SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. SETTING UP AN ORGANISATION
Ch.1: Trusts & unincorporated associations
Ch.2: Companies & other incorporated structures
Ch.3: Charitable status, charity law & regulation
Ch.4: The objects clause
Ch.5: The governing document
Ch.6: Setting up an organisation
Ch.7: Registering as a charity
Ch.8: The organisation's name
Ch.9: Branches, subsidiaries, partnerships & mergers
II. GOVERNANCE & MEMBERSHIP
Ch.10: Members of the organisation
Ch.11: Members of the governing body
Ch.12: Officers, committees & sub-committees
Ch.13: Duties & powers of the governing body
Ch.14: Restrictions on expenses, remuneration & benefits
III. RUNNING AN ORGANISATION
Ch.15: The registered office and other premises
Ch.16: Paperwork requirements
Ch.17: Meetings & decision making
Ch.18: Legal agreements
Ch.19: Organisational & personal liability
Ch.20: Insurance
Ch.21: Financial difficulties & winding up
IV. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.22: Employees and other workers
Ch.23: Rights, duties & the contract of employment
Ch.24: Model contract of employment
Ch.26: Taking on new employees
Ch.27: Pay & pensions
Ch.28: Working time & leave
Ch.29: Disciplinary matters, grievances & whistleblowing
Ch.30: Termination of employment
Ch.31: Redundancy
Ch.32: Employer-employee relations
Ch.33: Employment claims & settlement
Ch.34: Self-employed workers & other contractors
Ch.35: Volunteers
V. SERVICES & ACTIVITIES
Ch.36: Health & safety
Ch.37: Equal opportunities in provision of goods & services
Ch.38: Confidentiality, privacy, data protection & freedom of information
Ch.39: Intellectual property
Ch.40: Publications & publicity
Ch.41: Campaigning & political activities
Ch.42: Public gatherings & entertainment
Ch.43: Food & drink
VI. FUNDING & FUNDRAISING
Ch.44: Funding & fundraising: General rules
Ch.45: Fundraising activities
Ch.46: Tax-effective giving
Ch.47: Trading companies
Ch.48: Contracts & service agreements
VII. FINANCE
Ch.49: Financial procedures & records
Ch.50: Annual accounts, reports & returns
Ch.51: Auditors
Ch.52: Corporation tax, income tax & capital gains tax
Ch.53: Value added tax
Ch.54: Investment & reserves
Ch.55: Borrowing
VIII. PROPERTY
Ch.56: Land ownership & tenure
Ch.57: Acquiring & disposing of property
Ch.58: Business leases
Ch.59: Property management & the environment
IX. BACKGROUND TO THE LAW
Ch.60: How the law works
Ch.61: Dispute resolution & litigation
 UPDATED INFORMATION FOR CHAPTER 25:
VOLUNTARY SECTOR LEGAL HANDBOOK

This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.

Chapter 25
EQUAL OPPORTUNITIES
IN EMPLOYMENT

EQUALITY & HUMAN RIGHTS COMMISSION

Updated 30/3/08. This information updates chapter 25 in The Voluntary Sector Legal Handbook 2nd edition.
From 1 October 2007 the Equality and Human Rights Commission replaces the Commission for Racial Equality, Equal Opportunities Commission and Disability Rights Commission. The EHRC promotes and enforces all of the equality "strands": race, sex, disability, religion or belief, sexual orientation and age. It promotes human rights but does not have enforcement powers in relation to human rights. The EHRC's website is at www.equalityhumanrights.com.

The Equality Act 2006, which set up the EHRC, is at www.opsi.gov.uk/acts/acts2006/20060003.htm.
Explanatory notes are at www.opsi.gov.uk/acts/en2006/2006en03.htm.

CONSULTATION ON SINGLE EQUALITY ACT

Updated 30/3/08. This information updates chapter 25 in The Voluntary Sector Legal Handbook 2nd edition.
Consultation took place until 4 September 2007 on bringing together all the equalities strands (called, in this context, protected groups) into a Single Equality Act, removing the disparities between the different equality laws and extending some of the protections. It was originally expected that this would be included in the parliamentary timetable for 2007/08, but it has been postponed until 2008/09.

The suggestions include:

  • harmonising the definition of indirect discrimination, and extending indirect discrimination protection;
  • having the same approach to victimisation in discrimination law as in employment law;
  • possibly introducing provision for a genuine service requirement, in addition to the current genuine occupational requirement provision;
  • bringing equal pay within the Single Equality Act;
  • extending the provisions that allow targeted services to meet some groups' needs in relation to education, training, welfare or other benefits;
  • replacing the different justification tests in disability discrimination law with a single objective justification test;
  • simplifying the definition of disability by removing the list of capacities in "normal day-to-day activities"
  • requiring landlords of residential premises to make reasonable adaptations to the communal areas to enable a disabled resident to use the premises, but at the disabled person's expense;
  • extending age discrimination to provision of goods, services and facilities, and how this would work without creating unintended consequences or disproportionate burdens;
  • clarifying the current race, disability and gender equality duties which apply to public authorities, and possibly extending them to cover age, sexual orientation and/or religion or belief;
  • introducing an 'equality check tool' for private [and, by extension, voluntary] sector organisations.

RIGHTS OF CIVIL PARTNERS

Updated 16/12/05. This information updates various sections in The Voluntary Sector Legal Handbook 2nd edition.
The Civil Partnership Act 2004 came into effect on 5 December 2005, and from 21 December 2005 same-sex couples can register a civil partnership giving rights and responsibilities comparable to marriage.

In relation to employment rights:

  • The Sex Discrimination Act provisions making it unlawful to discriminate in employment against married people have been amended to include civil partners as well.
  • Partners, whether same sex or different sex, already had the same rights as spouses in relation to paternity leave, statutory paternity pay, adoption leave, statutory adoption pay and the right to request flexible working. So registering a civil partnership does not make any difference to eligibility for these rights, but makes it easier to prove that one is a partner.
  • A civil partner is classed as a dependant in relation to the right to take reasonable time off to deal with emergencies relating to dependants. Civil partners would probably have counted as dependants anyway, but it is now explicit.
  • Civil partners must be given the same benefits that spouses are entitled to. This applies to contractual benefits such as private health care, as well as informal or extra benefits such as time off to get married.
  • The Employment Equality (Sexual Orientation) Regulations 2003 allow benefits such as pensions to be granted only to employees who are married. This will remain the case for rights accrued or periods of service before 5 December 2005. From that date civil partners must be given the same rights as married employees, and the Regulations have been amended to allow benefits such as pensions to be granted only to employees who are married or civil partners.
  • The Employment Equality (Sexual Orientation) Regulations 2003 are also amended to include discrimination on the basis that an employee is in a civil partnership.
All employers should review employment contracts and policies and ensure all benefits available to married employees are available to employees who enter a civil partnership. Forms and other documents should also be reviewed. Any reference to spouse should be amended to include civil partner, and any reference to marriage or married should include civil partnership.

Employees have no legal duty to notify their employer that they have entered a civil partnership, but some may want to do so in order to claim relevant employment benefits. Employers should maintain confidentiality where employees want it, so that assumptions are not made about a person's sexual orientation by an unwanted disclosure that they have entered a civil partnership.

The Civil Partnerships Act is at www.opsi.gov.uk/acts/acts2004/20040033.htm.

EQUAL OPPORTUNITIES - GENERAL INFORMATION

Updated 22/3/06.
The TUC's Guide to equality law (171 pages), published in December 2004, is at www.tuc.org.uk/extras/equalitylawguide.pdf or available from 020 7467 1294.

ACAS revised its Tackling discrimination and promoting equality--Good practice guide for employers in March 2005. This contains a sample equality policy, and checklists on how to avoid discrimination. It is at www.acas.org.uk/media/pdf/r/e/B16_1.pdf or available from 08457 474747.

Specifically on the religion or other belief and sexual orientation regulations, the National Council for Voluntary Organisations and the Black Training and Enterprise Group published in March 2005 Making Equality Simple, a guide for voluntary organisations.

I am not aware of any books on equal opportunities specifically for voluntary organisations. But an inexpensive, easily readable general book is The Equal Opportunities Handbook: How to deal with everyday issues of unfairness by Phil Clements and Tony Spinks. The fourth edition, published by Kogan Page in December 2005, costs £17.99. It covers not only the law, but also provides practical guidance. Details are at www.kogan-page.co.uk.

EQUAL OPS GENERAL CHANGES

Updated 22/3/06. This information updates s.25.1.1 in The Voluntary Sector Legal Handbook 2nd edition.
Under EU equal treatment directives the UK had to, or will have to, implement new legislation:

  • outlawing all discrimination (not only in employment) on the basis of race, ethnic origin and national origin (by 19 July 2003);
  • outlawing discrimination in employment on the basis of religion or other belief and sexual orientation (by 2 December 2003);
  • making some changes in relation to sex discrimination in employment (by 5 October 2005);
  • outlawing discrimination in employment on the basis of age (by 2 December 2006).
The directives have brought in major changes in relation to existing equality legislation (race, sex and disability) and the new legislation (religion or other belief, sexual orientation and age). These include:
  • New definition of indirect discrimination. "Requirement or condition" is being changed to "a provision, criterion or practice" which puts people of a particular group at a disadvantage and is not justified in relation to the job.
  • New statutory definition of harassment as unwanted conduct based on race (or sex, age etc) which has the purpose or effect of violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
  • Shifting the burden of proof. This means that once the person bringing the claim has shown that he or she was less favourably treated, it falls to the employer or other person accused of discrimination to show that the reason for the less favourable treatment was not discriminatory.
  • Genuine occupational requirement provisions will allow discrimination in favour of a particular group where it is a genuine requirement for the post. GOR will replace the current genuine occupational qualification (GOQ) provisions in the race and sex legislation.
  • Post-employment discrimination is being made unlawful, for example an employer refusing to write a reference for a reason connected with race, sex etc.

