March 3 Employment Law Enews

Welcome to the latest edition of Steeles Employment Enews.

EUROPEAN RULING ON IVF AND PREGNANCY

In an Austrian case (Mayr v Backerei und Konditorei Gerhard Flockner OHG), the ECJ has recently considered the issue of whether female employees undergoing IVF treatment are protected from dismissal by the European Pregnant Workers Directive (92/85).

Facts

Ms Mayr was employed as a waitress and was undergoing IVF treatment when she was given notice of dismissal. On the date she was given notice, fertilised eggs already existed although they had not been transferred and implanted. She claimed that the dismissal had no effect since under Austrian law she was entitled to protection against dismissal during pregnancy. The Austrian Courts referred the issue to the ECJ to determine at what point the protection against dismissal took effect.

Held

The ECJ held that the Pregnant Workers Directive did not apply to a worker in Ms Mayr's situation, where the fertilised eggs had not yet been implanted. However, it concluded that she could potentially rely on the European Equal Treatment Directive (76/207), which prevents discrimination on the grounds of sex. Previous case law has established that the dismissal of a female worker for being pregnant or for a reason related to her pregnancy amounts to direct sex discrimination, since only women become pregnant. According to the ECJ, similar logic would apply in relation to IVF treatment and the Equal Treatment Directive would prevent the dismissal of a female worker who is at an advanced stage of IVF, if the dismissal was essentially based on the fact that the woman has undergone such treatment.

Comment

What is not yet clear from the ECJ's judgment is whether it would be unlawful to treat a woman less favourably for a reason related to IVF treatment, such as the amount of time she has taken off work, rather than because of the treatment itself. It is quite possible that this would also be protected, due to the close association of the treatment with pregnancy, so employers would be advised to treat employees who are undergoing IVF treatment with caution.

HOMOPHOBIC ABUSE AGAINST HETEROSEXUAL

In the recent case of English v Thomas Sanderson Blinds Ltd the EAT has held that homophobic banter against an individual who is known to be heterosexual is not harassment under the Employment Equality (Sexual Orientation) Regulations 2003. However, the EAT has granted leave to appeal this decision on the basis that the Regulations do not fully implement the EC Equal Treatment Framework Directive (which outlaws discrimination on the grounds of sexual orientation, religion or belief, disability and age).

Facts

Mr English worked for Thomas Sanderson Blinds Ltd ("Sanderson") between October 1996 and August 2005. After leaving Sanderson, Mr English brought a claim arguing that he had been subjected to sexual innuendo by his work colleagues to the effect that he was homosexual because he had attended boarding school and lived in Brighton.

The Tribunal had to decide whether Mr English had been harassed on "the grounds of sexual orientation" either because of his actual sexual orientation, his perceived sexual orientation, the sexual orientation of others (e.g. family members) or because he failed to discriminate against another on the grounds of sexual orientation.

The Tribunal held that as Mr English did not fall into any of the above categories he had not been harassed on the grounds of sexual orientation.

Held

Mr English's appeal was dismissed by the EAT. The EAT said that although his colleagues may have perceived him to have characteristics which they associated with a homosexual person, they did not actually perceive him to be homosexual and Mr English had himself admitted that this was the position.

However, the EAT did state that in its view, the Sexual Orientation Regulations and, in particular, the use of the phrase "on the grounds of sexual orientation" did not properly implement the EC Directive. Mr English was granted leave to appeal to the Court of Appeal.

Comment

The judgment by the EAT follows the High Court decision in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry, where it was held that the definition of sexual harassment under the Sex Discrimination Act 1975 ("SDA") did not fully implement the EC Directive. As a result of this decision, the SDA is due to be amended to bring it in line with the Directive which defines sexual harassment more broadly as "unwanted conduct related to the sex of a person".

If the definition of harassment in the Sexual Orientation Regulations is amended in a similar manner to the SDA then the protection afforded under the legislation will become significantly wider, covering not only those who are the actual subject of discrimination but also those who are teased on this basis.

IMMIGRATION UPDATE

The government is now in the process of introducing its new Points Based System. This represents the biggest change in the UK's immigration system for 40 years and will see a complete overhaul of the current system relating to about 80 Business and Student categories.

The Points Based System will be based on the Australian immigration system, with applicants needing to score points in one of five "Tiers" and with the exception of Tier 1, includes the requirement of a sponsor. The five Tiers will incorporate all of the current 80 Business and Student categories (as well as that of Working Holiday Maker).

One of the significant changes introduced by the Points Based System is that it combines the current two stage application process for both Highly Skilled Migrant and Work Permit applications into a single application made by the individual only.

Changes to the Work Permit Scheme

Under the new Tier 2 the work permit system is being replaced by employer sponsorship, which will enable licensed employers to issue certificates of sponsorship to the individual applicant provided they meet specific criteria.

Any UK Employer who needs to employ an individual under a Work Permit, after implementation of this scheme (likely to be 1st October 2008) will need to have made a successful application for a licence as a sponsor. The application process involves an online application and simultaneous filing of the necessary documentation.

Key dates

29th February 2008: New measures, including the introduction of Civil Penalties of up to 10,000 pounds per illegal employee, designed to help tackle illegal working, came into force.

Also from this date all Highly Skilled Migrants currently working in the UK who want to extend their stay or individuals in other Immigration categories who want to apply for Highly Skilled Migrant Status and are able to switch their status in-country, will need to do so under the new system.

1st April 2008: All applicants for Highly Skilled Migrant status from India only will need to apply under Tier 1 of the new system

Summer 2008: (date to be confirmed) any applicant from the rest of the world who would like to work in the UK as a highly skilled migrant will also need to apply under the new system.

For further information regarding the above or any other UK immigration issues, please contact Mark Barnett, Mandie Sewa or Barry Weir on immigration@steeleslaw.co.uk or please telephone us at 020 7421 1720.

This article copyright © 2008 Steeles Law llp. All rights reserved.