Employment Update & Training Day

1. Employment Update & Training Day Alison Bell 29 January 2008

2. Introduction • Update on Recent Legislation • Forthcoming Legislation • Age Discrimination • Managing Diversity and dealing with Grievances • Case Studies & Small Group Work • Questions & Answers

3. Recent Legislation

4. Work and Families Act 2006 • Maternity and adoption leave • Maternity pay • Adoption pay • Flexible working • Additional paternity leave and pay

5. Maternity and adoption leave • Additional maternity leave: removal of qualifying period • Extension of notice of return • ‘Keeping in touch’ days • Reasonable contact • Removal of small employer exception

6. Maternity pay • 39 weeks’ maternity pay • Administration of statutory maternity pay • Impact of ‘keep in touch’ days • Age discrimination issues

7. Adoption pay • 39 weeks’ adoption pay • ‘Keeping in touch’ days • Administration of statutory adoption pay

8. Flexible working • Extension of the right to request to employees with caring responsibilities for adults • eligibility • 26 weeks qualifying services; and be or expect to be, caring for a person aged 18 or over who: • is married to, or is the partner or civil partner of the employee or • is a relative of the employee or • lives at the same address as the employee • Deadline for making an application • Further amendments – children over 6?

9. Additional paternity leave and pay • Not yet in force • 26 weeks leave (in addition to two weeks) • Eligibility • employed fathers and partners • responsible for upbringing of child • minimum period of service? • mother must have returned to work? • Commencement of leave – not earlier than 20 weeks from date of birth • One block – eight weeks notice • Reasonable contact and ‘keeping in touch’ days • Terms and conditions during leave

10. Working Time Regulations (1) • A full-time worker is entitled to 4.8 weeks’ (24 days) annual leave in each leave year • From 1 April 2009 this will increase by a further 0.8 weeks to 5.6 weeks (28 days) • BUT workers cannot be entitled to more than 28 days’ statutory leave as a result of the increases

11. Working Time Regulations (2) The increase in the statutory holiday entitlement: • May not be replaced by a payment in lieu, save on termination or during the initial transitional phase prior to 1 April 2009; • May be carried forward into the next holiday year, if a relevant agreement provides for this.

12. Other Changes • Establishment of Equality and Human Rights Commission • Racial and Religious Hatred Act 2006 – an act of religious hatred in the workplace could amount to a new criminal offence of stirring up racial hatred punishable by fine or imprisonment • National Minimum Wage Increase – NMW has increased to £5.52 for workers aged 22 and over; £4.60 for workers aged 18-21 and to £3.40 for workers aged 16-17 • ICO Guidance on Personal Data published

13. Forthcoming Legislation

14. Forthcoming legislation (1) • The Tribunals, Courts and Enforcement Act 2007 • Sex Discrimination Act 1975 – amendments following the EOC challenge in the spring –“at the earliest opportunity” • Employment Bill • Information and Consultation of Employees – will affect undertakings of more than 50 employees – April 2008

15. Forthcoming legislation (2) • Corporate manslaughter – new offence of corporate manslaughter along with the rest of the Corporate Manslaughter and Homicide Act 2007 – 6 April 2008 • Single Equality Act • Holidays increase to 5.6 weeks – April 2009 • Increase in paid maternity leave and introduction of additional paternity leave – 2010

16. A year of living with the Age Discrimination Legislation Alison Bell 29 January 2008

17. Newsworthy Issues • Ming Campbell “too old to fight an election”? • Royal family – no 64+ applicants • Freshfields 4.5 million pension case

18. Overview • Damp squib? • Few reported cases • Ageist behaviour continues (EFA survey) • Stereotypical assumptions still trumping demographic trends? • More rigid application of NRA

19. Statistics • 2000 ET cases in 1st year • 200 new ET claims pm • 6 x religious/SO discrimination • Most from older workers • London and East of England have highest rates of claims

20. Cases • Palacios de la Villa v Cortefiel Servicios SA [2007] All ER (D) 207 (Oct) • Johns v Solent SD • Lloyd-Briden v Worthing College [2007] All ER (D) 261 (Jun) • Bloxham v Freshfields Bruckhaus Deringer 220506/2006 (ET)

21. The problem areas • Recruitment • Retirement & Termination - other discrimination, especially disability • Benefits • Youth claims - overlooked?

22. Typical Queries • Ageist comments • Age-related benefits (PHI cost) • Interlinked with DDA risk • Redundancy selection criteria (salary) • CRP differences (not mirroring SRP age-steps) • Promotion issue –more recent interview experience

23. Retirement Issues • Lower retirement age • Claim because no reason given • Where retirement date falls short of 65th birthday (preceding day!) • Retired employee reapplies for own job!

24. Managing Diversity and Dealing With Grievances

25. Content • Introduction • The consequences of not managing diversity • Summary of forms of discrimination • Disability Discrimination: The law, right or wrong, practicalities • Sex Discrimination: The law, right or wrong, practicalities • Race Discrimination: The law, right or wrong, practicalities • Dealing with grievances • Key points • Diversity training to employees

26. Introduction • What does discrimination mean to you? • What does diversity mean to you? • Who is responsible?

27. The consequences of not managing diversity • In 2006 UK employers spent £210m a year on Employment Tribunal claims • In 2007 it is estimated that UK employers will spend £360m on Employment Tribunal claims (70% increase) • Around 30,000 Employment Tribunal claims are lodged each year • Both individuals and employers can be held liable in cases of discrimination

28. Summary of forms of discrimination • Disability • Sex – men and women (including pregnancy, maternity leave and marital status) • Race – nationality, colour, ethnic or racial or national group • Age • Sexual orientation • Religion or belief • Gender

29. Disability discrimination (1) the law • What is a disability? • Meaning of discrimination: • “a person discriminates against a disabled person if- • for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, without justification; or • he fails to comply with a duty to make reasonable adjustments….”