CHARITY CHIEF EXECUTIVE REQUIRED TO PAY DISABILITY COMPENSATION

Added 3/4/08. This information updates s.25.1 in The Voluntary Sector Legal Handbook 2nd edition.
Claims for discrimination can be brought not only against the employer, but also against individual workers who have carried out discriminatory acts or instructed or induced others to do so. In a case in 2007, the chief executive of a charity for deaf people was personally required to pay compensation to an employee, a sign language teacher with severe hearing impairment, after persistently refusing to use sign language in her presence. The teacher resigned, bringing claims for less favourable treatment and harassment on grounds of disability and constructive unfair dismissal against the charity, its chief executive and her supervisor. The charity and supervisor reached an amicable settlement with the employee, but the chief executive did not and was required by the tribunal to pay her £2,310 for injury to feelings. Awards against individuals are unusual in discrimination cases, but they can and do happen/

Fletcher v Walsall Deaf People’s Centre & others was in the employment tribunal so is not reported on legal websites, but information can be found through Google or other search engines.

PERSONAL LIABILITY FOR ENCOURAGING DISCRIMINATION

Added 25/8/06. This information adds to s.25.1.3 in The Voluntary Sector Legal Handbook 2nd edition.
Normally an employer--but not another employee--is liable for the discriminatory acts of employees. But under s.42 of the Sex Discrimination Act 1975, a person who knowingly aids another person to commit acts of unlawful sex discrimination is treated as himself or herself doing those acts. This is what happened in the case of Ms M Miles and Ms Gilbank, where the employer, Quality Hairdressing Ltd, and Miles, a manager, were found jointly and severally liable for discriminating against Gilbank because she was pregnant.

The court of appeal said that Miles had encouraged "an inhumane and sustained campaign of bullying and discrimination which could not ... be reasonably seen to have been accidental or merely insensitive. It was targeted, deliberate, repeated and consciously inflicted". Miles was thus held liable, along with the employer, for discriminatory acts carried out by employees within that environment.

Other equal ops legislation has similar provisions on aiding unlawful acts.

The decision in Miles v Gilbank, handed down on 11 May 2006, is at www.bailii.org/ew/cases/EWCA/Civ/2006/543.html.

RACE EQUALITY

Updated 25/11/05. This information updates ss.25.2 and 37.2 in The Voluntary Sector Legal Handbook 2nd edition.
The Commission for Racial Equality's new code of practice on racial equality in employment, to update the one which came into force in 1984, was published on 24 November 2005 and can be downloaded at www.cre.gov.uk/downloads/employmentcode.pdf. The new code outlines employers' legal obligations under the Race Relations Act and contains general advice on policies needed to safeguard against discrimination and harassment, as well as more detailed recommendations on procedures and practice.

Employment tribunals will take its recommendations into account in any legal proceedings under the Race Relations Act brought on or after 6 April 2006. Until that date, the old code, which is at www.cre.gov.uk/gdpract/employ_cop.html, remains in effect.

The Race Relations Act 1976 (Amendment) Regulations 2003 came into effect on 19 July 2003. They include new definitions of indirect discrimination and harassment, a new genuine occupational requirement provision, changes to the burden of proof, and provisions in relation to post-employment discrimination. In addition to employment, they also cover discrimination in relation to social protection, education, and provision of goods and services. The regulations and explanatory notes are at www.opsi.gov.uk/si/si2003/20031626.htm.

These changes apply at the moment only to race discrimination on the basis of race, ethnic origin and national origin. They do not apply to discrimination on the basis of colour or nationality. This is because UK regulations cannot go beyond what is in the EU directive, and the directive covers only race, ethnic origin and national origin. If the UK wants the new provisions to cover colour and nationality as well, it will have to enact new primary legislation--and it did not leave enough time to do this before 19 July 2003.

Under the Race Relations (Amendment) Act 2000, public authorities and organisations which provide services on their behalf must "have due regard for the need to eliminate unlawful discrimination and promote equality of opportunity and good race relations". This means they must consider the racial equality implications of all relevant activities (including the implications of grant cuts), and take active steps to promote racial equality. Organisations which receive public sector funding or carry out activities in partnership with public bodies are increasingly being required under grant or contract conditions to implement new procedures for recruiting staff and service users, monitoring, etc.

The Commission for Racial Equality code of practice on implementation of the 2000 Act came into effect on 31 May 2002. Information about the Act and the code of practice is available from www.cre.gov.uk, and on 8 September 2004 the CRE launched a race equality impact assessment website to help public bodies and other organisations implement good practice in promoting race equality. The website is at www.cre.gov.uk/duty/reia/index.html.

DISCRIMINATION AGAINST BNP MEMBERS
IS NOT RACE DISCRIMINATION

Updated 6/6/06. This information adds a new section to s.25.2.3 in The Voluntary Sector Legal Handbook 2nd edition.
The Court of Appeal ruled on 25 May 2006 that a "perfectly satisfactory" employee who was dismissed after being elected as a BNP councillor was not discriminated against on racial grounds. The decisions overturns an employment appeal tribunal decision which said that the employee, A C Redfearn, had been discriminated against on racial grounds.

Redfearn was employed by Serco Ltd, operating as West Yorkshire Transport Service, as a driver and passenger escort for passengers with physical and learning disabilities in the Bradford area. More than 70% of passengers and about 35% of the company's employees are Asian.

The employment tribunal originally said in February 2005 that he had been dismissed for health and safety reasons, because of a fear of violence in the workforce arising from his political beliefs, rather than because of direct discrimination on racial grounds under the Race Relations Act 1976. However the employment appeal tribunal said on 27 July 2005 that under the principles in the 1984 Showboat Entertainment Centre Ltd v Owens case, the phrase "on racial grounds" must be interpreted widely, and includes even situations which are not based on a particular individual's race.

The EAT decision brought discrimination on the basis of political belief in through the back door of race discrimination. But the Court of Appeal said the fact that racial issues are involved in a decision does not mean that the decision is made on racial grounds as defined in the Race Relations Act.

To view Serco Ltd v Arthur Redfearn go to www.bailii.org/ew/cases/EWCA/Civ/2006/659.html.

OVERHEARD COMMENTS CAN BE RACE DISCRIMINATION

Added 25/8/06. This information adds to s.25.2.3 in The Voluntary Sector Legal Handbook 2nd edition.
A Maltese employee of HSBC who overheard her manager saying she would vote for Robert Kilroy-Silk in the 2005 general election "because he would get rid of foreigners" won a case of racial discrimination against the manager and HSBC in July 2006. This is one of the first cases where a comment not made directly to the person has been held to be discriminatory.

Ruby Schembri v HSBC & D Jones was at employment tribunal so is not reported.

SEX DISCRIMINATION AND SEXUAL HARASSMENT

Updated 22/3/06. This information updates s.25.2 and 36.4.5 in The Voluntary Sector Legal Handbook 2nd edition.
The Equality Act 2006 will from 6 April 2007 require public authorities to take a more active approach to preventing sex discrimination in the exercise of public functions and promoting equality of opportunity between men and women (this is referred to as "gender duty"). Although gender duty will not directly apply to voluntary organisations, it is likely to be made a condition of contracts or partnership arrangements with, or grant aid from, public bodies.

The Equality Act 2006 is at www.opsi.gov.uk/acts/acts2006/20060003.htm.
Explanatory notes are at www.opsi.gov.uk/acts/en2006/2006en03.htm.

Under European provisions which were implemented in the UK on 1 October 2005, there is for the first time a statutory definition of sexual harassment and sex-based harassment. There are also a revised genuine occupational requirement provision, an updated definition of indirect discrimination, and explicit rights in relation to discrimination on the basis of pregnancy and maternity leave.

The sexual harassment provisions apply to sex based harassment (based on the victim's sex), harassment of a sexual nature (physical activity of a sexual nature, or non-physical activity of a sexual nature such as lewd jokes or comments), sexual harassment on grounds of gender reassignment status, and harassment on the grounds of rejection of, or submission to, harassment.

The Employment Equality (Sex Discrimination) Regulations 2005 are at www.opsi.gov.uk/si/si2005/20052467.htm.

Under the Civil Partnership Act 2004, the Sex Discrimination Act provisions making it unlawful to discriminate in employment against married people have been extended, from 5 December 2005, to apply to civil partners as well.

Under the Sex Discrimination Act 1975 (Amendment) Regulations 2003, which came into effect on 19 July 2003, post-employment discrimination on the basis of sex is unlawful. These regulations are at www.opsi.gov.uk/si/si2003/20031657.htm.

The Equal Opportunities Commission has set up a website for legal advisors at www.eoc-law.org.uk, covering sex discrimination and equal pay.

GENDER EQUALITY DUTY

Updated 30/3/08. This information updates s.25.2.2 and 37.4.5 in The Voluntary Sector Legal Handbook 2nd edition.
From 6 April 2007 the Equality Act 2006 requires public authorities to take a more active approach to eliminating sex discrimination and harassment in the exercise of public functions, and promoting equality of opportunity between men and women. Although this gender equality duty does not directly apply to voluntary organisations, it is likely to be made a condition of contracts or partnership arrangements with, or grant aid from, public bodies.

