pay should employment particulars not be provided. Employers may fall foul of this provision should they lose a contract of employment and an employee subsequently claim never to have received one. Secondly, the case also highlights the amount of damages that tribunals are prepared to award should the statutory dismissal and grievance procedures be breached. Awards can be increased by between 10% and 50% for a breach of the statutory procedures. In this case the tribunal awarded in excess of £10,000 which represented 50% of the compensatory award.
For further information please contact : Pamela Keys
Employment