• Employment law update
  • Equality Act
  • And another new law - the Bribery Act
  • New regulations on European works councils
  • Possible changes to the Vetting and Barring Scheme
  • Some interesting cases
    • Discipline - grievances raised during disciplinary proceedings
    • Discrimination - age and qualifications
    • Whistle blowing - protection extends to disclosures in prior employment
• New on the website
• And finally....
  • Increase in employment tribunals?
  • Some absence statistics
  • Discrimination on grounds of height?
• BusinessHR HRCare services
• This month's hot topic

The Equality Bill has finally made it, is now retitled the Equality Act 2010 and just awaits Royal Assent. The majority of its provisions are expected to come into force in October 2010, with the remainder being brought in by 2013 as follows:

• October 2010: the main provisions, prohibiting discrimination in the workplace and in the provision of goods, liabilities and services, will replace our existing discrimination legislation
• April 2011: the public sector equality duty, the socio-economic duty and dual discrimination protection (ie a person can bring a claim on the grounds of more than one characteristic) come into force
• 2012: the ban on age discrimination in the provision of goods, facilities, services and public functions
• 2013: private and voluntary sector gender pay transparency regulations and the requirement on political parties to publish diversity data will take effect (if required)

The main aim of the Act is to harmonise discrimination law to cover all protected characteristics (age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships). And it's not just those who have the protected characteristics themselves that are covered - it extends to discrimination by association or by perception.

We've covered the development of the Act on so many occasions since it was first mooted in 2005. The final changes were:

• adding the power to prohibit "caste discrimination" - or social standing in the Hindu and Sikh communities - if this is later found to be a problem
• "reasonable adjustments" for disabled people include providing information in accessible formats if the way information is provided would otherwise put them at a substantial disadvantage
• ensuring that people who conduct religious marriages can continue to opt out if they reasonably believe a marriage involves someone who has changed gender
• extending protection against discrimination because of pregnancy and maternity to school pupils
• adding provisions that can be used to require political parties to publish anonymous information on the diversity of their candidate selections - as a means of increasing transparency on the involvement of all groups in the political process
• removing the prohibition on civil partnerships taking place in religious premises
• clarifying that 'substantial' (used in relation to the disability provisions) means something which is not minor or trivial.

Note that if the Conservatives win the election, they may choose not to implement the provision that allows employers to recruit from an under-represented group when they have the choice between two or more candidates who are 'as qualified' as each other, and also they have said that they would not require employers with 250 employees or more to publish their pay statistics to demonstrate how they are tackling the gender pay gap. (Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.)

For further details you can read our guide to the Equality Act: /docs/legal/equalitybill.html or download

• all 210 clauses and 28 schedules contained within the 251 pages of the Act itself - see www.opsi.gov.uk/acts/acts2010/pdf/ukpga_20100015_en.pdf
• 215 pages of explanatory notes: www.opsi.gov.uk/acts/acts2010/en/ukpgaen_20100015_en.pdf
• 261 pages of the impact assessment: {HTTP://www.equalities.gov.uk/staimm6geo/pdf/Equality Act Impact.pdf}
• or a 12 page easy read guide: {HTTP://www.equalities.gov.uk/staimm6geo/docs/The Equality Bill.doc}

Please note that the related documentation on our website (eg equal opportunity, diversity and harassment policies, application form, pay review letters) will all be amended in plenty of time for October.

Strictly speaking, not employment law, but since it does impact on employees we thought this should be mentioned!

The Bribery Act has now received Royal Assent and is expected to come into force on 1 October 2010.

The Act introduces general offences of offering or receiving bribes, a specific offence of bribing a foreign public official, and the new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (it will be a defence if the organisation has adequate procedures in place to prevent bribery). It will also be easier for the Serious Fraud Office to prosecute bribery and corruption offences and if convicted, companies face unlimited fines and individuals face up to ten years in prison.

If bribes are paid by or on behalf of an organisation (either by employees or agents acting on behalf of the company), the company can be prosecuted for the new strict liability offence of failing to prevent bribery.

The Secretary of State will publish guidance about procedures that commercial organisations can put in place to prevent bribery, but has indicated that this is unlikely to be prescriptive, so, particularly if you are about to review your handbook or policies, it's worth starting to consider now what reasonable steps should be taken to prevent bribery and corruption. This may include:

• a clear code of conduct or robust HR policies which cover business ethics, ban bribery and include clear, tight rules on accepting/giving corporate entertainment and gifts and declaring these - see our template policies on business ethics and also on business gifts and hospitality: /docs/TPcontract.html
• training of staff on ethical business practice
• appropriate disciplinary action taken if the rules are breached - you may want to add to your list of gross misconduct offences on your disciplinary procedure if you don't already cover this - /docs/pol/discipline/index.html
• tight financial controls - especially regarding expenses whilst entertaining business contacts and purchasing decisions - see our guide also to preventing fraud - /docs/guides/fraud.html
• better due diligence on agents and business partners and careful management of these
• procedures to check that the rules are being followed, and a process to review these as necessary.
• a whistle blowing policy may also help to ensure that wrong doing is discovered and reported.