Guidance and codes of practice on the gender, race and disability equality duties, from the Equality and Human Rights Commission website, can be accessed via tinyurl.com/36pp5b.

The Act is at www.opsi.gov.uk/acts/acts2006/20060003.htm.
Explanatory notes are at www.opsi.gov.uk/acts/en2006/2006en03.htm.
The Sex Discrimination Act 1975 (Public Authorities)(Statutory Duties) Order 2006, listing the bodies covered by the duty, is at www.opsi.gov.uk/si/si2006/20062930.htm.

SEX DISCRIMINATION AND IVF

Added 31/3/08. This information updates s.25.2 in The Voluntary Sector Legal Handbook 2nd edition.
In a decision on 26 February 2008, the European Court of Justice said that a woman is not entitled to protection under the EU Pregnant Workers Directive (and, by extension, the UK's pregnancy discrimination legislation) if she is undergoing IVF but has not yet had fertilised eggs implanted. However, the ECJ said that because IVF is provided only to women, dismissal because a woman is undergoing IVF would be direct sex discrimination.

The decision in Mayr v Backerei und Konditorei Gerhard Flockner can be accessed via tinyurl.com/ysvn75.

GAPS IN THE SEX DISCRIMINATION REGULATIONS

Added 4/7/07. This information updates s.25.2 and 37.4.5 in The Voluntary Sector Legal Handbook 2nd edition.
The high court ruled on 12 March 2007 that the Employment Equality (Sex Discrimination) Regulations 2005 do not properly implement the European Equal Treatment Directive. In particular the definition of harassment is too narrow and does not give protection from harassment by clients even when the employer knows about it and could take steps to prevent it, but doesn't do so.

Some rights during maternity leave are unclear, for example whether a woman is protected if she is not consulted about a change to her job while she is on maternity leave, or if she loses time towards promotion because she is on additional maternity leave, which is excluded from length of service.

Before the regulations, pregnant women did not have to show they had been treated worse than they would have been before they were pregnant. But under the new regs they have to have a comparator, which — the court agreed — is not always appropriate because pregnancy involves special protections which a non-pregnant woman would not need (for example, the need for a risk assessment).

Unless the government is going to challenge this further, it will have to bring in new legislation.

The decision in Equality Opportunities Commission v DTI is at www.bailii.org/ew/cases/EWHC/Admin/2007/483.html.

DRESS CODES AND SEX DISCRIMINATION

Updated 8/3/04. This information adds to s.25.2 in The Voluntary Sector Legal Handbook 2nd edition.
In June 2003 an employment tribunal in Manchester upheld a claim that a JobCentre employee was a victim of sex discrimination because his female colleagues were allowed to wear t-shirts but men had to wear a collar and tie. Following the decision, 6,950 male workers made similar claims. In November 2003 the employment appeal tribunal overturned the decision--not necessarily because it was legally incorrect, but because the employment tribunal had failed to consider "the overall context of the code as a whole". The EAT sent the case back to the employment tribunal for reconsideration. In the meantime, organisations with dress codes should ensure they are comparable for men and women.

TRANSSEXUAL EMPLOYEES

Added 10/3/05. This information adds a new section in s.25.2 in The Voluntary Sector Legal Handbook 2nd edition.
TLT Solicitors published on 7 February 2005 a useful two-page guide for employers on meeting the requirements of the Gender Recognition Act 2004 (which came into effect on 4 April 2005), Sex Discrimination Act and Data Protection Act in relation to employees who have gender dysphoria or who have undergone, are undergoing or are preparing to undergo gender reassignment. The guidance sets out the questions that employers should ask employees, and emphasises that information about individuals is "protected information" under the Gender Recognition Act and "sensitive personal data" under the Data Protection Act.

The guide is at http://www.tltsolicitors.com/legal-update/Employment-Law-Online-Update/2005/P6079.asp.

CHANGE IN SEXUAL AND SEX HARASSMENT RULES

Added 31/3/08. This information updates s.25.2.5 in The Voluntary Sector Legal Handbook 2nd edition.
Until recently, a claim of sexual or sex harassment could be made only if the harassment was linked to the sex of the person making the claim. From 6 April 2008 this is changed, and a claim of harassment can be made by anyone, regardless of their sex and regardless of whether they were the intended target of the harassment. This enables a witness to the harassment (for example, a worker who feels offended, intimidated or degraded by having to watch or listen to offensive behaviour towards a colleague, or having to listen to sexually offensive jokes) to make a claim even if the intended target does not do so.

Also from 6 April 2008 it is unlawful for an employer to fail to take reasonably practicable steps to protect workers from sexual or sex harassment by third parties, where such harassment is known to have occurred on at least two previous occasions. The previous harassments do not have to have been by the same person. It is imperative for employers to ensure they make clear to clients, service users, customers, visitors, contractors and anyone else that sexual harassment, harassment on the basis of sex, and any other harassment will not be tolerated. [See also Liability for harassment by clients/service users for an employment appeal tribunal decision about racial harassment by clients.]

Harassment is unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Sex harassment is related to the sex of the person claiming harassment or the sex of another person (for example, making derogatory comments about women or men). Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. Harassment also occurs when a worker is treated less favourably because they have rejected or submitted to such conduct.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 are at www.opsi.gov.uk/si/si2008/uksi_20080656_en_1.

SEXUAL HARASSMENT GUIDELINES

Added 25/8/06. This information adds to s.25.2.5 in The Voluntary Sector Legal Handbook 2nd edition.
To coincide with the 20th anniversary of the landmark case which established sexual harassment as a form of harassment under the Sex Discrimination Act, the Equal Opportunities Commission has updated its basic guidance for employers and has issued detailed guidance for managers. The detailed guidelines cover the legal position from the employer's point of view, procedures to prevent harassment occurring, and how to deal with complaints. Both documents are at http://www.eoc.org.uk/Default.aspx?page=15399.

LIABILITY FOR HARASSMENT BY CLIENTS/SERVICE USERS

Added 30/3/08. This information updates s.25.2.5 in The Voluntary Sector Legal Handbook 2nd edition.
A local authority housing officer, who is herself white British, successfully brought a claim for racial harassment against her employer after having to listen to customers make racist comments and use language such as 'Paki'. Not only did the local authority have no procedures in place to deal with such comments, but its explicit policy was that racist comments or behaviour by customers should be ignored and should not be challenged.

Gravell v London Borough of Bexley is at www.bailii.org/uk/cases/UKEAT/2007/0587_06_0203.html .

Action. By now, most employers should have in place clear policies on racist, sexist, homophobic and other unacceptable comments and behaviour by employees and volunteers. It is important to ensure that equally robust policies and procedures are in place in relation to comments and actions by clients, service users and others. See also Changes in sexual and sex harassment rules for statutory obligations relating to such harassment by third parties.

COMPARATOR FOR PREGNANCY DISCRIMINATION

Added 31/3/08. This information updates s.25.2.6 in The Voluntary Sector Legal Handbook 2nd edition.
Since 2005, a woman claiming discrimination on the basis of pregnancy/maternity has had to show that she was being treated less favourably than she would have been if she were not pregnant or on maternity leave. The was not always feasible, so from 6 April 2008 there does not need to be a comparator in order to claim pregnancy/maternity discrimination.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 are at www.opsi.gov.uk/si/si2008/uksi_20080656_en_1.

PAY BASED ON LENGTH OF SERVICE

Updated 9/10/06. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
A warning not to believe what you read in the newspapers, especially the Guardian front page headline on 4 October 2006 saying that the European Court of Justice had ruled that higher pay for long service is illegal. The ECJ did no such thing.

In its decision in Cadman v Health & Safety Executive, it said that rewarding long service that enables a worker to perform his or her duties better is a legitimate business objective, and generally an employer does not have to show that length of service increases are an appropriate way to achieve this objective. The need to justify them arises only if a worker "provides evidence capable of raising serious doubts" that the longer service is enabling workers to do their duties better.

The ECJ also said that "where a job classification system based on an evaluation of the work to be carried out is used in determining pay, there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better".

The case involved a woman who had been promoted, but was being paid up to £9000 per year less than male colleagues in the same grade because they had been working for longer. She argued that this breached the Equal Pay Act because women are more likely than men to have career breaks.

Following the ECJ decision, the case will go back to the court of appeal for a decision on whether it was appropriate for her employer to use length of service in setting pay levels.

The ECJ decision is at www.bailii.org/eu/cases/EUECJ/2006/C1705.html.
For a very clear briefing by TLT Solicitors on the decision and its implications for employees and employers, click here (the address is too long to show on screen).

Different issues could arise, of course, if a similar case were brought under the new age discrimination regulations rather than under equal pay legislation. But even under the age regulations, pay based on length of service is allowed for employees with less than five years' service with the employer, and is allowed for longer-serving employees if the pay differentials meet a legitimate business objective.

EQUAL PAY CLAIMS AND THE GRIEVANCE PROCEDURE

Added 3/2/08. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
The employment appeal tribunal ruled on 18 December 2007 that equal pay claims must follow the statutory grievance procedure, the comparator must be referred to when bringing the grievance, and any comparator referred to later in the claim must be materially the same as the one referred to in the initial grievance letter.

The decision in Highland Council v TGWU Unison First and others is at www.bailii.org/uk/cases/UKEAT/2007/0020_07_1812.html.

