IN THE NEWS THIS WEEK:
* RADIO PRESENTER WINS RACE DISCRIMINATION CLAIM
* STATUTORY ANNUAL LEAVE WHEN EMPLOYMENT ENDS
* NEW SEX DISCRIMINATION REGULATIONS
RADIO PRESENTER WINS RACE DISCRIMINATION CLAIM AGAINST BBC
An employment tribunal in Shrewsbury has recently ruled that BBC Radio
Wales and it's Commissioning Executive had discriminated against an
English Presenter on the grounds of his national origin.
The claim came after the radio station did not re-commission a radio
presenter's award-winning show Landmark, which had run for ten years,
because he had an English accent.
The heart of the claim was a commissioning brief made by the Commissioning
Executive for a "strong Welsh voice". The Presenter, on winning the case,
is reported as saying: "I am thrilled. The BBC got rid of me saying I was
a dud broadcaster. The Judgment shows that to be rubbish."
Compensation as a result of this case will be awarded at a later date.
Claims of race discrimination must be centred on a complaint that the
individual was treated less favourably for reasons connected to colour,
race, nationality or ethnic/national origins. Case law has established
that the Scots, the English and the Welsh are all separate racial groups
for the purposes of the Race Relations Act 1976.
The case highlights the need to challenge the often-held belief that
victims of race discrimination are always from ethnic minority groups. It
also sends a message to employers that positive discrimination towards one
racial group is unlawful, unless there are genuine reasons relating to the
nature of the position which dictate that the worker should be of a
particular ethnic origin.
EMPLOYEES MUST BE PAID IN LIEU OF STATUTORY ANNUAL LEAVE NOT TAKEN WHEN
EMPLOYMENT ENDS
he Employment Appeal Tribunal (EAT) have decided, in the recent case of
Witley & District Mens' Club v Mackay [EAT 7.6.01 (151/00)] that
agreements not to pay the minimum statutory annual leave accrued under the
Working Time Regulations (WTR) on the termination of an employee's
contract of employment are void.
The WTR state that an employee is entitled to be paid in lieu of annual
leave accrued but not taken at the time their employment ends. However,
there is provision for the employer and employees to agree, by a term in
the individual contracts, or by collective agreement, the amount of any
such payment in lieu. Many employers and lawyers have taken this to mean
that there could be a valid agreement that the sum payable in lieu of
untaken holiday could be nil.
In this case an employee had a term in his contract that, if the dismissal
were on grounds of dishonesty, then the amount of holiday paid in lieu
would be nil. The employee was dismissed having admitted taking money from
his employers and at the time of the dismissal had accrued 26 days'
holiday. The employer refused to pay this, and the employee brought a
claim in the Employment Tribunal.
The EAT ruled that within the wording of the WTR, it was not open to an
employer to form an agreement whereby no accrued holiday pay would be paid
on the termination of employment. It is still, however, open to employers
to limit such a payment, and to specify this in an agreement. The ruling
applies only to statutory minimum and not contractual holidays in addition
to the statutory minimum.
NEW SEX DISCRIMINATION REGULATIONS
On the 12th October 2001 the new Sex Discrimination (Indirect
Discrimination and Burden of Proof) Regulations 2001 will come into force.
These Regulations make amendments to the Sex Discrimination Act 1975, in
order to implement Articles 2 and 4 of the EC Burden of Proof Directive
into the UK.
There will be two main changes as a result. These are:
1. The burden proof in sex discrimination cases will initially be on
the complainant to establish the facts from which the Tribunal may presume
that there has been sex discrimination. The burden will then shift to the
respondent to prove that there has been no such discrimination.
2. The definition of indirect sex discrimination. The amendment will
provide that indirect discrimination occurs where a person applies a
provision, criterion or practice to the detriment of a woman which would
also be to the detriment of a considerably larger proportion of women than
of men and which is not justifiable by factors unrelated to sex (applies
equally to the less favourable treatment of men).
The new Regulations will have little impact on the way in which sex
discrimination claims are decided by Employment Tribunals. Basically, it
is still the position that the complainant must make a prima facie case of
sex discrimination whereupon the burden passes to the respondent to
disprove the allegation.
Cases of indirect sex discrimination involve instances where an individual
is required to comply with a term of their contract, which they, and other
members of their sex find they cannot comply with. If proportionally
fewer members of the opposite sex would have the same difficulty, then
there may be indirect sex discrimination. An example would be requiring
employees to attend work early in the morning, as proportionally more
women have primary childcare responsibilities, it would be likely that a
greater number of women would be unable to comply, resulting in a
potentially discriminatory situation.
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