Annual Employment Law update for the Chartered Institute of Personnel Development

1. BARRY SPEKER OBE DL
SENIOR PARTNER
SAMUEL PHILLIPS LAW FIRM
barryspeker@samuelphillips.co.uk
16 and 23 NOVEMBER 2010
CIPD NORTH EAST BRANCH
Newcastle Business School – Northumbria University

2. EQUALITY ACT 2010
Background:
 Discrimination Law Review and Equalities Review 2005
 Fairness and Freedom: Final Report of Equalities Review
2007
 Green Paper June 2007 A Framework for Fairness
 White Paper June 2008 A Framework for a Fairer Future
 Equality Bill introduced April 2009 with further White
Paper A Fairer Future
 Equality Act Royal Assent 8 April 2010

3. KEY CHANGES
 Extension of Definition of Direct Discrimination to cover “associative” and
“perceptive” cases
 Replace “on grounds of” with “because of”
 Harmonise definition of indirect discrimination across all protected
characteristics
 Harmonise justification in discrimination cases as “proportionate means of
achieving a legitimate aim
 Remove requirement for a comparator in victimisation cases
 Harmonise harassment to cover “associative” and “perceptive” cases
 Permits positive discrimination
 Introduction of “combined” discrimination
 Ban on pay secrecy clauses
 Ban on pre-employment health questionnaires before a job offer is made
 Allows equal pay claims to be brought as direct sex discrimination claims
obviating the need for an actual comparator
 GORs for all strands of discrimination
 Changes to victimisation

4. EQUALITY ACT 2010
Consolidates and harmonises existing law:
 The Equal Pay Act 1970
 The Sex Discrimination Act 1975
 The Race Relations Act 1976
 The Disability Discrimination Act 1995
 The Employment Equality (Religion of Belief) Regulations
2003
 The Employment Equality (Sexual Orientation)
Regulations 2003
 The Employment Equality (Age) Regulations 2006
 Part 2 of the Equality Act 2006
 The Equality Act (Sexual Orientation) Regulations 2007

5. EQUALITY ACT –
PURPOSE OF CODE OF PRACTICE
 “The authoritative comprehensive and technical
guide to the detail” of the Act
 Replaces several existing codes and draws on case
law and precedent
 The code can be used in evidence and legal
proceedings brought under the Act
 Tribunals and Courts “must take into account any
part of the code that appears to them relevant to
any questions arising in proceedings”

6. IMPLICATIONS OF THE COALITION GOVERNMENT
 Plan to “review employment and work place laws”
 Emphasis on family friendly policies
 System of flexible parental leave
 Extension of right to request flexible working to all employees
 Aim to promote equal pay and undertake a fair pay review in the public sector
 Tackle unacceptable bonuses in the financial services sector
 New protection for whistleblowers in the public sector
 New right to form employee owned cooperatives
 Phase out the default retirement age
 Limit the application of the Working Time Directive
 Promote de-regulation and reduce red tape
 Review the Agency Workers Regulations
 Rein in the effect of TUPE
 Changes in the Employment Tribunal system and merging with the Courts

7. EQUALITY ACT (Commencement No 4 Savings, Consequential,
Transitional, Transitory and Incidental Provision and Revocation)
Order 2010
Brings majority of Act into force 1.10.10 but not
• Socio-Economic Inequality Duty on Public Authorities
(s.1)
• Dual discrimination (on 2 Protected Categories) (s.14)
• Requirement on private sector employers to publish
gender pay gap information (s.78)
• Positive action in recruitment and promotion (s.159)
• The single public sector equality duty (s.149-157)

8. PROTECTED CHARACTERISTICS (s.4)
 Age
 Disability
 Gender reassignment
 Marriage and civil partnership
 Pregnancy and maternity
 Race
 Religion or belief
 Sex
 Sexual orientation
BUT not genetic pre-disposition 0r Welsh-speaking or
fatism or gingerism!

9. DEFINITION OF PROTECTED CHARACTERISTICS (s.5-12)
 Broadly as before
 “Because of” not “on grounds of”
 Race including caste
 Disability need not involve effect of one or more
“specified capacities.”