EQUAL PAY COMPARATOR CAN BE SUCCESSOR

Added 27/2/07. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
In most equal pay cases, the comparator is doing the same work or work of equal value at the same time as the claimant. But a case in 2006 is a reminder that since a decision in 1996, a successor is also a valid comparator.

Bridget Bodman, a group accountant at API Group, a manufacturing company, was promoted to financial controller and discovered that her (male) successor as group accountant was being paid £8000 more than she had been and also had an £8640 car allowance. Because the employer could not justify the difference in salary and benefits, the employment tribunal awarded Bodman £25,000. The case illustrates the importance of carrying out equal pay reviews and ensuring transparency in pay and benefits.

The Equal Opportunities Commission's press release about the case is at www.eoc.org.uk/Default.aspx?page=19865.

EQUAL PAY CLAIMS ARISING FROM JOB EVALUATION

Added 14/5/07. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
Normally, an equal pay claim involving like work or work of equal value can be backdated six years. But the employment appeal tribunal ruled on 23 March 2007 that where jobs are rated as equivalent under a job evaluation scheme, a claim can be backdated only to the date of the job evaluation study.

In the same case the EAT said that an employee who has already brought an equal pay claim—whether successfully or unsuccessfully—can bring a new claim in relation to the same period, but with a different comparator. The decision in Bainbridge & others v Redcar & Cleveland Borough Council (no.3) is at www.bailii.org/uk/cases/UKEAT/2007/0424_06_2303.html.

CIPD FACTSHEET ON EQUAL PAY

Added 14/5/07. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
CIPD's new factsheet on equal pay, published in April 2007, provides an overview of equal pay legislation, problem areas, and good practice. It is at www.cipd.co.uk/subjects/dvsequl/equpay/eqpay.

EQUAL PAY UPDATE

Updated 17/11/03; links updated 22/12/05. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
The Equal Opportunities Commission's revised code of practice on equal pay came into force on 1 December 2003. It takes account of new law and recent equal pay case decisions (see below), and provides practical guidance on equal law and good practice. It is available from the EOC on 0845 601 5901 or at www.eoc.org.uk/default.aspx?page=15577&lang=en.

Since 6 April 2003, equal pay questionnaires (EPQ) can be served under the Equal Pay Act to help employees who believe they are being underpaid find out the facts, and to help employers resolve equal pay complaints in the workplace. If an employer does not respond within eight weeks, or responds evasively or ambiguously, an employment tribunal can draw an inference that discrimination has occurred. Information about the equal pay questionnaire is at www.womenandequalityunit.gov.uk/pay/update_question.htm. The Equal Opportunity Commission's equal pay kit to help employers do a pay review is at www.eoc.org.uk/default.aspx?page=15383.

Data protection concerns have been raised about the questionnaire, so it is advisable for employers to obtain the consent of third party employees (those who will or may be used as comparators) before disclosing information about their pay. In most cases legal advice should be sought before seeking third party consent or disclosing information. Once tribunal proceedings have been started, an order for disclosure of pay can be requested from the tribunal.

The Equal Pay Act 1970 (Amendment) Regulations 2003 came into force on 19 July 2003. Their main changes are:

  • The limit of two years' back pay has been removed. In standard cases it can now go back six years from the date of commencement of proceedings.
  • The six-month period from the end of employment during which a claim must be brought is extended if the employer deliberately conceals relevant facts or if the individual concerned was "under a disability" (which in this context means under age 18 or mentally incapable).
  • "Arrears date" and "qualifying date" are redefined.
The regulations are at www.opsi.gov.uk/si/si2003/20031656.htm.

EQUAL PAY

Added 10/8/05. This information updates s.25.4 in The Voluntary Sector Legal Handbook 2nd edition.
Under the Equal Pay Act 1970 women and men must be paid the same for like work or work of equal value. But what about if a woman does more work than a man, and is paid less? In Sita (UK) Ltd v Hope Mrs Hope was promoted to a managerial post previously held by a man. She was paid less, even though she was doing more work because unlike her predecessor, she did not have a deputy. In a decision on 8 March 2005, the employment appeal tribunal stated that the fact that a women is doing more work, rather than like work, cannot be used to justify paying her less.

To view Sita (UK) Ltd v Hope go to www.bailii.org/uk/cases/UKEAT/2005/0787_04_0803.html.

DISABILITY RESOURCES

Updated 27/2/07, link updated 4/5/07. This information updates s.25.5 in The Voluntary Sector Legal Handbook 2nd edition.
Recent resources on good practice in relation to illness and disability in employment include:

  • Cancer and working: Guidelines for employers, HR and line managers was published by CIPD, Cancerbackup and the Working with Cancer group in November 2006. It covers first steps, maintaining employee involvement and engagement during treatment, returning to work, giving up work after cancer, death from cancer and legal aspects, and includes a cancer policy template. It is at www.cipd.co.uk/subjects/health/general/_cncrwrkg.htm.
  • Action on Stigma: Promoting mental health, ending discrimination at work, produced by the Department of Health in October 2006, sets out six basic principles for reducing mental ill health and work and ensuring people with mental health problems are treated fairly. To access it go to tinyurl.com/2xudon.
  • Mindful Employer at www.mindfulemployer.net is a network of employers that seeks to increase awareness of mental health in the workplace. It has a charter for employers, and links to a range of resources.

DISABILITY DISCRIMINATION: DEFINITION OF DISABILITY

Updated 29/4/06; links updated 6/6/06. This information updates ss.25.5.1 in The Voluntary Sector Legal Handbook 2nd edition.
The Disability Discrimination Act 1995 defines disability as a physical (including sensory) or mental impairment that has a substantial adverse effect on a person's ability to carry out normal day-to-day activities, where this effect has already lasted or is expected to last for at least 12 months. This definition excluded some people with cancer, diagnosed as HIV+ or registered as blind or partially disabled, who did not meet the statutory definition of disabled.

To overcome this, the Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003, which came into effect from 14 April 2003, provide that anyone who is registered with the local authority as blind or partially sighted, or is certified as blind or partially sighted by a consultant ophthalmologist, is deemed to be disabled for the purposes of the DDA. They do not have to show that the condition has a substantial adverse effect on their day-to-day activities. These regulations are at www.opsi.gov.uk/si/si2003/20030712.htm.

From 5 December 2005, the Disability Discrimination Act 2005 extends DDA protection to people with cancer, HIV or multiple sclerosis from the point of diagnosis, and people with mental illness even if the illness is not "clinically well recognised". The government originally intended to exempt specified minor cancers from the definition of disability, but did not do so. All cancers are therefore classed as a disability for the purposes of the DDA.

The DDA 2005 is at www.opsi.gov.uk/acts/acts2005/20050013.htm. Guidance about all aspects of disability discrimination is available from the Disability Rights Commission at www.drc.org.uk.

Revised guidance from the Secretary of State for Work and Pensions on issues to be taken into account in determining questions relating to the definition of disability is in effect from 1 May 2006. For the full guidance click here (the full address is too long to show on screen.
Bates, Wells & Braithwaite Solicitors have a useful summary at www.bateswells.co.uk/employmentemail/Email%20Update%2013%20Apr%202006_summary.doc.

The Disability Rights Commission has been consulting about changing the statutory definition of disability to better reflect the social model of disability and to include impairments that are not now covered under the legislation. The consultation period has now ended, but the consultation document is at www.drc-gb.org/disabilitydebate/uploads/con6.pdf.

DISABILITY MONITORING

Added 15/6/05. This information updates ss.25.5.1 in The Voluntary Sector Legal Handbook 2nd edition.
The TUC (Trades Union Congress) published in April 2005 advice on monitoring disability. Although intended primarily for unions in the public sector, it is relevant to organisations in all sectors. It is at www.tuc.org.uk/equality/tuc-9664-f0.cfm.

DISABILITY DISCRIMINATION BY ASSOCIATION

Added 27/2/07, link updated 4/5/07. This information updates s.25.5.1 in The Voluntary Sector Legal Handbook 2nd edition.
The Disability Discrimination Act 1995 as worded applies only to discrimination against a disabled person (as defined in the Act and subsequent legislation). But the employment appeal tribunal agreed on 20 December 2006 that a case involving discrimination on the basis of someone else's disability should be referred to the European Court of Justice, to decide whether this is also covered under the DDA.

Sharon Coleman asked for flexible working to look after her four-year-old disabled son. Her employer, Attridge Law Solicitors, had granted flexible working to other mothers whose children were not disabled, but did not allow it for Coleman. She resigned, claiming unlawful discrimination on the basis of her son's disability. This kind of discrimination by association is called associative discrimination and is recognised as applying in some types of discrimination cases, but is not covered by the DDA as worded. However Mrs Coleman is claiming that it is covered by the EU equal treatment directive, and should thus apply to the DDA.

At the moment, parents of children under age six (or under 18 if the child is disabled) are entitled to request flexible working, and from 6 April 2007 carers of adults will also be able to do so. However the employer can, for a variety of reasons, refuse the request. If Coleman wins her case in the ECJ, employers will need to consider whether flexible working to care for a disabled person is a reasonable adjustment under the DDA.

The Coleman case is expected to be heard by the ECJ by mid-2008. In the meantime, employers should ensure that requests for flexible working from parents or carers of a disabled person are not treated less favourably than requests from parents or carers of a non-disabled person.

For the Disability Rights Commission's press release on the case go to tinyurl.com/ywhr87.
The EAT decision in Attridge Law v Coleman is at www.bailii.org/uk/cases/UKEAT/2006/0417_06_2012.html.

