Employment and Immigration Law Legal Updates 13/5/2009

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Working Time Opt-Out to Remain

Attempts between Member States and the European Parliament to reach agreement on a revised Working Time Directive have failed.

Employment solicitor Tina Maxey comments:

Negotiations on a revised Directive have continued for a period of five years, during which time the UK has remained opposed to proposals to phase out the existing provisions allowing workers to opt-out from the 48-hour maximum working week. The European Parliament wanted the opt-out to be removed, as it believed workers should not be able to opt out of health and safety measures. Further amendments were proposed in relation to the treatment of on-call time and for those working under multiple contracts.

The failure to reach agreement means that for the time being, the current Directive will remain in place in its current form. The European Commission may decide to introduce new proposals for reform of the Directive, but given the sustained failure to agree on the most recent proposals, it seems unlikely that anything will happen in the near future.

New Equality Bill Published

The Government has finally published its long-awaited Equality Bill, which aims to harmonise existing discrimination law into one piece of legislation.

Legal Executive Sally Andrews comments:

Introducing a single Equality Act, to harmonise and strengthen existing discrimination and equal pay legislation, was a manifesto commitment of the Government in the current Parliament. The Bill was published on 27 April 2009 and is due to take effect in Spring 2010, subject to any amendments as it progresses through the various parliamentary stages.

The Bill runs to a massive 205 clauses, with 28 additional Schedules. Much of it replicates existing legislation, but with some important amendments. This is a brief summary of the principal changes.

What is covered?

The Bill refers to the "protected characteristics" of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It contains harmonised definitions of direct discrimination, indirect discrimination and harassment, which will also allow for discrimination by association with an individual who has one of the protected characteristics.

Positive action

Positive discrimination in favour of an under-represented group will still not be permitted, but existing provisions relating to positive action will be extended to allow employers to recruit or promote employees from an under-represented group if they have the choice between two or more equally qualified candidates, provided there is no quota or automatic selection from under-represented groups.

Disability discrimination

The Bill prohibits indirect discrimination on the grounds of disability for the first time. It will also attempt to redress the effects of a recent House of Lords' decision which reduced the protection from disability-related discrimination under the Disability Discrimination Act 1995 (see Developments in Disability Discrimination Law ). In addition, the test for establishing whether an individual has a disability will be wider, as it will no longer make reference to the capacities that must be affected (mobility; manual dexterity; physical co-ordination; memory or ability to concentrate etc).

Equal Pay

The Equal Pay Act 1970 is substantially replicated in the Bill, with some minor changes. In addition, the Bill introduces new measures to address pay inequality. Clauses in contracts of employment to prevent employees discussing their pay with colleagues will be unenforceable. There will also be a new power in the Bill for Regulations to be made requiring private sector employers with at least 250 employees to publish information about pay differences between male and female employees. This power will not be used until 2013 (although may not be used at all in the event of a change in government).

Age discrimination

The Bill outlaws age discrimination by service providers for the first time, but will include exemptions to this which will be the subject of a separate consultation.

Public sector duties

The existing public sector duty to have regard to the need to eliminate sex, race and disability discrimination will be extended to cover all the protected characteristics. There will also be additional duties relating to the need to advance equality of opportunity, and for certain public bodies to have regard to socio-economic factors when deciding on strategic priorities.

Enforcement

Tribunals will have a new power to make recommendations covering an employer's whole workforce, not just in relation to an individual claimant, following a finding of unlawful discrimination. This will specify what action the employer should take and within a specified timescale.

There will no doubt be amendments to the Bill as currently drafted before it is enacted. In addition, the Government has launched a separate consultation on multiple discrimination, where an individual falls within more than one disadvantaged group. It is intending to amend the Bill to allow for claims by such individuals from April 2011 or later.

Eco-warriors: a new religious order?

An employment tribunal has recently decided that an individual's beliefs about climate change are capable of protection under discrimination legislation.

Employment solicitor Sanjeev Uppal comments:

The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination on the grounds of religion or belief. "Religion or belief" was originally defined as "any religion, religious belief or similar philosophical belief", but since 30 April 2007 the definition was amended to remove the requirement for a philosophical belief to be "similar" to that of a religious belief.

In a recent case, an employment tribunal considered the preliminary issue of whether an individual's strongly held beliefs about climate change and the environment were capable of being a philosophical belief under the Religion or Belief Regulations. The claimant argued that his beliefs affected how he lived his life, including his choice of home, how he travelled, what he bought, what he ate and drank, what he did with his waste and his hopes and fears. The tribunal took into account the test approved by the Employment Appeal Tribunal in a previous case to determine whether beliefs fell within the definition of a "philosophical belief": whether they had "sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society".

The tribunal was satisfied in this case that the claimant's beliefs gave rise to a moral order similar to most religions and went beyond mere opinion as they affected the way he led his life. The tribunal was therefore satisfied that his beliefs were capable of being protected by the Regulations, although we understand that the employer is appealing against this decision. Provided the decision is upheld, the merits of the employee's actual claim will also have to be determined at a full hearing.

Comment

This is apparently the first case in which a claimant has successfully argued that a philosophical belief which is not similar to a religious belief falls within the definition under the Regulations. Previously, claimants have unsuccessfully argued that political beliefs are covered by the Regulations.

The Judge warned that this decision "should not be seen as the thin edge of the wedge [for] similarly based complaints", and as a tribunal decision it has no binding authority on other tribunals to reach the same conclusion.

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