Resource: 2009 Legal Update from Women In Technology & Kingsley Napley

15Apr09

The Equality Bill
Following the July 2008 government response to the 2007 public consultation, the Queen’s speech in December 2008 announced the introduction of the Equality Bill to Parliament at some point within 2009. The aim of the Equality Bill is to significantly streamline and strengthen discrimination legislation in Britain by distilling nine pieces of historical legislation into a single Act. For the first time the spheres of sex, race, age, disability and religious discrimination will be updated and contained within a single piece of legislation.

In March 2009 the Equalities and Human Rights Commission urged the Government to exclude from the Bill parts imposing equal pay reviews on businesses, on the grounds that the economic climate is at present too fragile for them. Equal pay reviews are unpopular with businesses due to the considerable expense in conducting them and the legal action that often follows them when the disparities in pay between male and female employees are revealed. A spokeswoman for Harriet Harman, Minister for Women and Equality, has subsequently said that equal pay reviews had not been scrapped from the Bill and, in any event, were never on its agenda.

In March the Government confirmed that the Bill will be introduced to Parliament in April 2009. However, though it will be introduced in the current session of Parliament, it will probably linger there until the next (2009/10) session and some are of the opinion that an impending general election will delay further or even halt the Bill’s transition into law.

Flexible Working Rights
The Flexible Working (Eligibility, Complaints and Remedies) Amendment Regulations 2009 have made the right to request flexible working available to more employees. As of 6th April 2009 an extra 4.5 million parents of children aged 16 and under (up from the previous cut-off age of six) will be able to request flexible working from their employer. The new law merely extends pre-existing flexible working rights and thus parents of disabled children up to 18, as well as carers of adults, will retain their flexible working rights.

It is important to note that the law does not give an employee an automatic right to flexible working hours, it merely gives them the right to ask an employer whether they can work flexibly. However employers must seriously consider all applications submitted and only reject those where there are good business reasons for doing so. The (non-exhaustive) scope of flexible working rights which can be requested include: part-time, flexi-time, compressed hours, staggered hours, job sharing and working from home.

48 Hour Week Working Time Directive
In December 2008 the European Parliament voted to remove the UK’s opt-out from the Working Time Regulations (the “Regulations”), which would mean employees would not be allowed to work more than 48 hours per week on average over 12 week periods, prompting an ongoing debate over the issue at the EU Conciliation Committee in Brussels. Presently employees in the UK can choose to work more than 48 hours per week, should they desire. The UK traded off agreeing protection for agency workers (as set out below) in return for retaining the working time opt out.

The minister for employment relations, Pat McFadden, has rejected a 48 hour week for the UK and is in favour of retaining the opt-out from the Regulations. Many in Britain are also strongly against the removal of the opt-out, for reasons which are succinctly articulated by David Frost, director general of the British Chambers of Commerce: “It would be extremely foolish to try and end the UK’s opt-out, especially during a painful recession. The opt-out provides the essential flexibility that many businesses and their employees are relying on to get through this downturn.”

However, not all in the UK are in favour of continuing to opt-out from the Regulations. Trade Unions are in favour of restricting working hours, as evidenced by TUC general secretary, Brendan Barber, who favours an end to “dangerous long hours working.”

Agency Workers
As mentioned above the UK government undertook some deal broking in the EU to retain the UK’s opt out from the 48 hour working week. The trade off was that the UK has agreed to sign up to the Temporary Agency Workers Directive. This will have a fundamental impact on the users and providers of agency workers: at its most basic, after 12 weeks with one end user the agency worker will be entitled to equal treatment with comparable permanent employees. The UK has until 2011 to implement the changes and it was intended that the law would be altered in 2009. However given the current economic climate and a forthcoming general election it is unclear when the relevant laws will be passed.

Holidays and Sick Leave – Stringer and Others v HM Revenue & Customs
In the long running saga concerning holidays and sick leave the European Court of Justice has spoken in Stringer and Others v HM Revenue & Customs. The European Court of Justice stated that it is for national law to decide whether an employee can be prevented from taking holiday during sick leave. However if an employee is prevented from taking holiday during sick leave they must be permitted to take the leave, even if it is after the end of the holiday year. At present the Working Time Regulations prevent holiday being taken where an employee is on sick leave and prevent a worker who is on sick leave from taking holiday into a new year. We are awaiting the House of Lords’ judgement on this issue and the position under UK law remains unclear.

Associative Discrimination – English v Thomas Sanderson Blinds
This case was brought by a male employee, Mr English, who was subject to homophobic comments by his colleagues. Mr English was not homosexual and neither did his colleagues believe him to be homosexual. However the Court of Appeal held that the comments were on the grounds of sexual orientation and such behaviour fell squarely within the protection from harassment on the grounds of sexual orientation. In a dissenting judgment, Lord Justice Laws stated that the majority judgment confused the reason for the conduct with the nature of the conduct and that it could not be said that sexual harassment can arise from comments that were not based on anyone’s actual or perceived sexual orientation. Lord Justice Laws went further and said that he did not believe the EU legislature intend such conduct to fall within the scope of the legislation and if it did “this would amount not to a Pandora’s box, but a Pandora’s attic of unpredictable proportions”. Lord Justice Laws’ note of alarm will ring true for employers as this case may herald a wide extension of the scope of discrimination protection to comments which do not relate to the characteristics of any party concerned in alleged behaviour.

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