Following consultation in 2005-06 on the definition of disability, the Disability Rights Commission is proposing that the definition be significantly widened to include any impairment or perceived impairment, without the current requirement that the impairment have a substantial long-term effect on the person's capacity to carry out day-to-day tasks. The widened definition would also include people associated with a disabled person. For the DSC's proposals on the definition of disability go to tinyurl.com/2xgooq.

DISABILITY DISCRIMINATION: EMPLOYMENT

Updated 22/3/06; links updated 6/6/06. This information updates s.25.5 in The Voluntary Sector Legal Handbook 2nd edition.
From 1 October 2004, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 made a number of changes to the DDA. These include:

  • The small employers exemption--exempting employers with fewer than 15 employees from the DDA's employment provisions--was removed.
  • Harassment and post-employment discrimination on the basis of disability are outlawed.
  • The burden of proof is shifted.
  • The legislation is extended to include providers of work placements.
The regulations are at www.opsi.gov.uk/si/si2003/20031673.htm.

For the new code of practice on employment and occupation, which is in effect from 1 October 2004, click here.

The Chartered Institute of Personnel and Development updated in December 2005 its basic guidance on disability and employment. It is at www.cipd.co.uk/subjects/dvsequl/disability/disandemp.htm.

REASONABLE ADJUSTMENTS FOR A DISABLED EMPLOYEE

Updated 24/3/06. This information updates s.25.5.4 in The Voluntary Sector Legal Handbook 2nd edition.
The Disability Discrimination Act 1995's employment provisions require all employers to make reasonable adjustments to workplaces and work practices so that a disabled person is not disadvantaged in employment or in applying for work. What is "reasonable" depends on each employer's situation, but the duty to make adjustments is especially high where an existing worker has a disability or becomes disabled.

The House of Lords confirmed on 1 July 2004 that where an employee becomes disabled and is unable to do their job, it is a reasonable adjustment to appoint them to do another job, even if they are not the best candidate for that job. (This is because the DDA does not make it unlawful to treat a disabled person more favourably on the basis of their disability, and therefore to treat an able-bodied person less favourably.) The judgment in Archibald v Fife Council is at www.bailii.org/uk/cases/UKHL/2004/32.html.

In Nottinghamshire County Council v Meikle, the Court of Appeal upheld on 8 July 2004 Gaynor Meikle's claim that she had been constructively dismissed on the basis of the employer's failure to make reasonable adjustments. The court also said the duty to make reasonable adjustments includes a duty to consider paying employees who are legally disabled while they are on sick leave, even if they are only contractually entitled to reduced pay or statutory sick pay. The case is at www.bailii.org/ew/cases/EWCA/Civ/2004/859.html.

Home Office v Collins illustrates the complex relationship between sickness absence, disability, reasonable adjustment and dismissal. Elaine Collins, an insulin-dependent diabetic, started work as an administrative assistant in May 2000 with a 12-month probationary period. Between May and November she had 27 days off sick. Her probationary period was extended for six months, and she was told her sickness absences would be monitored. From April to August 2001 she had a further four days off. None of her absences was said to be linked to diabetes or depression.

In August 2001 her GP signed her off work with stress and depression, and she never returned to work. The Occupational Health Service (OHS) said in January 2002 she would not be able to return to work for another six to eight weeks, and her return should involve a reduced workload, preferably with an agreed programme to build up hours over two to three months. There was no evidence of work-related stress having contributed to her depression.

In April she was sent a "minded to dismiss" letter, but after a meeting with management and her union representative in May, she was told that any decision to dismiss would be delayed until a further OHS report. This report, in August 2002, said her anxiety and continued absence were related to her diabetes and she should be able to return part-time after three to six months, i.e. by February 2003.

In September 2002, in accordance with their policy of not pursuing the possibility of a phased return or part-time work until an employee could give a precise date for return, the Home Office dismissed her on the basis of unsatisfactory attendance. Collins appealed to the Civil Service Appeal Board, and after losing the appeal she claimed unfair dismissal and disability discrimination on the grounds of, amongst other things, the employer's failure to provide a phased return to work or part-time employment.

The employment tribunal ruled that it was reasonable for the Home Office not to offer a phased return to work or part-time work, because the probationary period had been extended twice but there was still no fixed date when the employee would be able to return to work, even part-time. The tribunal said "a reasonable employer could have done no more than the respondent [the Home Office] did ... The reason to dismiss was not itself discriminatory, but was based on the failed probation based on the applicant's sickness record." The tribunal also said the dismissal had been fair.

The employment appeal tribunal reversed the ET's decisions, saying that the Home Office's policy of considering a phased return to work only when there was a fixed return date was itself discriminatory. The EAT also said that the "minded to dismiss" letter had given the impression that the employer did not really intend to make adjustments.

The Court of Appeal then in May 2005 overturned the EAT's decisions, saying that "the employer had taken such steps as were reasonable, in all the circumstances of the case", in relation to the employee's diabetes and depression, and that the dismissal was fair because the probationary period had twice been extended, the "minded to dismiss" letter had been written after the employee had been completely off work for eight months, and that by August 2002 the possible date for a return to work was still being postponed.

Like all cases, this one depends on the specific circumstances. But it illustrates just how complex the intertwined issues of sickness, disability, long-term absence, disability discrimination and dismissal are; the importance of getting legal advice at a very early stage; and the reality that the legal implications are not clear even as a case is going through the courts.

Home Office v Collins is at www.bailii.org./ew/cases/EWCA/Civ/2005/598.html.

EXTENDED SICK PAY FOR A DISABLED EMPLOYEE

Updated 27/2/07. This information updates s.25.5.4 in The Voluntary Sector Legal Handbook 2nd edition.
In a decision on 9 February 2007 the employment appeal tribunal confirmed that the purpose of "reasonable adjustments" under the Disability Discrimination Act is to enable a disabled person to continue working or return to work. Only in rare cases would it be a reasonable adjustment for an employer to continue paying full salary or sick pay after the employee's entitlement to sick pay had ended, since this would be a disincentive to return to work.

The decision in Fowler v London Borough of Waltham Forest is at www.bailii.org/uk/cases/UKEAT/2007/0116_06_0902.html. An earlier decision in O'Hanlon v HM Revenue & Customs is at www.bailii.org/uk/cases/UKEAT/2006/0109_06_0408.html.

ADJUSTMENTS TO WORKSTATIONS AND COMPUTERS

Added 20/8/05. This information updates ss.25.5.4 and 36.4.7 in The Voluntary Sector Legal Handbook 2nd edition.
AbilityNet's Very best CD of office sense provides photos and bullet points about how desks, workstations and computers can easily be adjusted to ensure compliance with health and safety law and the Disability Discrimination Act. It costs £19.38. For details see www.abilitynet.org.uk/content/abilitynet/products/office.htm.

DISABILITY DISCRIMINATION & SMOKING

Updated 24/10/05. This information updates ss.25.5.4 and 36.4.3 in The Voluntary Sector Legal Handbook 2nd edition.
In 2003 Granby Island Community Centre in Plymouth had to pay £17,000 compensation for disability discrimination to an asthmatic employee who was dismissed after taking 16 days sick leave in 45 days of employment. The employee, who is registered disabled, was initially required to work in a room where smoking was allowed. When she complained she was moved to the non-smoking reception area, but the smoking ban was not observed. She was also required to work in her manager's office, where he smoked up to 30 cigarettes per day. She became ill after only one week at work and was subsequently dismissed because of her absence record.

VOLUNTARY SECTOR GUIDE
TO THE RELIGION AND SEXUAL ORIENTATION REGULATIONS

Added 25/8/05.
Making equality simple is a straightforward guide to the religion and sexual orientation regulations, published in March 2005 by the National Council for Voluntary Organisations in association with the Black Training and Enterprise Group. It can be downloaded from www.ncvo-vol.org.uk/makingequalitysimple (2.8MB), or can be ordered from NCVO on 0800 2 798 798 or helpdesk@ncvo-vol.org.uk.

SEXUAL ORIENTATION: EMPLOYMENT

Updated 11/11/06. This information updates s.25.7 in The Voluntary Sector Legal Handbook 2nd edition.
From 1 December 2003 the Employment Equality (Sexual Orientation) Regulations 2003 make discrimination in employment and vocational training on the basis of sexual orientation unlawful. Discrimination based on perceived sexual orientation is also unlawful. "Discrimination" includes direct discrimination, indirect discrimination, victimisation and harassment.

The decision in the first successful case under the regulations was handed down on 28 January 2005, when a manager was awarded more than £35,000 compensation for constructive unfair dismissal, harassment and direct discrimination because of persistent homophobic taunts by senior managers and other staff (Whitfield v Cleanaway UK). In another case (Whitehead v Brighton Marine Palace and Pier Ltd) an employee resigned after one extremely derogatory comment which his manager overheard and did nothing about. He was awarded a total of £9,215 for constructive unfair dismissal and harassment on the grounds of sexual orientation. For more about the Whitfield case see observer.guardian.co.uk/uk_news/story/0,,1401962,00.html, and for the Whitehead case see employment.practicallaw.com/4-200-8361.

The regulations define sexual orientation as an orientation towards persons of the same sex, persons of the opposite sex, or persons of the same sex and of the opposite sex.

It is lawful to discriminate in recruitment, promotion or training on the basis of sexual orientation where being of a particular orientation can be shown to be a genuine occupational requirement for a position.

