UK: Employment Update November 2010

Last Updated: 3 November 2010
Article by David Green

The erosion of the "right" to strike?

The last few years have seen an increase in industrial action. Opinions vary on whether this is due to an increasingly militant workforce or as a result of economic conditions which have pushed employers to impose detrimental changes on employees with little or no consultation. Whatever the reason, employers appear more ready to try and prevent strike action by challenging balloting procedures and seeking injunctions. With further cuts proposed in the public sector, the discontent is likely to continue into 2011.

The level of detail required by UK legislation in the balloting process may appear to many to be cumbersome. In this update we focus on the issue in our opinion piece, which will hopefully provoke further thought. We also look at some recent pregnancyrelated cases and focus on pre-employment health questions under the new Equality Act.

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DAVID'S OPINION PIECE

Trade unions – a time for more restraint?

As governments throughout the EU struggle to reduce their budget deficits, public sector workforces are showing willingness to take strike action. The recent election of "Red Ed" as the new leader of the Labour Party has heightened concerns that as a new era of austerity bites within the public sector strike action will become commonplace. A debate has therefore begun on whether it is time for more legislation to curb the power of the trade unions.

Trade unions argue that the UK already has the harshest laws within the EU which encourage employers to bring legal action to prevent industrial action rather than enter into negotiations. They are feeling particularly bruised by the recent spate of case law which indicated the courts are willing to grant injunctions to prevent industrial action where only minor breaches of balloting rules have occurred. However, the unions conveniently forget the recent Court of Appeal decision in BA v Unite where balance was restored with an injunction removed and the Court noting that the legislation is there to ensure fair dealing, not to set traps for unions.

The RMT has also begun a challenge to the UK's balloting requirements in the European Court of Human Rights on the basis that they are so onerous they are incompatible with Article 11 of the European Convention on Human Rights. This effectively will determine whether the provisions of TULRCA stand in the way of the right to freedom of assembly and association.

The CBI is of the view that there needs to be change in two areas. First to ensure that trade unions are not recognised under the statutory recognition procedure without a vote on this issue and second that more militant trade unions cannot rely on a "yes" vote to take industrial action where fewer than 40% of their balloted members vote. Some commentators have even argued that this figure should be 50%. The CBI's concern has arisen out of strikes, such as the recent tube strikes, which have taken place even though only a small percentage of balloted members actually voted in favour of industrial action. Should unions be allowed to take industrial action when it could be argued that a significant part of the workforce has not actually voted in favour of such action? Commentators have also suggested the Government should adopt changes including allowing agency staff to carry out the duties of striking employees, which would reverse restrictions introduced in 2004, and reducing the period of protection from unfair dismissal during a strike from 12 weeks back to 8 weeks.

As the UK sees an increase in strike action resulting from these current economic times this debate is likely to become increasingly heated. The coalition Government is not showing any willingness to change the current law at the moment, perhaps because the Liberal Democrats would oppose this. It would not, however, be surprising if the Government comes under more pressure to take action if industrial action becomes a regular headline over the next few months. The battle lines are being drawn: it remains to be seen whether it will be a war of words or a war led by a change to legislation.

Case highlights

The provisions aimed at the protection of pregnant women at work have recently been examined in two interesting cases:

Can a man be protected by association with a pregnant woman?

In Kulikoaskas v MacDuff Shellfish , the EAT held that it is not possible to bring a sex discrimination claim based on the association with someone else's pregnancy as this is not covered by UK or EU legislation. Mr Kulikoaskas claimed he was dismissed because he told his supervisor that he had helped his partner (who also worked for the same employer) lift heavy weights because she was pregnant. There is debate as to whether this type of claim is covered by the new Equality Act and we will not have a definitive answer until case law settles the point.

Gossip about employee's pregnancy – harassment and discriminatory

The EAT's decision in Nixon v Ross Coates Solicitors is a timely reminder of the problems and consequences of what can happen at office parties. Ms Nixon was seen kissing another employee and disappearing off to a hotel room at the office Christmas party. At the time she was also involved in a relationship with a different employee and when she subsequently informed the managing partner that she was pregnant, there was a lot of speculation and gossip in the office about the paternity of the child. She went off sick, asked to be transferred to another office and resigned when this was refused. A tribunal held that she was constructively dismissed but reduced her compensation by 90% for her contributory conduct. However, it found there was no sex discrimination or harassment. On appeal, the EAT held the tribunal was wrong to reduce her compensation and found that the test for harassment was met as the gossip was unwanted and it related to her pregnancy. She had also been discriminated against.

COMING SOON...

Equality Act: The majority of the Act came into effect on 1 October, and the Equality and Human Rights Commission Code of Practice on Employment was laid before parliament on 12 October – this will come into effect later in the year and has over 300 pages of guidance for employers on steps they should take to ensure they are complying with the Equality Act. For further information on how we can help your organisation comply with the Equality Act 2010 please click here.

Additional paternity leave and pay: New provisions are on course to take effect for those whose babies are due on or after 3 April 2011.

Flexible working: The Government has announced that the right to request flexible working will be extended to all parents of children under 18 from April 2011. A consultation on extending the right and the introduction of a flexible parental leave system will be published later this year.

