Dismissal of female worker based on IVF treatment constitutes sex discrimination

In an important decision which will have an impact on many employers, the European Court of Justice (ECJ) has recently confirmed that a female worker who is undergoing in vitro fertilisation treatment (IVF), who has had her ova fertilised but not yet implanted, is not "pregnant" and therefore not protected from dismissal under the EC Pregnant Workers Directive.

However, in this case, Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG, the ECJ did confirm that the dismissal of a woman which is essentially based on the fact that she has undergone IVF can constitute discrimination on the grounds of sex contrary to the EC Equal Treatment Directive as the treatment directly affects only women.

The ECJ examined the scope of protection under the Pregnant Workers Directive, which aims to protect pregnant workers from dismissal due to the risk that it may have harmful effects on their physical and mental state. The protection applies from the beginning of pregnancy. The ECJ confirmed, however, that in relation to IVF, even if that protection began on the date that the fertilised ova was transferred to the woman's uterus, it cannot be accepted that the protection could extend to a worker when, on the date she was given notice of dismissal, the in vitro fertilised ova had not yet been transferred.

Employers clearly need to approach this issue with caution. Even though a woman undergoing IVF who has had her ova fertilised but not implanted may not be protected under the Pregnant Workers Directive, she will be protected from less favourable treatment on the grounds of sex. Care should therefore be taken when dealing with such workers and consideration given to a variety of issues including the need to address any related time off work.

Homophobic banter - employee known to be heterosexual is not protected from harassment

The Employment Appeal Tribunal (EAT) has recently confirmed that the protection from harassment provisions under the Employment Equality (Sexual Orientation) Regulations 2003 (the Regulations) do not extend to those who are subjected to homophobic banter but are known to be heterosexual.

In English v Thomas Sanderson Blinds Ltd, Mr English, an agency worker, had for many years been subjected to sexual innuendo by his work colleagues who engaged in what the EAT termed "homophobic banter". According to Mr English, this originated from his manager's discovery that he had attended boarding school and lived in Brighton. Mr English was not homosexual and fully accepted that his "tormentors" did not believe him to be homosexual.

The Employment Tribunal held that the treatment he received did not fall within regulation 5 of the Regulations, which provides for protection from harassment. It stated that he did not come within any of the covered categories of victims of harassment, namely a homosexual person; a person who is believed to be homosexual by his harassers; or a person who is harassed because of his failure to follow instructions to discriminate against another on the grounds of sexual orientation.

The EAT upheld the Tribunal's decision. The unwanted conduct was not on grounds of sexual orientation. The homophobic banter, although unacceptable, was a vehicle for teasing Mr English. It was not based on their perception nor incorrect assumption that he was homosexual. Significantly, the EAT also confirmed that the words "on the ground of sexual orientation" contained within the Regulations were not as wide as the wording in the Equal Treatment Framework Directive, which prevents harassment "relating to" sexual orientation. Mr English has been granted leave to appeal to the Court of Appeal, so it remains to be seen whether the Regulations need to be amended to implement the Directive fully.

Letter raising grievance and offering to settle can constitute statutory grievance

In Ward v University of Essex, the EAT recently confirmed that an employee's letter to her employer which contained a number of grievances about the conduct of the employer together with an offer to settle with the employer, was capable of amounting to a step 1 statement of grievance under the statutory grievance procedure.

The offer to settle the grievance did not destroy an otherwise valid grievance. The essential characteristic of the grievance letter is that the employer should be put on notice of the employee's complaint. In this case, the employer could be in no doubt as to the dispute and the fact that there was an opportunity to seek a conciliated or negotiated settlement did not destroy that. In addition, the EAT rejected the idea that the state of mind of the employee is relevant. Putting the employer on notice that she may not intend to go through with the matter or may settle for money does not affect the essential meaning if it is otherwise clear.

Sacked for being too young - successful age discrimination claim

A 19 year old woman who claimed that she was sacked for being too young has been awarded more than £16,000 in compensation.  According to recent reports, Leanne Wilkinson claimed that she suffered age discrimination when she was dismissed from her job as an administrative assistant. Her employer had told her that she was too young for the post and it needed an older more experienced person.

An Employment Tribunal has now ruled in her favour, confirming that she had been discriminated against on the grounds of age and there had been a stereotypical assumption that capability equals experience and experience equals older age and age was the predominant reason for the decision to dismiss. 

New national minimum wage rate from 1 October 2008

The Government announced this week that the national minimum wage rate will rise from 1 October 2008.

The adult rate is due to rise from £5.52 to £5.73. The rate for 18 to 21 year olds will also increase from £4.60 to £4.77, while the 16 to 17 year old rate will rise from £3.40 to £3.53.

BERR estimates that nearly one million low paid employees, two thirds of them women, will benefit from the increase.

EHRC announces inquiry into human rights

An independent inquiry into human rights in Britain was launched this week. Trevor Phillips, the chair of the Equality and Human Rights Commission (EHRC), said that the inquiry will be "a full, frank and most importantly independent appraisal" of how human rights work in Britain.

A poll conducted for the EHRC showed that the term "human rights" still prompts blank or mixed reactions from a large proportion of the British public. According to the poll, 40% have either not heard the phrase "human rights", are unable to name any of the protected rights or don't know if they support the legislation. Nevertheless, 47% supported "human rights" laws in Britain. The final report of the inquiry is expected in December 2008.

TUC calls for increase in limit on statutory redundancy pay

The TUC has called on the Chancellor to increase the weekly limit on statutory redundancy pay from £330 to £500 in the forthcoming Budget as a major step towards restoring the real value of the limit.

The TUC states that when redundancy pay was introduced for the first time in 1965 the limit was set at £40, more than twice the average wage. According to the TUC, if the limit had been uprated in line with prices it would now be a little over £500, and if increased in line with earnings it would now be in excess of £1,000.

Mothers lose out on return to work

Millions of highly-qualified women see their careers collapse once they have children because employers will not let them work flexibly or part-time, according to a new study.

The study, published in the Royal Economic Society's Economic Journal, indicates that one in four professional women leaves her job after starting a family, with almost half having to move into jobs where the average employee lacks even A-levels, leaving three years or more of higher level education and training underused. The majority of new mothers who remain in work switch to part-time employment. However, since part-time professional jobs are few and far between, this often leads to a significant loss of career status and pay ("occupational downgrading") for many mothers.

The central findings are that:

• one in three women corporate managers move down the occupational ladder, two-thirds taking clerical positions and the remaining third a range of other lower-skill jobs
  
  
• women managers of shops, salons and restaurants are even worse affected. Almost half give up their managerial responsibilities to become sales assistants, hairdressers and similar
  
  
• teaching and nursing are the most favourable careers in supporting moves to part-time work while continuing in the profession. But even there, nearly one in ten quit for lower-skill jobs