10. DIRECT DISCRIMINATION
 S13
“A discriminates against B if, because of a protected
characteristic, A treats B less favourably than he treats or
would treat others.”
 ‘because of’ instead of ‘on the grounds of’ but no practical
difference
 Associative and perceptive discrimination are both covered
within this definition

11. COMBINED DISCRIMINATION
S14(1)
“A discriminates against B if, because of combination of two
relevant protected characteristics, A treats B less favourably
than A treats or would treat a person who does not share
either of those characteristics.”
S14(2)
Protected Characteristics :- age, disability, gender
reassignment, race, religion or belief, sex , sexual
orientation.

12. DISCRIMINATION ARISING FROM DISABILITY
S15(1)
“A discriminates against a disabled person B if :-
(a) A treats B unfavourably because of something
arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate
means of achieving a legitimate aim”
(2) “.... does not apply if A shows that A did not know, and
could not reasonably have been expected to know, that B
had a disability”

13. DISABILITY: PRE-EMPLOYMENT QUESTIONNAIRES
s.60(1) A person (A) to whom an application to work is
made must not ask about the health of the Applicant
(B):-
[a] before offering work to B, or
[b] where A is not in a position to offer work to B
before including B in a pool of Applicants from
whom A intends to select a person to whom to
offer work

14. PRE-EMPLOYMENT QUESTIONNAIRES s.60(6)
Questions may be asked if necessary for the purpose of:-
[a] establishing whether B will be able to comply
with a requirement to undergo an assessment or
establishing whether to make a reasonable
adjustment in connection with the assessment
[b] establish if B can carry out a function intrinsic to
the job
[c] monitoring diversity in range of persons applying
[d] whether the work requires the person to have a
particular disability

15. REINTRODUCTION OF INDIRECT DISABILITY DISCRIMINATION
S19(1)
“A discriminates against another B if A applies to B a provision, criterion
or practice which is discriminatory in relation to a relevant protected
characteristic of B’s.”
(2)a PCP is discriminatory if:-
(a) “A applies, or would apply, it to persons with
whom B does not share the characteristic;
(b) it puts, or would put, persons with whom B shares the
characteristic at a particular disadvantage when
compared with persons with whom B does not share it;
(c) it puts, or would put, B at that disadvantage; and
(d) A cannot show it to be a proportionate means of
achieving a legitimate aim.”

16. DUTY TO MAKE REASONABLE ADJUSTMENTS
 S20(3) - (4)
 Where a PCP or a physical feature puts a disabled person at
a substantial disadvantage, Employer to:-
“take such steps as it is reasonable to have to take to avoid
the disadvantage”
 Employer to take reasonable steps to provide auxiliary aid
to a disabled person who would otherwise be at a
substantial disadvantage without one
 Where this relates to the provision of information, A to
provide the information in a form accessible to B.

17. POSITIVE ACTION
S158
Act does not prohibit Employers from taking any action
which is a proportionate means of achieving a
legitimate aim of:-
(a) overcoming/minimising a shared disadvantage;
(b) meeting a shared need of those with a protected
characteristic; or
(c) enabling/encouraging participation in an activity
*NB Unclear whether Coalition Government will revoke
these provisions.

18. POSITIVE ACTION: RECRUITMENT AND PROMOTION
S159(3)
Employer may treat A more favourably in recruitment or
promotion than B, where A has a protected characteristic
but B does not
(4) ..... only if
(a) A is as qualified as B to be recruited or promoted;
(b) Employer does not have a policy of favourable
treatment; and
(c) It is a proportionate means of achieving a legitimate
aim.

19. OCCUPATIONAL REQUIREMENTS
Replace Genuine Occupational Requirements and General
Occupational Requirements
Schedule 9, Part 1(1)
 Must be a proportionate means of achieving a legitimate
aim
 No contravention of Act to apply requirement (regarding
sex, marital status, sexual orientation etc) if :-
(a) for the purposes of organised religion; and
(b) application is proportionate means of complying with
doctrines of religion or to avoid conflict with strongly
held religious convictions.