Focus: Religion or belief

Our increasingly multicultural society brings great diversity and benefits, but also challenges. Workplace religious disputes are regularly in the press - whether it's an employee wanting to wear an item of clothing or jewellery which is important to them as a sign of their faith, or more recently reports of Royal Mail workers in Leeds requesting time off for Eid. The question of what amounts to a "philosophical" belief has also hit the press, with the courts finding that a belief in life after death and the use of mediums was capable of protection.

The protection against discrimination on grounds of religion or belief is now contained in the Equality Act 2010, although the principles are the same as they were under the previous legislation. Basically, direct and indirect discrimination, harassment and victimisation are prohibited. The legislation covers not only employees, but also job applicants, former employees and contract workers.

The legislation itself does not set out the particular issues that employers need to be aware of, but they do need to be familiar with areas of religious observance and practice which could have an impact on workplace issues. If not, employers will be at risk of claims of indirect discrimination. This is where a particular rule, such as a dress code, is applied equally to the entire workplace, but impacts on a particular group because of their beliefs. For example, if no headwear is allowed, this adversely affects those required by their religion to wear a turban. The employer would then have to objectively justify the requirement, which may not always be easy.

An issue that arises at this time of year is how employers should approach annual shutdowns if they plan to close during the Christmas and new year period. Employers planning to do this need to consider whether this creates a particular disadvantage for workers sharing a protected characteristic, who wish to take annual leave at other times, for example during other religious festivals. Whilst operational needs may be a legitimate aim, employers must consider the needs of workers in assessing whether the closure is a proportionate means of achieving the aim.

The key for employers faced with religious or belief based requests is to consider each request individually and to have open and honest communication with the employee. As an employer, careful consideration needs to be given to operational issues, for example, if a request for time off for religious observance is made by a number of employees, then will the business be able to operate effectively during this period?

As an employer you need to find out exactly what the employee wants the time off for – do not be afraid to ask questions and enter into dialogue about this. Employers should then consider their business requirements as well as commitments made to others who have made similar requests and decide whether it is practicable to allow the time off. If it is not, is there some way in which a compromise could be reached? Again, employers should not be afraid of discussing this with the employee concerned.

An employer can refuse a request if it can justify its decision. For example, there was a recent case involving British Airways concerning whether an employee had a right to wear a visible crucifix in breach of uniform policy. This raised interesting questions about whether the personal preference of a believer to wear a cross should be respected where there is no religious requirement to do so. In this case, British Airways was found not to have discriminated against the employee, but received a lot of negative publicity as a result.

PRACTICAL POINTS

  • Provide equal opportunities training and support for managers to enable them to deal sensitively with faith or belief based requests.
  • As an employer, familiarise yourself with commonly practiced faiths to assist with planning and implementing policies and systems (ACAS provide useful guidance).
  • Where a policy or practice is potentially discriminatory, ensure the reasons behind it are carefully and clearly set out so it is clear what the aim is. Consult with the workforce on new policies to tease out potential issues early on.
  • Consider requests fully, communicate and consult with employees to try and reach an acceptable solution to all.

The end of pre-employment health enquiries?

The Equality Act introduces a new provision in relation to pre-employment health enquiries. There was a concern that merely by asking pre-employment health related questions, some people were put off applying for jobs. The Equality Act therefore includes a provision that limits what an employer can ask before offering a position.

An employer should not ask about a job applicant's health until that person has either been offered a job, or has been included in a pool of candidates to be offered a job when a suitable position arises. There are some exceptions and asking health related questions is permissible in the following circumstances:

  • To find out whether a job applicant would be able to participate in an assessment to test his or her suitability for the work;
  • In order to make reasonable adjustments in the recruitment process;
  • To monitor diversity;
  • Where there is an occupational requirement for the applicant to be disabled;
  • To find out if the applicant would be able to undertake a function that is intrinsic to the job.

These are fairly narrow exceptions, and the most difficult area in practice is likely to be the issue of whether a function is "intrinsic" to the role. An obvious example is where manual labour is involved, where a question to ascertain whether the individual is able to undertake that type of work would be permissible, but any other health-related questions would not be permissible.

There will be many grey areas, for example, could questions in relation to stress be asked of candidates for "stressful" jobs?

In practice, whilst ideally employers would look at each case in isolation, in reality this will be time consuming. The Code of Practice produced by the EHRC uses the example of a scaffolding company being permitted to ask applicants questions relating to their ability to climb ladders to a significant height. This clearly envisages very specific questions.

In terms of sanctions, if an applicant is asked a prohibited question and is then not offered the position, a tribunal can draw an inference of discrimination. Additionally, the EHRC can bring proceedings against an employer who is routinely asking prohibited questions. In reality, they are only likely to bring proceedings against large employers.

KEY POINTS TO TAKE AWAY

  • Check any pre-employment health questions you ask are covered by the exceptions to ensure you are not breaching the new provisions of the Equality Act.
  • Check your policies to ensure that you are ready for the changes to additional paternity leave and pay coming in next year.
  • Check that practices you have relating to shut downs and holidays do not breach the provisions on religious discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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