E-NEWS: 4 November 2002

Welcome to the latest edition of Enews produced by Steele & Co., Solicitors. In this issue we report on:

* NEW ANTI-DISCRIMINATION LEGISLATION
* WORKING FATHERS FEAR OF TIME OFF TO CARE FOR CHILDREN
* ENTITLEMENT TO PAID OVERTIME
* DISCRETIONARY SEVERANCE PAYMENT CASE
* DTI GUIDE TO UNFAIR DISMISSAL

NEW ANTI-DISCRIMINATION LEGISLATION

On 23.10.02 the Government published four sets of draft regulations which detail the proposed changes to current discrimination legislation. The new legislation is designed to implement the anti-discrimination rules set out in the Race Discrimination Directive 2000/43 and the Equal Treatment 'Framework' Directive 2000/78.

The Government has not yet proposed any regulations on the outstanding topic of age discrimination.

The Government is seeking views on the proposals and the consultation period ends on 24 January 2004.

The government has also published a separate consultation paper - 'Equality and Diversity: Making it Happen' with the aim of ensuring that the right framework to support equality legislation is obtained. Making it Happen considers the contribution of equality institutions such as the Equal Opportunities Commission and the Commission for Racial Equality to making equal opportunities a reality. The consultation paper proposed a range of options for future structures for these institutions, including the creation of a single equality commission.

Sexual Orientation

These provisions should come into force on 1 December 2003.

The sexual orientation regulations will prohibit direct and indirect discrimination on the grounds of sexual orientation. The draft regulations also define and prohibit harassment based on sexual orientation. The main scope and coverage of the draft regulations is very similar to the other parts of the race and sex anti-discrimination legislation.

Religion and belief

These provisions should come into force on 2 December 2003.

The religion and belief regulations, like the sexual orientation regulations, will introduce a concept of discrimination very similar to race and sex discrimination, with direct and indirect discrimination on grounds of religion or belief to be prohibited. Again, the draft regulations also define and prohibit harassment based on religion or belief.

The draft regulations provide that employers may treat people differently on grounds of religion or belief if a particular religion or belief is a genuine occupational requirement; or, in some circumstances, where the employer itself has an ethos based on religion or belief.

Disability

The disability discrimination provisions should come into force on 1 October 2004.

The disability discrimination amendment regulations will expressly prohibit harassment against a disabled person on the grounds of his/her disability. In addition the regulations will widen the scope of the provisions of the Disability Discrimination Act 1995 by removing the small businesses exemption so that businesses with fewer than 15 employees will now be caught. The draft regulations also extend the provisions of the Act to cover forms of employment which are currently excluded such as partnerships.

The draft regulations also make it clear that less favourable treatment of a disabled person cannot be justified on the basis of a blanket ban on the employment of persons with a particular disability. The regulations will also introduce a new section making it unlawful for a person to instruct or pressure another person into discriminating against a disabled person.

WORKING FATHERS FEAR OF TIME OFF TO CARE FOR CHILDREN

According to a new report from the Work Foundation entitled "Dad's Army", working fathers are not spending time with their children due to a belief that their employers discriminate against men who care for children.

The Maternity and Parental Leave Regulations 1999 state that an employee has the right to take up to 13 weeks unpaid leave for each child, if they have accrued one year's continuous service (including service with a previous employer) and have responsibility for a child. The leave must be taken to care for a child and the right to take leave normally applies during that child's first five years.

In addition to their statutory right to parental leave, fathers can also rely on the Sex Discrimination Act 1975, where they are treated differently to women working for the same employer. It would for example be discriminatory to refuse to allow a man to work part time, if the organization would allow a woman in similar circumstances to do so.

However, this report states that fathers are nervous about asking their employer for parental leave or flexible working in order to help them manage their childcare responsibilities. The consequence of this belief is that women continue to take on the majority of the childcare.

The Work Foundation therefore argue that until fathers feel that they are able to approach their employer with requests for parental leave and flexible working there will never be equality in the workplace for women.

ENTITLEMENT TO PAID OVERTIME

The recent case of Forbuoys v Rich EAT 19.4.02 [144/01] concerned a claim of unlawful deduction from wages in circumstances where the employee was not paid for overtime worked above the maximum 48 hour week set out in the Working Time Regulations 1998.

The employee's contract of employment stated that she was required to work such days and hours including Sundays, as were necessary to ensure the efficient conduct of the branch. However, the contract of employment stated that overtime would only be paid if it was specifically authorised by the Company. The employee claimed payment for the hours she had worked in excess of the 48 hour maximum.

The Employment Tribunal found that the employee was entitled to the overtime payments and that the employer's failure to make these payments was an unlawful deduction from wages. The Employer however appealed this decision to the Employment Appeal Tribunal ("EAT"). The EAT found that the employee had no right to the overtime payments, as the Company had not authorized the overtime. The position was found not to be affected by the Working Time Regulations 1998 and therefore the appeal succeeded.

DISCRETIONARY SEVERANCE PAYMENT CASE

The recent case of Campbell v Union Carbide Ltd EAT 15.3.02 [0341/01], concerned a claim for breach of contract and unlawful deduction from wages. The employee claimed that the employer had not paid to the employee on the termination of his employment a discretionary severance payment, which had in the past always been paid out.

Terms may be implied into a contract of employment if they are regularly adopted by a particular employer and the parties agreed that the terms should be part of the contract. However, if a benefit is only discretionary, despite the fact that it has been granted for a number of years, it will not necessarily amount to an implied term. This is illustrated by this case.

The Employment Appeal Tribunal ("EAT") upheld the decision of the Employment Tribunal in this case and stated that there was no legal obligation on the employer to pay the discretionary severance payment. The EAT stated that there was no intention to incorporate a term into the employee's contract of employment, which stated that the employer would pay to the employee an ex-gratia severance payment. They went further to state that the fact that the discretionary payments were always made did not amount to custom and practice of a contractual term and therefore the term could not be implied. Following from this the EAT stated that as the discretionary payment was not a term of the contract of employment, the employee could not claim unlawful deduction from wages as he was never entitled to this payment.

DTI GUIDE TO UNFAIR DISMISSAL

he DTI have recently updated their website and now provide a helpful guide on unfair dismissal. The guide discusses the types of dismissal that can take place, the procedure for making a complaint to the Employment Tribunal and such issues as conciliation, tribunal hearings and potential levels of compensation. This guide should prove useful to employers as a point of reference in the event of a possible dismissal.

The DTI website is www.dti.gov.uk.

WE CAN HELP YOU:

Please use the links on this page if you:

* Want to receive more information/advice on any of the matters in this edition (please give details of the matter you require advice on).

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Managing sickness absence/stress in the workplace
Misconduct and the disciplinary procedure
Poor performance
Handling redundancy situations
Avoiding unlawful discrimination claims
Avoiding unfair dismissals
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* If you are interested in finding out more about such training please do not hesitate to give us a call.

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This article copyright © 2002 Steeles Law. All rights reserved.