September 2004 Employment Law E-news

* UK reaction to European Commission working time proposals
* Sex Discrimination and Office Porn
* Employment Tribunal Request for Medical Records

UK reaction to European Commission working time proposals

The European Commission's proposal for amending the Working Time Directive has met with a critical response from both employers and Trade Unions in the UK.

On 22 September 2004, the European Commission adopted a formal proposal for a Directive amending certain key provisions of the existing Working Time Directive. Of particular importance is the Commission's aim to tighten the conditions under which individual employees may opt-out of the 48-hour limit on average weekly working time. UK law currently allows the use of such 'opt-outs' on a general basis. However, if the Commission's proposed amendments are adopted:

1. Individual employees would only be able to agree with their employer to opt-out of the 48-hour limit where this is expressly allowed by a collective agreement or an agreement between the two sides of industry (this would not apply where there is no collective agreement in force and there is no workers' representation empowered to reach such an agreement);

2. An individual opt-out agreement would be valid for no more than one year, though it may be renewed;

3. Opt-outs would not be allowed at the time workers sign their contracts of employment or during any probation period;

4. Workers would not be able to work more than 65 hours in any one week; and

5. Employers would have to keep records of the number of hours actually worked.

Echoing its reaction to an earlier Commission consultation, the Confederation of British Industry (CBI) pledged that Britain's business community would fight 'tooth and nail' against the Commission's proposal. John Cridland, CBI deputy director-general, said:

"This is an attempt to broker a compromise that has completely backfired ... It is good that the Commission is allowing the opt-out to remain, but it is quite wrong to give trade unions a veto over what should be an individual decision. The proposal would undermine the individual's right to choose the hours they work."

For the Trades Union Congress (TUC) (who are seeking an end to the opt-out provisions altogether), General Secretary Brendan Barber said that the Commission's proposal was 'a disappointing decision that will satisfy no-one'. He added:

"People at work will get some slight extra protections against bosses who try to force them to opt-out of a 48-hour working week. And union members will be able to negotiate a limit to their maximum hours. But these limited reforms show that the Commission has failed to grasp the scale of the UK's long hours culture ... British bosses will still be able to rely on pressuring staff to work long hours instead of adopting safe, efficient and productive working practices."

The UK government's response to the Commission's proposed amendments on this issue is as yet unknown, but is likely to be influenced by responses to its own recent consultation exercise on ways to improve the operation of the opt-out, which closed on 22 September 2004.

Sex Discrimination and Office Porn

The recent case of Moonsar v Fiveways Express (2004) considered whether men downloading pornographic films on computers in the office could constitute sex discrimination against a female colleague.

Ms Moonsar had worked for Fiveways since July 2003 as a part-time Data Entry Clerk before being made redundant later that year, in respect of which a race discrimination claim was successful at Tribunal. At the tribunal, Ms Moonsar also made a claim of sex discrimination.

During her time with the company, male staff had on three occasions downloaded pornography while she was present in the office. Although the images were not circulated to her she worked in close proximity to the men and was fully aware of what was happening. She made no complaint about the behaviour until post-termination as she said that she "valued her job" and had not wanted to "jeopardise" her position.

The Tribunal had originally been unimpressed with Ms Moonsar's claim for sex discrimination, stating that she had not been shown the images and had previously raised no complaint.

On Appeal, Ms Moonsar argued that the Tribunal should have found that the behaviour created a possibility of less favourable treatment of a female, thus shifting the burden of proof onto Fiveways to show that there was no 'less favourable treatment' amounting to sex discrimination. Fiveways had in fact failed to attend the hearing and had failed to discharge their burden. The EAT accordingly found in favour of Ms Moonsar and referred the matter back to Tribunal for an award in respect of the race discrimination element of the claim.

Employment Tribunal Request for Medical Records

It has long been established that courts and tribunals cannot order disclosure of a Claimant's / Applicant's medical records. Such an order would constitute a breach of the Access to Medical Reports Act 1988.

Employment Tribunals have historically got round this problem by routinely ordering Applicants to consent to disclosure of their medical records under the Act. Failure to provide consent can often lead to the Tribunal striking out the Applicant's claim.

In the disability discrimination case of Hanlon v Kirklees Council (2004) Mr Hanlon refused his consent to disclosure of his medical records, arguing that the Tribunal order was a breach of his 'Right to Respect for Privacy' under the European Convention of Human Rights.

The Employment Appeals Tribunal upheld the original Tribunal decision to strike out the case on the basis that the right to respect for Privacy must be balanced against the rights of others - in this instance the right of Kirklees council to a fair trial.

If you would like to know more about the impact of the Disability Discrimination Act or any other area of employment law, please feel free to contact the employment team by writing to us at lonemp@steeleslaw.co.uk or by calling 0207 421 1720.

This bulletin is intended for general guidance only and should not be relied upon without detailed legal advice on your specific circumstances.

This article copyright © 2004 Steeles Law. All rights reserved.