Employment and Immigration Law Legal Updates 5/8/2008

Acas publishes its 2007/08 Annual Report

Despite rising employment tribunal claims:

• Employment tribunals and potential employment tribunal claims passed to Acas for conciliation rose a quarter from last year.
• Acas conciliation reduced the potential work load of Employment Tribunals by 75%, slightly increased from last year.
• 81%, compared to a 70% target, of workplaces reported an improvement in employment relations following intervention by Acas advisers.
• 76%, compared to a target of 65%, of users said that Acas' guidance helped solve a problem at work or reassured them they had taken the right course of action.

Statistics taken from the Acas website and the Acas 2007(08) Annual Report.

Disability Discrimination: Associated Discrimination

Find out the latest developments in associated discrimination and how this new development could give carers a new course of action claiming disability discrimination.

Background

You may be aware of the case of Coleman v Attridge Law. Back in 2005/2006, Miss Coleman brought a claim in the Employment Tribunal (ET) against Attridge Law, claiming that she had been unfairly constructively dismissed and discriminated against contrary to the Disability Discrimination Act 1995 ('the Act'). Miss Coleman is not disabled but it was accepted by the ET that her son was disabled within the meaning set out in the Act. Miss Coleman claimed direct discrimination, disability related discrimination, harassment and victimisation, on the grounds that she was a carer for a 'disabled person', her son.

The ET had to decide whether Miss Coleman could bring a claim for disability discrimination on the grounds of 'association' with her son.

The Act was amended in 2003 in order to bring it into line with an EC Directive, establishing a general framework for equal treatment in employment and occupation ('the Directive'). The questions the ET had to answer were:

1. Whether the Directive prohibits disability discrimination by association;
2. If so, whether the Act is in line with this or whether it can be interpreted in this way; and
3. Whether the question of interpretation of the Directive should be referred to the European Court of Justice (ECJ).

The ET decided that the case should be referred to the ECJ and Miss Coleman's unfair dismissal and disability claims were stayed pending this decision. The Employment Appeal Tribunal (EAT) upheld the ET's decision to refer the case. The EAT decided that the Act could be interpreted to take account of associative discrimination and that the ECJ should decide whether this interpretation was necessary in accordance with the Directive.

The Decision

At the start of this year, the Advocate General of the ECJ gave his opinion that the Directive does prohibit discrimination by association. The ECJ has now published its decision, agreeing with the Advocate General's opinion. Miss Coleman will have to return to the EAT to receive its Judgment on her claim but as the EAT has already confirmed that the Act can be interpreted to take account of associative discrimination, the ECJ's ruling could pave the way for other claims of this nature.

This is an important mile stone for disability discrimination, of which employers should take note. The decision means that employers will need to be extra vigilant of the legal framework in this area, which is likely to work mostly in favour of carers similar to Miss Coleman.

A Reminder of the Law

Carers are afforded time off from their employment in order to deal with emergencies relating to their dependants. They also have the right to make a request for flexible working in relation to their duties to their dependants.

The Effects

This new development could give carers a new course of action if they are treated less favourably on the grounds of their duty as a carer for a person with a disability within the meaning set out in the Act. It could also potentially see carers claiming disability discrimination if an employer refuses their request for flexible working.

Given that the Directive deals with discrimination as a whole, we could also see the same effects of the case being applied to age and sex discrimination legislation.

Social networking and blogging: Top tips on avoiding the pitfalls

There is an ever increasing trend for employees to network online with social networking and blogging sites becoming part of everyday culture. But what are the areas of risk for an employer and how can effective solutions be put in place to guard against these?

The pitfalls

An employer may fall into the trap of thinking: why should I not use widely available public information in my favour, for example in the recruitment process, to establish background on candidates?

People will often post on their Facebook or Bebo profiles personal details such as their age, sex, race, sexual orientation, religion or political views.

Whilst the law would not prevent an employer from viewing prospective employees personal profiles, this would not be viewed as best practice. It may lead to employers decisions as to who to recruit, being influenced by applicants age, race, sex etc. This would be contrary to the widely adopted practice of separate equal opportunities monitoring which takes out of an application process an individuals age, ethnic background, sexual orientation, religion or other potentially discriminatory factors.

