Equality and Diversity: From Compliance to Best Practice

1
Equality and Diversity From Compliance to Best
Practice

• 10 February 2009
• Patrick Howarth, Michael Halsey Susie Halliday

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Overview

• Issues for the future
• Important discrimination cases in 2008
• Grievances the legal position and when to draw
  the line
• Policies and procedures what to include, how
  (and how not) to implement policies
• Age discrimination the practicalities of
  justifying internal decisions

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Issues For The Future
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Discrimination Update

• Disability Discrimination
• Disability-related discrimination Mayor and
  Burgesses of the London Borough of Lewisham v
  Malcolm
• Discrimination by association Coleman v Attridge
  law
• Meaning of discrimination Richmond Adult
  Community College v McDougall
• Reasonable adjustments Eastern Coastal Kent
  PCT v Grey
• Religion or Belief Discrimination
• Displaying religious symbols Eweida v British
  Airways

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Discrimination Update

• Sexual Orientation Discrimination
• Expanded protection English v Thomas Sanderson
  Blinds Ltd
• Sex Discrimination
• Amendments to Sex Discrimination Act
• Age Discrimination
• Compulsory retirement age lawful?
• Justification lawful?
• Dangerous stereotyping
• Length of service Rolls Royce v Unite the Union

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Grievances Introduction

• Employment Act 2008
• ACAS Code of Practice
• Short case study

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Employment Act 2008

• Comes into force 6 April 2009
• Repeals statutory dismissal, disciplinary and
  grievance procedures
• Changes award adjustment

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Repeal of Statutory Grievance Procedures

• No requirement to raise grievance in order to
  bring claim in the ET
• Removal of distinction between standard and
  modified procedures
• No time limit extension back to 3 months or 6
  months
• Complicated rules for overlapping grievance and
  disciplinary cases fall away

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Award Adjustments

• Currently
• Non completion of statutory procedure
• 10 - 50 adjustment
• Under 10 in exceptional circumstances
• From 6 April 2009
• Comply with new ACAS Code of Practice
• Unreasonable failure to follow Code
• Increase / decrease award by up to 25

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ACAS Code of Practice

• The new code is a key element in the
  Governments plans to streamline and simplify the
  dispute resolution system to the benefit of
  employers and employees.
• Establish flexible, principle based guidance to
  help resolve disputes early
• Not legally binding
• Admissible in evidence and can be taken into
  account by ET
• Change of terminology must and will to
  should and may

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ACAS Code of Practice

• Defines grievances as concerns, problems or
  complaints that employees raise with their
  employers
• Importance of written procedures
• States employees and where appropriate their
  representatives should be involved in the
  development of rules and procedures
• Not always practicable for all employers to
  comply with all aspects of the Code
• Fairness
• Not apply to collective grievances

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ACAS Code of Practice

• What is a grievance?
• Should be done in writing and set out the nature
  of the grievance
• No longer implication on admissibility, time
  limits and compensation
• Only implication on award adjustment
• Only if employer / employee has unreasonably
  failed to comply with Code
• No obligation to hear grievances of former
  employees?
• Code refers to resolving issues in the
  workplace
• Modified procedure gone

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ACAS Code of Practice

• Worker must make reasonable request to be
  accompanied
• Companion prejudice hearing
• Remote geographical location
• Last minute request?
• Employees call and question witnesses
• Code encourages this in disciplinary meetings
• Silent regarding grievance meetings

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Transitional Provisions

• The standard and modified grievance procedures
  will continue to apply where
• Action on which grievance is based occurs wholly
  before 6 April 2009
• OR
• Action begins on or before 5 April 2009 and
  continues beyond that date AND
• Employee makes an ET claim or lodges a grievance
• On or before 4 July 2009 for claims with a 3
  month time limit
• On or before 4 October 2009 for claims with a 6
  month time limit and claims relating to dismissal
  for industrial action

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Case Study

• An employee sets out a written complaint to his
  manager that the company has not paid his
  expenses for some time but has paid all the
  expense claims made by his colleagues. The
  manager writes to the employee asking if he wants
  this to be dealt with under the companys
  grievance procedure. The employee says no and
  the matter is dropped.
• Four months later the employee raises the issue
  again and confirms he does want the matter
  treated as a grievance. A meeting is arranged to
  take place 30 days later. The day before the
  meeting the employee lodges an ET claim.
• The employee asks to be accompanied by a
  colleague from the companys Scottish office.