30. Disability discrimination (2) the law • Meaning of victimisation: • ….a person (“A”) discriminates against another person (“B”) if- • he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s because B has: • brought proceedings against A or any other person under this Act; or • given evidence or information in connection with such proceedings brought by any person against A or any other person under the Act; or

31. Disability discrimination (3) the law cont’d • otherwise done anything under this Act in relation to A or any other person; or • alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or • A believes or suspects that B has done or intends to do any of those things.

32. Disability discrimination (4) the law cont’d • Meaning of harassment: • ….a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of- • Violating the disabled person’s dignity, or • Creating an intimidating, hostile, degrading, humiliating or offensive environment for him. • ….only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect”

33. Disability discrimination (5) right or wrong? • A new chair...... • A gift...... • Stress/depression – return to work...... • Requests from employees......

34. Disability discrimination (6) practicalities • Identifying a person with a disability • Ask a disabled person on regular occasions what, if any, support is required • learning difficulties • visually impaired • mobility • hearing impaired • Keep a paper trail

35. Sex discrimination (1) the law • Meaning of discrimination: • women, men, gender reassignment, pregnancy, maternity leave, married persons, civil partners • “….a person discriminates against a woman if- • on the ground of her sex he treats her less favourably than he treats or would treat a man (direct discrimination); or • he applies to her or all persons a requirement or condition which indirectly results in a detriment to women, without justification irrespective of the sex of the person”.

36. Sex discrimination (2) the law cont’d • Meaning of victimisation: • a person (“A”) discriminates against another person (“B”) if he treats the person victimised less favourably….because A has- • brought proceedings against A or any other person under this Act or the Equal Pay Act 1970 (or Sections 62 to 65 of the Pensions Act 1995); or • given evidence or information in connection with proceedings; or

37. Sex discrimination (3) the law cont’d • otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 (or Sections 62 to 65 of the Pensions Act 1995) in relation to B or any other person; or • alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention or this Act, the Equal Pay Act 1970 (or under Sections 62 to 65 of the Pensions Act 1995); or • by reason that A knows that B intends to do any of those things, or suspects that B has done, or intends to do, any of them

38. Sex discrimination (4) the law cont’d • Meaning of harassment, including sexual harassment: • “a person subjects a woman to harassment if- • on the grounds of her sex, he engages in unwanted conduct that has the purpose or effect of- • violating her dignity; or • creating an intimidating, hostile, degrading, humiliating or offensive environment for her • he engages in any form of unwanted verbal, non-verbal, or physical conduct or a sexual nature that has the purpose or effect of • violating her dignity; or

39. Sex discrimination (5) • creating an intimidating, hostile, degrading, humiliating or offensive environment for her • on the grounds of her rejection or of submission to unwanted conduct, he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct. • only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect”.

40. Sex discrimination (6) right or wrong? • Tactile behaviour…… • Banter…… • Jokes…… • Postcards/calendars……

41. Sex discrimination (7) practicalities • Pregnant employees – assess any health and safety risk and take necessary steps • Never turn a blind eye and put up with unacceptable behaviour • Make sure your language/behaviour is appropriate to set an example • Keep a paper trail

42. Race discrimination (1) the law • Meaning of discrimination: • a person discriminates against another if- • on racial grounds he treats that other less favourably than he treats or would treat other persons (direct discrimination); or • he applies to that other or all persons a requirement or condition which indirectly results in a detriment to a racial group, without justification irrespective of colour, race, nationality or ethnic or national origins (indirect discrimination)

43. Race discrimination (2) the law cont’d • Meaning of victimisation: • a person (“A”) discriminates against another person (“B”)….if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has- • brought proceedings against A or any other person under this Act; or • given evidence or information in connection with proceedings brought by any person against A or other person under this Act; or

44. Race discrimination (3) the law cont’d • otherwise done anything under or by reference to this Act in relation to A or any other person; or • alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act; or • by reason that A knows that B intends to do any of those things, or suspects that B has done, or intends to do any of them

45. Race discrimination (4) the law cont’d • Meaning of harassment: • “a person subjects another to harassment….where, on the grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of- • violating that other person’s dignity; or • creating an intimidating, hostile, degrading, humiliating or offensive environment for him • only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect”

46. Race discrimination (5) right or wrong? • Banter…… • Social events……

47. Race discrimination (6) practicalities • Always keep a lookout for sectarian issues • Think carefully about social events • Never turn a blind eye and put up with unacceptable behaviour • Make sure your language/behaviour is appropriate to set an example • Keep a paper trail

48. Dealing with grievances (1) standard grievance procedure • Step 1: • the employee must set out the grievance in writing and send the statement or a copy of it to the employer • Step 2: • meeting held once employer has had reasonable opportunity to consider grievance • employee informed of decision and given right to appeal • Step 3: • appeal

49. Dealing with grievances (2) general requirements • Timetable • each step must be taken without unreasonable delay • Meetings • timing and location must be reasonable • conducted in a manner that enables both employer and employee to explain their cases • So what?

50. Key points • Take responsibility • Watchful eye and “nip in bud” at early stage • Deal swiftly and appropriately with grievances • Paper trail and communication • Deliver diversity training at regular intervals and keep a record of attendees