Such practices would also increase an employer's exposure to claims of discrimination, opening up the possibility for candidates who are not selected to argue that an employer relied on potentially discriminatory factors which it discerned from its internet checks, for example not employing a candidate as they are too old for the position.

It would also lead to unequal treatment of candidates and increased potential for discrimination claims as there are some candidates who will have posted no information online and the level of information available will differ between others.

If an employer was to go ahead and access the candidate's online profile and reject the candidate because for example they discovered photographs of anti-social behaviour there would be no legal comeback provided the reasons behind this were not attributable to the person's race, age, sex, religion or other protected factor.

However, if an employer is a public authority it may be possible for an employee to assert their rights under the Human Rights Act to Freedom of expression and argue it is unlawful to refuse employment on the basis they are just making their opinion known publicly. It may also be possible for an employee to argue a breach of their right to private life although this is unlikely to be successful as the information is already publicly available.

What about protection for an employer regarding information posted by the employee regarding its business?

It is important to draw a distinction between comments which an employee posts on their 'blog', Facebook page or other similar site that can be considered defamatory enabling an employer to take libel action, those which destroy the relationship of trust and confidence, and those which breach employees' implied contractual duties of fidelity and good faith and those which do not cause any damage to the employer.

If the published comments damage the employer's reputation or the relationship of trust and confidence, disciplinary action (or if sufficiently serious dismissal) could be an outcome. If an employee was to reveal the employer's trade secrets online or other information breaching the duties of fidelity and good faith the employer could be entitled to take action for removal of this information, claim for their losses and use this as grounds for disciplinary action, which could lead to dismissal.

If comments do not damage the employer but bring the business into disrepute this can be classed as misconduct and appropriate disciplinary action may be possible.

Is it possible to stop employees using networking sites at work and monitor access?

It is possible to prevent employees using office equipment and connections to the internet for personal use by blocking access to sites such as Facebook. Alternatively employees can be restricted to using these sites out of working hours only and it is advisable for an employer to have a clear internet usage policy.

Having a clear personal e-mail and internet usage policy applicable to all employees which sets out what is and is not permitted use and detailing the sanctions for breaches of the policy reduces the risks that a dismissal for breaching this will be held to be unfair.

It is possible to monitor the extent of personal usage of the internet with or without employees' consent however there should be clear notification to employees of precisely what is being monitored. Benefits of monitoring the content of what is written by employees may be outweighed by the costs of detection however provided employees have been made aware of precisely what is being monitored this is permissible.

Employer liability for harassment

An employer can be held vicariously responsible for harassment by one of its employees to another in the course of employment under discrimination law. This could happen, for example, by an employee sending offensive e-mails regarding another employee's race by company e-mail or making race-related comments on the employer's intranet systems. An employer should take reasonable steps to prevent their systems being used for this purpose.

Although there is no case law yet dealing with social networking sites it is arguable that an employee can be considered to be acting in the course of their employment in many circumstances and it is quite possible a tribunal could find an employer liable for harassment by one of its employees to another for comments posted on a site whilst at work. An employer's policy should make it clear this conduct will be treated as harassment subject to discipline in the same way as harassment by e-mail or face- to face.

Overcoming the pitfalls

Whilst an internet and e-mail policy should cover social networking and blogging it should provide clear guidance on the following:

What, if any, personal internet use is permitted and when this can take place, during breaks, before or after work so the employee is not prevented from performing their role;

The consequences if an employee defames the employer, damages its reputation or breaches confidentiality in the information posted on social networking or blogging sites or makes offensive, defamatory or discriminatory comments. For example this will result in disciplinary action which can lead to dismissal;

That the employer does not permit use of a work e-mail address to register on these websites;

The reasons, degree and background to the monitoring of e-mail and internet usage.

Although the simplest way to avoid complication may be to ban use at work of social networking and blogging sites entirely with a concise and clearly drafted computer and internet policy the opportunity for these pitfalls to arise could be minimised.

If you would like advice, assistance, in renewing your existing policies or drafting a new policy to cover these issues, please contact the Employment team at noremp@steeleslaw.co.uk.