Regulation 7 of the Employment Equality Regulations--a controversial provision that was not in the draft regulations sent out for consultation--allows discrimination on the basis of sexual orientation in "employment for the purposes of an organised religion" to comply with the doctrines of the religion or "to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers". This provision was challenged by seven major unions as being in breach of European law and the Human Rights Act, but was upheld by the High Court on 26 April 2004.

From 5 December 2005 civil partners must be given the same employment benefits as married staff. Until 5 December it was lawful for benefits such as pensions to be given only to married couples; from 5 December such benefits, if provided to married employees, must also be given to civil partners. The benefits do not need to be made available to partners (whether same sex or different sex) who are not married or civil partners.

Positive action provisions in the Employment Equality Regulations (regulation 26) allow people of a particular sexual orientation to be given preferential access to training or to be encouraged to apply for particular work, where such action prevents or compensates for disadvantages linked to that sexual orientation.

The regulations and explanatory notes are at www.opsi.gov.uk/si/si2003/20031661.htm.

SEXUAL ORIENTATION: EMPLOYMENT

Updated 27/2/07. This information updates s.25.7 in The Voluntary Sector Legal Handbook 2nd edition.
The Employment Equality (Sexual Orientation) Regulations 2003 and explanatory notes are at www.opsi.gov.uk/si/si2003/20031661.htm.
ACAS guidance is at www.acas.org.uk/media/pdf/e/n/sexual_1.pdf.

Among the resource materials are:

  • ACAS online learning package on sexual orientation, issued 1 November 2006. Like all of ACAS's online e-learning courses this is free but to access it, you have to register at www.acas.org.uk/elearning.
  • ACAS "audit tool" and guidance notes on sexual orientation, issued 25 October 2006, at www.acas.org.uk/index.aspx?articleid=1204.
  • CIDP's factsheet on sex discrimination, sexual orientation, gender reassignment and employment, updated October 2006, at www.cipd.co.uk/subjects/dvsequl/sexorient.
  • Revised version of Stonewall's detailed guidelines for employers, issued on 13 April 2006, at www.stonewall.org.uk/documents/Employer_English.pdf.
  • The TUC's LGBT equality in the workplace: A TUC guide for union negotiators on lesbian, gay, bisexual and trans issues, published on 27 March 2006, at www.tuc.org.uk/equality/tuc-11663-f0.cfm.
  • Making equality simple, a straightforward guide to the religion and sexual orientation regulations, published in March 2005 by the National Council for Voluntary Organisations in association with the Black Training and Enterprise Group, at www.ncvo-vol.org.uk/makingequalitysimple, or can be ordered from NCVO on 0800 2 798 798 or helpdesk@ncvo-vol.org.uk.

ANTI-GAY INNUENDO AGAINST A HETEROSEXUAL MAN

Added 30/3/08. This information updates s.25.7 in The Voluntary Sector Legal Handbook 2nd edition.
The sexual orientation regulations prohibit less favourable treatment on grounds of sexual orientation, defined as an orientation towards people of the same sex, the opposite sex, or both sexes. In an employment appeal tribunal decision on 20 February 2008, homophobic banter against a heterosexual man who was known to be heterosexual was held to be not unlawful.

Had the man been known or perceived to be gay the anti-gay innuendo — based on his living in Brighton and having attended boarding school — would have been unlawful. But as he was known to be heterosexual, the law as worded was held not to apply. The employment appeal tribunal described this position as unsatisfactory, and gave permission to appeal to the court of appeal.

The decision in English v Thomas Sanderson Blinds Ltd can be accessed via tinyurl.com/2m2cst.

RELIGION OR OTHER BELIEF: DEFINITION

Updated 12/4/07. This information updates s.25.8 & 37.5.1 in The Voluntary Sector Legal Handbook 2nd edition.
The Equality Act 2006 s.44 amends, from 30 April 2007, the definition of "religion or belief".

Under the Employment Equality (Religion or Belief) Regulations 2003, religion or belief is defined as "any religion, religious belief, or similar philosophical belief", and the explanatory notes to the regulations explicitly state that this does not include philosophical or political beliefs unless they are similar to a religious belief. However, s.44 of the Equality Act does not include the word "similar", and the notes to the Act do not include anything suggesting that the definition would not apply to political beliefs, vegetarianism, or any other belief.

The Equality Act also explicitly states that the definition of religion or belief includes a lack of religion or belief.

The Equality Act 2006 is at www.opsi.gov.uk/acts/acts2006/20060003.htm.
Explanatory notes are at www.opsi.gov.uk/acts/en2006/2006en03.htm.

RELIGION AND OTHER BELIEF: EMPLOYMENT

Updated 11/11/06. This information updates s.25.8 in The Voluntary Sector Legal Handbook 2nd edition.
From 2 December 2003 the Employment Equality (Religion or Belief) Regulations 2003 outlaw discrimination in employment and vocational training on the basis of religion or other belief. Religion or belief is defined as "any religion, religious belief, or similar philosophical belief". This appears to include fringe religions and cults and could include political beliefs. The limits will need to be defined by the courts.

There are exemptions where being of a particular religion or belief is a genuine occupational requirement for a post in an organisation which has an ethos based on religion or belief, or where being of a particular religion or belief is a genuine and determining occupational requirement for a post in a non-ethos based organisation (regulation 7). Positive action provisions (regulation 25) allow people of a particular religion or belief to be given preferential access to training or to be encouraged to apply for particular work, where such action prevents or compensates for disadvantages linked to that religion or belief.

The first successful tribunal decision under the regulations was on 14 January 2005, when Muhammed Sajwal Khan was awarded £10,000 for unfair dismissal and unlawful indirect discrimination. Mr Khan, who was employed by NIC Hygiene Ltd, had applied to use his 25 days annual leave plus a week of unpaid leave to make a Hajj pilgrimage to Mecca. He put his request in writing and when he did not get a reply, his manager said he could assume there was no problem. When Mr Khan returned he was dismissed for gross misconduct, on the basis that he had taken unauthorised leave. Additional information about the case is at www.islamonline.net/English/hajj/News/1425/14.shtml.

In another tribunal case soon after, Mrs Williams-Drabble, a practising Christian, won her claims of indirect discrimination and constructive dismissal because her employer, Pathway Care Solutions, changed her hours to require her to work on Sundays. The key issues here included:

  • she had told them at interview that she attended church services and would not be able to work Sundays;
  • the new rotas were imposed without consultation;
  • the employer could not show that the new rotas were "a proportionate means of achieving a legitimate aim", i.e. were both necessary for the work and appropriate;
  • when the employee complained about the new rotas she was told she should consider resigning.
For more about this case see jsbonline.com/elawletter.cfm?viewArticles=1&id=27&id2=3.

Employers should be aware that an indirect discrimination claim could be brought against them if they do not allow workers to take time off (as annual leave or on an unpaid basis) for religious holidays or observance, or require staff to work on holidays such as Christmas or Easter if the staff member wants to attend church services that day, or close down over Christmas and require staff to take their annual leave during this period (when some staff might prefer to use their leave for their own religious holidays). The employer can, however, claim that their action is proportionate and therefore justified--for example if a small employer does not have other staff who could cover for the absent staff member.

The Chartered Institute of Personnel and Development has advised employers to be aware that anything that offends against a religious belief or practice could breach the law. This could include, for example, requiring all staff to shake hands with visitors or clients, or not having non-alcoholic drinks available at a work event.

The regulations and explanatory notes are at www.www.opsi.gov.uk/si/si2003/20031660.htm.

The Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003, which came into effect on 1 September 2003, allow foundation or voluntary schools with a religious character to give preference in the appointment, promotion or remuneration of teachers to people with religious beliefs in accordance with those of the school, or who attend worship in accordance with those beliefs, or who give or are willing to give religious education at the school in accordance with those beliefs. In appointing or terminating employment of a teacher, conduct incompatible with the religion may be taken into account. These regulations are at www.opsi.gov.uk/si/si2003/20032037.htm.

RELIGION AND OTHER BELIEF: EMPLOYMENT

Updated 1/4/07. This information updates s.25.8 in The Voluntary Sector Legal Handbook 2nd edition.
The Employment Equality (Religion or Belief) Regulations 2003 and explanatory notes are at www.www.opsi.gov.uk/si/si2003/20031660.htm. The definition of religion or belief will be changed: see Religion or other belief: Definition above.

ACAS guidance (updated November 2005) is at www.acas.org.uk/media/pdf/f/l/religion_1.pdf.
ACAS issued on 7 March 2007 a free on-line course on discrimination in employment on the basis of religion or belief, accessible from www.acas.org.uk/elearning. New users must register first.

CIPD updated in March 2007 its factsheet on race, religion and employment at www.cipd.co.uk/subjects/dvsequl/relgdisc.

Making equality simple is a straightforward guide to the religion and sexual orientation regulations, published in March 2005 by the National Council for Voluntary Organisations in association with the Black Training and Enterprise Group. It can be downloaded from www.ncvo-vol.org.uk/makingequalitysimple, or can be ordered from NCVO on 0800 2 798 798 or helpdesk@ncvo-vol.org.uk.

ACAS issued on 25 October 2006 an "audit tool" and guidance notes on awareness of discrimination on the basis of religion and belief. They are at www.acas.org.uk/index.aspx?articleid-1203.

AGE DISCRIMINATION

Updated 27/2/07. This information updates s.25.9 in The Voluntary Sector Legal Handbook 2nd edition.
The Employment Equality (Age) Regulations 2006, covering age discrimination in employment and vocational training, are in force from 1 October 2006.