20. DISCLOSURE OF PAY INFORMATION
S77(1)
A term that purports to prevent/restrict disclosure of pay
information about the terms of a person’s work is
unenforceable.
(2) A term that purports to prevent/restrict P from seeking
disclosure of pay information from a colleague/former
colleague is unenforceable.

21. EQUAL PAY
s.69 Defence of Material Factor
[1] A sex equality clause in A’s terms has no effect in
relation to difference between A’s and B’s terms if the
responsible person shows that the difference is because of
a material factor reliance on which:
[a] does not involve treating A less favourably because of
A’s sex than the responsible person treats B, and
[b] if the factor within sub-section (2) is a
proportionate means of achieving a legitimate aim
[2] Are persons A and persons of same sex at a particular
disadvantage when compared with persons of the
opposite sex doing work equal to A’s?

22. EQUAL PAY
No hypothetical comparators.
There must be an identifiable colleague of the opposite
sex performing equal work

23. GENDER PAY REPORTING
 S78
“Regulations may require employers to publish information
relating to the pay of employees for the purpose of showing
whether ... There are differences in the pay of male and
female employees.”
 Employers with 250 + employees from 2011
*NB unlikely to come into force under new Coalition
Government

24. PUBLIC SECTOR SOCIO-ECONOMIC DUTY
S1
“when making decisions of a strategic nature about how to
exercise functions, have due regard to the desirability of
exercising them in a way that is designed to reduce the
inequalities of outcome which result from socio-economic
disadvantage.”
 applies to Government Ministers and departments, Local
Authorities, NHS Trusts
*NB Unlikely to come into force under Coalition
Government

25. EMPLOYMENT TRIBUNAL: REMEDIES
S124
a new power to make a “Recommendation” to
obviate/reduce adverse effect on
(a) the complainant
(b) any other person.
 Recommendations are not enforceable.
S124(7)
failure to comply may result in increased award of
compensation.

26. NATIONAL MINIMUM WAGE
Increases from 1 October:
Standard (Adult) rate (workers over 21) £5.93 (rising
from £5.80)
Development rate (workers aged between 18 and 20)
£4.92 (rising from £4.83)
Young workers rate (workers aged under 18 but above
the compulsory school age who are not apprentices)
£3.64 (rising from £3.57)

27. CONDUCT OF EMPLOYMENT AGENCIES AND EMPLOYMENT
BUSINESSES (AMENDMENT) REGULATIONS 2010
 In force from 1 October 2010
 Restructure the existing Regulations on obtaining work
seekers’ consent to terms before providing service
 Modify the suitability checks that employment businesses
and employment agencies must carry out on work seekers
 Provide that advertisements for jobs no longer have to state
whether the advertiser is an employment agency or an
employment business but must state whether the position
is permanent or temporary
 Introduce 30 day cooling off period applicable to
performers

28. NEW PROCEDURE FOR COT3
 From 1 October 2010 new streamlined process to allow
enforcement of un-honoured settlements
 Employees can instruct a High Court Enforcement
Officer to issue proceedings for a Writ of Fieri Facais
 New Form N471A for use in the Courts

29. LEGISLATION ON HOLD OR UNDER REVIEW
 Additional paternity leave and pay regulations
were to come into force in April 2011
 Agency Worker Regulations were to come into
force on 1 October 2011
 Vetting and barring scheme. This is to be
remodelled
 Right to request time off for training subject to
consultation
 Employment of children under review

30. FORTHCOMING CASES
 Age Discrimination: Can an employer dismiss an employee
to avoid paying enhanced pension?
“Woodcock –v- Cumbria Primary Care Trust”
 Can the buyer of a pre-packed business in administration
avoid the automatic transfer of employees?
“Olds –v- Late Editions Ltd
 Employment status: “Sham” contractual documentation
stating individuals are self-employed.
Appeal before the Court – “Autoclenz –v- Belcher and
Others” and “Alstom Transport –v- Tilson”

31. Samuel Phillips Law Firm

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Samuel Phillips Law Firm
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