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Policies and Procedures

• Why bother?
• Legal importance
• Employee and customer relations
• Public authority duties
• Suppliers

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Is That Enough?

• Is a policy enough?
• What else should we be doing?
• Liability and the reasonable steps defence
• A policy
• Awareness of policy
• Training
• Steps to deal with complaints
• What should the training include?

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Drafting a Policy

• Preliminary considerations
• Directors commitment?
• Who has responsibility for it?
• Codes of practice?
• Trade unions/employee representatives?

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Policies and Procedures What to Include

• What should be included?
• More than a basic statement
• Explanation of prohibited conduct consider level
  of detail and examples
• Statement of right to be treated with dignity and
  respect
• Motivation irrelevant
• Application of policy
• Informal vs formal
• No recrimination
• Link to disciplinary procedure

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Policies and Procedures What to Include

• Details of other policies?
• Who to complain to
• Confidential counselling?
• Is policy contractual?
• Confidentiality
• Practicalities of dealing with alleged harasser
• Monitoring

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What Should We Not Do?

• Dont
• Introduce a policy without management backing
• Introduce a policy without some training
• Think that training lasts a lifetime
• Forget to review the policy
• Ignore complaints of harassment/bullying (unless
  you want to dig deep)
• Fail to act on a finding of harassment/bullying
• Forget to monitor the situation to ensure the
  harassment has stopped

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Age Discrimination Introduction

• Legal Background
• Legitimate Aim
• Proportionality
• Genuine Occupational Requirement
• Tribunal Cases

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Legal Background

• Direct and indirect discrimination can be
  justified
• Not victimisation and harassment
• Justification
• Cannot show the treatment or provision, criteria
  or practise
• Is a proportionate means
• Of achieving a legitimate aim
• Genuine occupational requirement
• Service related benefits

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Legitimate Aims General Principles

• No examples listed in the regulations
• Likely to be developed by case law
• Aims must correspond to a real need of the
  employer
• Economic factors may be legitimate aims (e.g.
  business needs and considerations of efficiency)
• BUT discrimination not justified simply on cost
• c.f. sex discrimination

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Legitimate Aims General Principles

• ACAS / BERR Guidance
• Health, welfare and safety (including protection
  of young or older people)
• Facilitation of employment planning
• Particular training requirements
• Encouraging and rewarding loyalty
• The need for a reasonable period of employment
  before retirement
• Recruiting or retaining older people
• The retailer of trendy fashion items example

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Proportionality General Principles

• Once a legitimate aim has been identified
  employer will need to assess proportionality
• Balance discriminatory effect against the
  legitimate aim
• Treatment or PCP must contribute to the pursuit
  of the legitimate aim
• Employer should not discriminate more than
  necessary

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Tribunal Cases

• Bloxham v Freshfields (retirement benefits)
• Set up a working group to look into options
• Consultation with partners in the firm
• Amended proposals following feedback
• Scheme implemented with 78 support
• Transitional arrangements put in place
• Took expert advice on impact of reforms
• Legitimate aim of reducing intergenerational
  unfairness in scheme
• No less discriminatory alternative available

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Tribunal Cases

• Swann v GHL Insurance Services (Flexible benefits
  package)
• Part of package included private medical
  insurance whose premiums calculated according to
  age and gender
• Aim of benefiting recruitment and retention of
  staff legitimate
• Company made all reasonable efforts to offer
  package most beneficial to staff
• Genuine and fairly held intention of employer
• Taking (and relying on) professional advice
• Staff survey

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Tribunal Cases

• Seldon v Clarkson Wright (compulsory retirement)
• Partnership retirement age of 65 discriminatory
  and could not be justified
• Legitimate aims of retaining associates,
  facilitated workforce planning and contributed
  to a congenial and supportive culture by
  limiting compulsory expulsion of under performing
  partners
• BUT partnership failed to show actions justified
• Not sufficient evidence to show that partners at
  around 65 experienced performance difficulties or
  age a factor in underperformance
• No absolute requirement for concrete evidence of
  failing partners more important to show thought
  process

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Questions

• ?