  • Reg.7. Direct and indirect discrimination in recruitment, promotion and training on the basis of actual or perceived age are unlawful unless it can be objectively justified.
  • Where a job applicant is already over 65 or the employer's normal retirement age (whichever is higher), or will reach that age within six months of their application, it is not unlawful to treat them less favourably on the basis of age.
  • Reg.8. It is lawful to use age as a factor in recruitment or promotion where being of a particular age group is a genuine occupational requirement for the job.
  • Reg.29. Under positive action provisions, persons of a particular age group can be encouraged to apply for jobs in order to prevent or compensate for disadvantages linked to age (for example if that age group is under-represented in jobs of a particular type or within that employer's workforce). But as with other forms of positive action, age cannot be used as a factor in selection.
  • Reg.30. There is a national default—not compulsory—retirement age of 65. Dismissal on the basis of retirement at the default retirement age or the employer's retirement age is not unlawful, although these provisions are being challenged in the European Court of Justice (see below). Schedule 8 para.23 sets out when a dismissal is and is not regarded as being for reasons of retirement. These provisions become ss.98ZA-98ZF of the Employment Rights Act 1996.
  • A retirement age below 65 is unlawful unless it can be objectively justified. Employers who before 1 October 2006 had a retirement age below 65 now have to meet the objective justification test, or increase it to at least 65.
  • The default retirement age will be reviewed in 2011.
  • Schedule 6. Employers must give written notification to employees between six and 12 months before their intended retirement date—even if retirement provisions are included in the contract of employment or in a policy or procedure previously given to the employee.
  • With this notice, the employers have to tell the employee that he or she has the right to ask to continue working beyond retirement age, and the employer must consider this request. The employee has to make the request at least three months before the retirement date, and must say whether they want their employment to continue indefinitely, or for a stated period or until a stated date. The employer must consider the request, but there is no duty on the employer to grant the request. The employee has a right to appeal if the employer does not grant the request, or if the employer agrees that the employee can continue working but for a shorter period than requested. Where the employee is allowed to continue working for six months or more, the same notice procedure has to be gone through again.
  • Schedule 7. This sets out provisions for retirement dates between 1 October 2006 and 31 March 2007. In most situations the employer has to give written notification to the employee four weeks before their intended retirement date. The employee has a right to request working beyond retirement age.
  • Reg.31. Employers who base their pay structure on the national minimum wage (NMW) can pay less to employees aged 16-17 and 18-21 than to employees doing comparable work who are over 21. But employers who do not base their pay structure for that type of work on NMW cannot pay less on the basis of age unless this is objectively justified. (The age limits in the minimum wage legislation may be challenged.)
  • Schedule 8. The lower (16) and upper (65) age limits for statutory sick, maternity, adoption and paternity pay have been removed.
  • National insurance contributions now have to be paid in respect of employees aged under 16.
  • The upper age limit (65) for bringing unfair dismissal claims has been removed, as has the tapering of the basic award for unfair dismissal while the person is 64. But dismissal on the basis of retirement is not unfair, provided the employer has gone through the retirement procedure set out in the regulations.
  • The upper age limit (65) for statutory redundancy pay has been removed, as has the tapering of redundancy pay while the person is 64.
    • The lower age limit (18) for calculating unfair dismissal awards and statutory redundancy pay has been removed.
  • Reg.32. Employment benefits linked to length of service are allowed. Where the employee who is getting the benefit and the one who is not (or who is getting a lesser benefit) each have at least five years' service, the disparate treatment must fulfil a business need. This could include rewarding experience or loyalty or increasing motivation of some or all workers. Where the employee who is getting the benefit has five years or less service, there is no need for the employer to be able to justify it.
  • Reg.33. The two-year qualifying period for statutory redundancy pay remains, and the amount of redundancy pay is still based on length of service (with a maximum of 20 years' employment taken into account).
  • The calculation of redundancy pay continues to be based on a multiplier of one week for years of employment when the employee was aged 22-40, half a week for years of employment when aged under 22 and one and a half weeks for years of employment when aged 41 or older.
  • For enhanced redundancy pay—payments to employees who are not entitled to statutory redundancy pay, or payments at more than the statutory minimum—employers may take age or length of service into consideration provided the age brackets are the same as for the statutory scheme. This means mirroring the statutory scheme but with, for example, a higher multiplier, or an actual week's pay rather than the statutory capped week's pay, or using a month's pay rather than a week's pay.
  • For redundancy payment schemes based on age or length of service that do not mirror the statutory scheme, the employer needs to show objective justification.
  • Reg.34. Life assurance cover can be provided to retired workers who have retired early on the grounds of ill health. Such assurance must end when the worker reaches the employer's normal retirement age, or age 65 if there is no normal retirement age.
  • Schedule 2. Age-related rules in occupational pension schemes are not unlawful, provided certain criteria are met. Organisations which operate pension schemes should take advice about whether their current provisions need to be altered.
The Employment Equality (Age) Regulations 2006 are at www.opsi.gov.uk/si/si2006/20061031.htm.
The accompanying notes are at www.dti.gov.uk/files/file27136.pdf.

All employers should by now have reviewed their employment procedures, training programmes, service-linked benefits, employment handbooks and retirement provisions, to ensure they comply with the regulations. Redundancy provisions should also be reviewed, and criteria based on length of service or "last in first out" should be used only if they can be objectively justified.

To help this process, a number of publications are available.
  • The TUC and CIPD's Managing Age: A guide to good employment practice was launched on 27 February 2007and is at www.tuc.org.uk/extras/managingage.pdf.
  • The TUC has a short briefing summarising the regulations, at www.tuc.org.uk/equality/tuc-11775-f0.cfm.
  • ACAS's Age and the workplace, updated in October 2006, contains guidance covering training, equal opportunities, recruitment, promotion, performance appraisals, sickness pay, conditions, benefits, redundancy, pensions and retirement. It includes useful annexes with an "age healthcheck", a framework for age monitoring, a fair retirement flowchart, examples of the letters needed for the retirement procedure, and a summary of the transitional provisions from 1 October 2006 to 31 March 2007. It is at www.acas.org.uk/media/pdf/r/j/Age_and_the_Workplace.pdf.
  • On 30 May 2006 the DTI published eight factsheets, covering overview, objective justification, transitional arrangements for the period for staff facing retirement between 1 October 2006 and 31 March 2007, vocational training, service-related benefits, redundancy, retirement, and occupational benefits. To access the factsheets click www.dti.gov.uk/employment/discrimination/age-discrimination/age-legislation/page29258.html.
  • The Age Partnership Group, a government initiative, has issued a range of downloadable resources as well as a Be Ready filofax-type personnel organiser with useful information, and a CD-ROM with an age diversity open learning course. All are free and are available from www.agepositive.gov.uk.
  • CIPD's factsheet on age and employment, with good practice recommendations and an action plan, was updated in October 2006. It is at www.cipd.co.uk/subjects/dvsequl/agedisc/ageandemp.htm.

RESOURCES ON AGE DISCRIMINATION

Updated 28/3/08. This information updates s.25.9 in The Voluntary Sector Legal Handbook 2nd edition.
The Employment Equality (Age) Regulations 2006, covering age discrimination in employment and vocational training and in particular introducing detailed rules on retirement, are in force from 1 October 2006. The regulations are at www.opsi.gov.uk/si/si2006/20061031.htm.
The accompanying notes are at www.berr.gov.uk/files/file27136.pdf.

A number of other resources are available.

  • The TUC and CIPD's Managing Age: A guide to good employment practice was launched on 27 February 2007and is at www.tuc.org.uk/extras/managingage.pdf.
  • The TUC has a short briefing summarising the regulations, at www.tuc.org.uk/equality/tuc-11775-f0.cfm.
  • ACAS's Age and the workplace, updated in October 2006, contains guidance covering training, equal opportunities, recruitment, promotion, performance appraisals, sickness pay, conditions, benefits, redundancy, pensions and retirement. It includes useful annexes with an "age healthcheck", a framework for age monitoring, a fair retirement flowchart, and examples of the letters needed for the retirement procedure. It is at www.acas.org.uk/media/pdf/r/j/Age_and_the_Workplace.pdf.
  • ACAS also has an e-learning module, issued in August 2007. Free registration for e-learning is at www.acas.org.uk/elearning.
  • The Department for Business, Enterprise and Regulatory Reform has factsheets covering overview, objective justification, vocational training, service-related benefits, redundancy, retirement, and occupational benefits. To access the factsheets click www.berr.gov.uk/employment/discrimination/age-discrimination/age-legislation/page29258.html.
  • The Age Partnership Group, a government initiative, has issued a range of downloadable resources as well as a Be Ready filofax-type personnel organiser with useful information, and a CD-ROM with an age diversity open learning course. All are free and are available from www.agepositive.gov.uk.
  • CIPD's factsheet on age and employment, with good practice recommendations and an action plan, was updated in October 2006. It is at www.cipd.co.uk/subjects/dvsequl/agedisc/ageandemp.htm.

AGE DISCRIMINATION CASES

Added 28/3/08. This information updates s.25.9 in The Voluntary Sector Legal Handbook 2nd edition.
Tribunal decisions during the first year and a half of the age discrimination regulations give a sense of how the law is being enforced. These are all at employment tribunal level so are not reported on the legal websites, but information can be obtained by searching on the key words in the case name on Google or another search engine.