Note that bribery is not just about money - more discreet forms of bribery such as offering a commercial advantage or offering and receiving lavish gifts also come under the Act.

To view the Act, see www.opsi.gov.uk/acts/acts2010/ukpga_20100023_en_1

The final regulations to implement the 2009 European Works Council Directive have now been published.

These take effect on 5 June 2011 and are the "Transnational Information and Consultation of Employees (Amendment) Regulations 2010" and sit alongside the existing Transnational Information and Consultation of Employees Regulations 1999, which are amended but not repealed.

The maximum penalty for non-compliance is increased from £75,000 to £100,000.

As the regulations only affect employers with 1,000 plus employees throughout the European Economic Area and at least 150 employees in two separate EEA states we do not cover them in detail here - see our page on consultation for further details: /docs/legal/consult.html Alternatively, the final regulations are on www.opsi.gov.uk/si/si2010/pdf/uksi_20101088_en.pdf and the Government guidance on the regulations is on www.bis.gov.uk/assets/biscore/employment-matters/docs/10-888-transnational-information-consultation-regulations-2010-guidance.pdf

The Vetting and Barring Scheme (VBS) aims to protect children and vulnerable adults by preventing people who may present a risk of harm from working with them.

Two separate consultation exercises are looking at individual aspects of the scheme:

• the first relates to "controlled activity" within posts in the further education, health-care, and local authority sectors and asks whether this category should be reduced or removed entirely, by moving some posts into regulated activity, and removing others from regulation by the VBS. Views are sought by 17 June 2010.

• the second concerns the existing statutory requirements for Criminal Records Bureau (CRB) disclosures, in relation to workers who will, in the future, be registered with the Independent Safeguarding Authority (ISA) under the VBS. It asks whether the Government should amend requirements or recommendations in some of these cases. Consultation closes on 16 June 2010.

Full details of both can be found at www.dcsf.gov.uk/consultations

Discipline - grievances raised during disciplinary proceedings

The suspension of a disciplinary hearing, in order to hear and resolve a grievance raised during this, is becoming increasingly common and can be very frustrating for employers who feel that the grievance is not merited and simply provides a convenient way of delaying resolution of the problem. The ACAS Code of Practice states: "Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently." Most employers play safe and put the disciplinary on hold - but this can delay things especially if the grievance procedure is followed through all stages prior to resuming the disciplinary hearing (and some employers still have more than one stage of appeal).

The Employment Appeal Tribunal has considered whether it is fair to proceed with a disciplinary hearing, when a formal grievance is still being pursued and decided that, in this case, the employer was entitled to proceed (note that the initial grievance hearing had been completed - it was the appeal stage which was outstanding).

The case is Samuel Smith Old Brewery (Tadcaster) v Marshall and Marshall.

The claimants were a husband and wife team who were jointly employed as pub managers. When financial pressures resulted in the brewery telling them to significantly reduce the number of staffing hours at the pub, they raised a grievance on the basis that the reduction would result in them having to work unacceptably long hours themselves. Their grievance was heard and rejected and they were told to implement the new hours immediately. They appealed against this.

When they continued to refuse to reduce the staff hours, disciplinary action commenced. Following advice from their trade union, the claimants repeatedly refused to attend a disciplinary hearing until their appeal against the grievance decision had been heard. The disciplinary hearing was eventually heard in their absence and they were dismissed for gross misconduct, for their failure to follow a reasonable management instruction.

The original employment tribunal decided that they were unfairly dismissed, and said that the grievance appeal should have been heard before the disciplinary hearing.

However, the Employment Appeals Tribunal (EAT) disagreed! It said that there is no requirement to complete an entire grievance procedure (including an appeal) before a disciplinary hearing can take place. The judge suggested that: "it can only be in the rarest of cases that it would be outside the range of reasonable responses for an employer to proceed with a disciplinary process before hearing a grievance appeal, at least in the absence of some clear evidence of unfairness or uncompensatable prejudice."

The EAT therefore said the dismissal was not unfair. The judge emphasised that this was not a case where there had been no grievance hearing at all and commented that the claimants could have reduced the staff hours "under protest", pending the outcome of their appeal.

Discrimination - age and qualifications

We have previously reported on the case of Homer v Chief Constable of West Yorkshire Police but now have the next stage outcome.

The police had introduced a new salary and promotions structure under which qualification to degree level was necessary for eligibility for the top band. Mr Homer, an internal legal advisor, complained of indirect age discrimination when he was not promoted to the top level because of his lack of a law degree. He was aged 61 and would not have time to complete a law degree before he retired at age 65.

The Court of Appeal agreed with the previous decision of the EAT that it was not discriminatory on the grounds of age to require a degree in order to be promoted. The Court of Appeal confirmed that in this case the barrier to Mr Homer's progression was not one of age, but of retirement from the workplace before being able to obtain the qualification. As this would apply in the same way to anyone else who stopped working before qualifying, there was no inequality on the grounds of age.