In one of the first cases, in spring 2007, a cleaner was dismissed (via a note left in her locker) two days after her 70th birthday, because of her "age and health". The tribunal found that she had been discriminated against and unfairly dismissed, because the employer had not obtained any medical evidence or even discussed their concerns about her health with her, and had operated on the basis of assumptions about her health. The case is Martin v SS Photay & Associates, ET/1100242/07.

In autumn 2007, a woman dismissed from her job as membership secretary at a London club because at 19 years old she was "not mature enough to deal with members" was the first person to win a claim for age discrimination on the basis of being too young. The tribunal also ruled that she had been unfairly dismissed. The case is Thomas v Eight Members Club, ET/2202603/07. Despite not contesting the case or presenting any evidence, the club said it would appeal the decision.

Felix Dennis published in 2006 a book called How to Get Rich, which recommended hiring younger workers because they could be paid less than the market rate, as opposed to older workers who are paid more than they are worth. The following year, Dennis's publishing company made a 55-year-old employee redundant without going through the statutory dismissal procedure (thus making the dismissal automatically unfair), consulting him about the redundancy, or considering any of the other employees in the creative team (all in their 20s and 30s) for redundancy — and the "redundant" employee was replaced the day after his dismissal by someone 20 years younger. Not surprisingly, the tribunal inferred that the sentiments in Dennis's book had infected employment practices at all levels within the company, and the employee won his claim for age discrimination and unfair dismissal. The case is Court v Dennis Publishing Ltd, ET/2200327/07.

In February 2008, the industrial tribunal in Northern Ireland agreed that a 58-year-old had been discriminated against when a timber merchant asked in a job advertisement for "youthful enthusiasm"; asked the applicant questions at interview that appeared to link his age with a lack of energy, motivation and enthusiasm; and passed over the applicant in favour of two younger applicants with much less experience but who were said to better meet the requirements for drive and motivation. The case is McCoy v McGregor and Sons Limited, case 237/07.

Although there have been no cases about this yet, a law firm has suggested that employers who recruit only via the internet could be open to a claim of indirect age discrimination. In 2006, according to the Office of National Statistics, 55% of people aged 50 or over in the UK had not used a computer in the previous three months, compared to 13% of 16 to 30 year olds.

CHALLENGE TO MANDATORY RETIREMENT AGE

Updated 28/3/08. This information updates s.25.9 in The Voluntary Sector Legal Handbook 2nd edition.
Heyday, a membership group linked with Age Concern, challenged the retirement provisions of the Employment Equality (Age) Regulations 2006 in the High Court on the basis that forced retirement — denying people 65 or over the right to continue working — is incompatible with the European Equal Treatment Directive. The court agreed on 6 December 2006 to refer the case to the European Court of Justice.

It could take until 2009 for an ECJ decision. In the meantime, employees who have been made to retire against their will since 1 October 2006 can lodge age discrimination claims within three months of their retirement, and if these are lodged in England or Wales they will be stayed (held over) until the ECJ ruling. Claims in Scotland will be referred to individual tribunal chairs to decide whether they should be held over.

The ECJ ruled in October 2007, in the Spanish case of Palacios de la Villa v Cortefiel Servicios SA that the EU Equal Treatment Directive does not prevent member states setting or allowing a mandatory retirement age where this is a proportionate means of achieving the legitimate aim of promoting employment opportunities for other generations and reducing unemployment — but only if the employee being retired has qualified for a state pension.

Heyday still considers that it can win its case as it argues that the facts are different from those in Palacios. But until there is a decision, employers may want to consider operating without a retirement age, or should have a clear reason other than age if they wish to "retire" an employee against their will.

NON-RENEWAL OF FIXED-TERM CONTRACT

Added 9/3/05. This information will be part of a new section after s.25.11 in The Voluntary Sector Legal Handbook 2nd edition, and updates s.22.3.2.
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 make it unlawful to treat a fixed-term employee less favourably than a comparable permanent employee--although in relation to contractual terms and conditions fixed-term employees can be given comparable rights, rather than the same. In Department for Work and Pensions v Atasha Webley, Mrs Webley claimed that she had been treated less favourably when her fixed-term contract was not renewed, because permanent employees doing the same work had not had their contracts terminated. The Court of Appeal held on 21 December 2004 that non-renewal of a fixed-term contract is not in itself discriminatory, because the whole point of a fixed-term contract is that it is going to end.

However, do remember that the statutory dismissal procedures apply to non-renewal of a fixed- term contract; a person who has been employed on a fixed-term contract (or series of contracts) for one year or more can claim unfair dismissal if there is not a fair reason for the non-renewal (the reason will usually be redundancy); and a person who has been employed on a fixed-term contract or series for two years or more is entitled to statutory redundancy pay (unless the contract contains a waiver of the right to redundancy pay from before July 2002 which is still valid).

The decision in DWP v Webley is at www.bailii.org/ew/cases/EWCA/Civ/2004/1745.html.
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are at www.opsi.gov.uk/si/si2002/20022034.htm.
For further information click here (the address is too long to show on screen).

LONG-TERM FIXED-TERM CONTRACTS

Added 16/8/06.This information updates a new section after s.25.11 in The Voluntary Sector Legal Handbook 2nd edition.
Just a reminder that on 10 July 2006, any employee who had been on a series of two or more fixed-term contracts since 10 July 2002 automatically became a permanent employee. The same conversion will happen when other fixed-term employees who are on their second or subsequent fixed-term contract reach four years.

To avoid confusion any employee in this situation should be given, within a month of the contract becoming permanent, a statement of revisions to his or her terms and conditions of employment, with all references to the fixed term removed. Where a fixed-term contract entered into before 10 July 2002 included a waiver of the right to redundancy pay, the waiver will no longer apply.

There is an exemption to the contract becoming permanent if the employer can show that there was, at the date of the last renewal, objective justification for keeping it as fixed-term.

Employees who are still on their first fixed-term contract of four years or more will not automatically become permanent until the contract is renewed.

The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are at www.opsi.gov.uk/si/si2002/20022034.htm.

FIXED-TERM CONTRACTS

Updated 27/3/03. This information adds a new section after s.25.11 in The Voluntary Sector Legal Handbook 2nd edition.
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the relevant sections of the Employment Act 2002 came into effect on 1 October 2002. Fixed-term employees include employees hired for a fixed period (i.e. with a fixed ending date), employees hired for a period which ends when a specified event does or does not happen (for example if a grant is not renewed, or when a person who has been on maternity leave returns to work), and employees hired to carry out a specific task.

Fixed-term employees have the same statutory rights as permanent employees, including the right to claim unfair dismissal if the contract is not renewed when it ends and there is not a fair reason for the dismissal. (The fair reason will generally be redundancy--in which case the employee will be entitled to redundancy rights, including redundancy pay after two years continuous employment.)

A waiver of the right to redundancy pay remains valid where it was included in a fixed-term contract of two years or more which started before 1 October 2002. But for contract renewals or new contracts on or after this date, the right to waive redundancy pay has been abolished.

From 1 October 2002, the contractual rights of fixed-term employees must not be less favourable than those of a comparable employee on a permanent contract, unless less favourable treatment is objectively justified. This does not require exact pro rata entitlements; it is sufficient for the fixed-term employee's contractual rights to be, as a whole, at least as favourable as the permanent employee's. Fixed-term employees who believe they have been treated less favourably now have a right to receive a written statement of reasons for their treatment.

Fixed-term employees have a right to be informed by their employer of available vacancies. This could include displaying an advertisement or notice that fixed-term employees have a reasonable opportunity of reading in the course of their employment (for example, putting the notice on a staff noticeboard), emailing notices to relevant employees, or giving reasonable notice in some other way.

Where a person has been employed on a fixed-term contract or contracts for more than four years and the contract started on or after 10 July 2002, the contract will be converted to a permanent contract at its next renewal--unless the employer can show an objective justification for continued fixed-term employment.

The fixed-term rules do not apply to people on government or EU-funded training schemes, work experience on higher education courses, and agency workers.

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are at www.opsi.gov.uk/si/si2002/20022034.htm.
For the DTI's guidance click here (the address is too long to show on screen).

PART-TIME WORKERS

Updated 30/12/02, links updated 14/5/06. This information updates s.25.12 in The Voluntary Sector Legal Handbook 2nd edition.
Part-time employees have the same statutory rights as full-time employees. Part-timers such as casual workers who are not employees are entitled to minimum wage, working time rights, and the right to be accompanied at disciplinary and grievance proceedings. Two changes relating to part-time workers came into force on 1 October 2002:

  • Allowing a part-timer to compare his or her terms and conditions with any comparable full-timer (the comparator), regardless of type of contract (permanent, fixed-term etc) rather than requiring the comparator to be on the same type of contract;
  • Allowing claims for equal access to occupational pension schemes to be backdated for more than two years.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002 are at www.opsi.gov.uk/si/si2002/20022035.htm.
For DTI guidance click here (the address is too long to show on screen).

Significant differences from fixed-term rights are:
  • Fixed-term rights apply only to employees. Part-time rights apply to workers--employees and most other people working under a contract.
  • Contractual fixed-term rights have to be comparable to the rights of a comparable permanent employee, but do not have to be the same if the different treatment can be objectively justified. Part-time workers' rights have to be the same as a comparable full-time worker's rights, on a pro rata basis.

PART-TIME WORKERS' RIGHTS

Added 16/8/06. This information updates s.25.12 in The Voluntary Sector Legal Handbook