Interestingly, the courts did not address indirect age discrimination caused by the fact that access to degree level education is now more accessible and young people are more likely to have a degree - but Mr Homer had not based his arguments on this, but argued purely on the grounds of his inability to complete the qualification in time.

Whistle blowing - protection extends to disclosures in prior employment

It's odd to have two cases of whistle-blowing in one newsletter! In BP plc v Elstone, the EAT decided that there is nothing to prevent a worker from bringing a claim against his/her current employer if he/she feels that he/she has suffered a detriment from the current employer because of a protected disclosure made whilst employed by a previous employer.

In another whistle-blowing case which went to the EAT, Goode v Marks & Spencer, the employee tried to claim protection under the whistle-blowing regulations after contacting the Times and completing a survey giving his opinions about his employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme. He was unable to show that Marks & Spencer was likely to fail to comply with any of its legal obligations, and his actions were not therefore a protected disclosure.

It's 10 years since the Public Interest Disclosure Act came into force, and the charity Public Concern at Work has published a report which calls on the Government and employers to do more to encourage people to speak up about malpractice or wrongdoing. More than 7000 tribunal claims have been made under the Act, with the average award to successful claimants being £133,678. Copies of the report are available at www.pcaw.co.uk.

We've amended and updated our absence and sick pay, training and development and maternity and adoption policies and guidelines to reflect the recent changes in legislation. See: /docs/TPcontract.html We've also added a page on restructuring - see /docs/sbs/restructure/index.html

The Government has published its latest report on employment tribunal applications. The report is based on a survey of a random sample of 4,027 employment tribunal cases, brought in 2008.

Some of the key findings were as follows:

• claimants were more likely to be men (60%), managerial workers or aged 45 or over
• 72% of cases were private sector ones
• small workplaces (1-24 employees) were over-represented
• 25% of claimants belonged to a trade union
• it was no more likely for a case that had had mediation to be settled privately or withdrawn than any other outcome
• representation by solicitors was significantly higher among employers, and there was a marked decline in the proportion of claimants being represented
• successful claimants were less likely to have been provided with a written statement of their terms and conditions than those who were unsuccessful
• 58% of cases were settled (39% through ACAS and 19% privately). Of the remainder, 12% were successful; 8% unsuccessful; 15% were withdrawn and the remaining cases were dismissed, disposed of or had another outcome.

The full report makes interesting reading - see www.bis.gov.uk/assets/biscore/employment-matters/docs/10-756-findings-from-seta-2008.pdf

Are we likely to see an increase in cases? The Daily Telegraph would have us believe so! It reported that research by law firm Dickinson Dees found that if employment laws continue to be enacted at the present rate, the number of tribunals will rise by 46% over the next three years - an increase of 370,000 claims, costing about £2.6bn.

The Office of National Statistics (ONS) reports big variations in sickness absence rates between occupations.

The highest levels of absence were in customer services (such as call centres), and in textiles, administration and "design associate professionals". Those working in the areas of sports, printing, legal professionals and transport associate professionals were least likely to take time off sick, and train drivers have the lowest rate of sickness absence in the UK. Public sector employees were more likely to take a day off sick (2.9%) than those employed in the private sector (2.4%).

The full report can be found at www.statistics.gov.uk/elmr/11_08/downloads/ELMR_Nov08_Leaker.pdf

But the cost of working when ill ("sickness presence") could match or account for 1.5 times more working time lost than the cost of sickness absence! The Work Foundation has produced a study investigating the links between sickness presence and individual performance. "Why do employees come to work when ill?" found that sickness presence was more common than absence, with 45% of respondents reporting working one or more days when unwell and just 18% reporting one or more days' absence over the same four-week period. So low levels of sickness absence may not tell the whole story!

Women's clothes retailer Long Tall Sally commissioned some research which throws a new angle onto possible new areas of discrimination!

They found that women over 5ft 8in were twice as likely to earn more than £30K per year, and earnt an average of £5K more per year than their shorter colleagues. One commentator attributed this to the greater authority and confidence that tall people are perceived to have.

Now, which of our clients' job evaluation schemes or equal pay audits have looked at this factor we wonder?

Finding it difficult to keep abreast of all of the above changes?

Why not let us help you? We can review your contracts, handbook and HR policies, advise on any suggested additions and update them for you - and then keep them updated. Take a look at our HRCare range of services: www.businesshr.com

We are looking to expand further and need people to assist us with our business development on a regional basis. As this would be on a self-employed, commission basis, we are therefore looking for people who already have an established business base, good networking skills and a knowledge of HR or business consulting and who feel they could help us grow our business.

If you are interested, call our MD, David Lennan, on 07736 775767 for an informal chat, or email him at david.lennan@businesshr.com.

This month's hot topic will cover pre-recruitment checks.

Note: hot topics are only sent to subscribers. If you receive our newsletters only and are interested in subscribing to our wider services, please take a look at /intro/index.html