The
Equal Treatment Framework Directive (the
Directive) does prohibit direct
discrimination and/or harassment by association,
according to the Advocate General. The Advocate
General's Opinion, if followed by the European
Court of Justice (ECJ), is likely to have a
significant impact on disability discrimination
legislation in the UK.
In
this case, Coleman v Attridge Law, Ms
Coleman worked as a legal secretary for Attridge
Law, a firm of solicitors, and was also a carer
for her disabled son. She claimed that her
employer treated her less favourably than
employees with non-disabled children and subjected
her to conduct that created a hostile atmosphere
for her. Examples of such conduct included calling
her "lazy" when she sought to take time off to
care for her son and refusing to give Ms Coleman
the same flexibility as regards her working
arrangements as those of her colleagues with
non-disabled children.
Ms
Coleman issued claims of constructive dismissal
and disability discrimination under the Disability
Discrimination Act 1995 (DDA) in the Employment
Tribunal. The Tribunal subsequently referred
specific questions to the ECJ, asking whether the
Directive protects not only disabled employees
from direct discrimination and/or harassment but
also those employees who are associated with the
disabled (such as carers).
The
Advocate General has now expressed his Opinion
that the Directive should be interpreted as
protecting those who, although not themselves
disabled, nevertheless suffer discrimination
and/or harassment because they are associated with
a disabled person. The Advocate General has stated
that it is not necessary for someone who is the
object of discrimination to have been mistreated
on account of "her disability". It is
enough if she was mistreated on account of
"disability" and the Directive comes into play
every time there is an instance of less favourable
treatment because of disability. Importantly, the
Advocate General indicated that the same principle
will apply to any of the prohibited grounds listed
in the Directive (that is, religion or belief,
disability, age or sexual orientation).
The
Opinion is not binding on the ECJ, which is
expected to rule on this matter later in the year.
As the DDA does not expressly prohibit
discrimination by association, if the Advocate
General's Opinion is followed by the ECJ, the
Tribunal will need to consider whether it is
prepared to interpret the DDA in such a way so as
to give effect to the Directive. If this cannot be
done, the DDA (and potentially the Employment
Equality (Age) Regulations, since UK law does not
cover direct discrimination by association in
relation to age) may well need to be amended in
the future.
If
the ECJ follows the Advocate General, employers
will also need to understand the potential impact
of the ruling in the workplace. One key example is
considering applications for flexible working. If,
for example, an application is made by a carer of
a disabled person, extra care will need to be
taken to ensure no less favourable treatment takes
place on the grounds of their association with the
disabled person.
Court of Appeal upholds
decision on agency workers
In
the long-awaited decision of James v London
Borough of Greenwich, the Court of Appeal has
upheld the decision of the Employment Tribunal
that an agency worker, supplied by an employment
agency, was not employed by the end-user
(and therefore was not entitled to those statutory
rights which are only available to employees, such
as the right not to be unfairly dismissed).
The
Court of Appeal has clarified, to some extent, in
what circumstances an agency worker is or is not
an employee of the end user, emphasising the
requirement that the implication of a contract of
service must be necessary to give effect to the
business reality of a relationship between the
worker and end user.
The
Court of Appeal confirmed in such cases that the
correct legal question is not whether the
individual is an "agency worker" but whether he or
she is employed by the end user under a contract
of employment. The two types of contract - agency
agreement and contract of employment - are not
necessarily mutually exclusive and it is legally
possible for a worker to have one kind of contract
with the agency and another with the end user. A
Tribunal is therefore required to examine and
assess the factual evidence carefully to determine
whether the individual is an employee. Where there
is no express contract, the Tribunal must consider
whether it is necessary to imply a contract of
employment between the parties.
In
this case, the Tribunal was entitled to conclude
that the individual, Ms James, was not an employee
of the end user (the Council) because there was no
express or implied contractual relationship
between her and the Council. Her only express
contractual relationship was with the employment
agency and, similarly, the Council's only express
contractual relationship was also with the agency.
The Tribunal was correct when it found that it was
unnecessary to imply a third contract between Ms
James and the Council to give business reality to
the relationship between the parties: what both Ms
James and the Council did was fully explained by
the express contracts they had respectively
entered into with the employment agency.
Interestingly,
the Court took the opportunity to add that it is
aware of the current controversy at both a
domestic and EU level about the absence of job
protection for agency workers. However, it
emphasised that courts and tribunals cannot confer
the right not to be unfairly dismissed on a worker
who does not have a contract of employment. It is
not for them to express views about a change or to
initiate change: this is a matter of social and
economic policy for debate in and decision by
Parliament.
Time limits relating to
the statutory grievance procedure
The
Employment Appeal Tribunal (EAT) has confirmed
that the three month extension to the normal time
limit for unfair dismissal (which is triggered
where a statutory grievance procedure applies)
results in a total time limit of six months less
one day.
The
normal time limit for an unfair dismissal claim is
treated as three months less one day. Where a
statutory grievance procedure is invoked under the
Employment Act 2002 (Dispute Resolution)
Regulations 2004, the normal time limit for
presenting the complaint is extended for "a period
of three months beginning with the day after the
day on which it would otherwise have expired".
In
this case, Joshi v Manchester City
Council, the EAT concluded that, based on the
interpretation of "beginning with", when an
extension of time is given, the total time
limit for presentation of an unfair dismissal
claim is six months less a day - not six months,
as was recently held in an earlier decision of the
EAT.
Acas to receive £37
million as part of shake-up to simplify dispute
resolution system
Acas
were given a huge boost this week following the
announcement that they will receive up to an extra
£37 million of funding in the shake-up to simplify
the dispute resolution system.
The
extra funding, over three years, will lead to the
expansion of a number of services, which include
the Acas helpline. Acas will also look to provide
more services that encourage good employment
relations and prevent disputes from happening at
an early stage.
In
response to the announcement, Acas Chair Ed
Sweeney, said: "Acas provides a first-class
service to employers and employees, based on
impartiality, integrity and expertise. We also
give the taxpayer outstanding value for money,
with every pound invested in us resulting in a £16
benefit to the economy. This new investment will
enable us to increase our effectiveness and spread
the benefits of good employment relations more
widely."
The impact of longer
surgery opening hours on the workplace
The
Government announced this week that it will be
urging GPs to accept its proposals for extending
surgery opening hours.
Whilst
this matter is the subject of some controversy,
the amount of time employees need to take off work
to attend GP appointments is a common area of
concern for employers. According to analysis by
Boots, businesses lose 28 million working hours -
or 3.5m days - and £1 billion a year because
employees have little choice but to schedule GP
visits in working hours.
The
CBI has welcomed the Government's steps,
commenting that "last year, four times as many
working hours were lost because of visits to the
doctor as were lost to industrial action because
staff had no choice but to visit their surgery
during office hours. The £1bn cost to the economy
of this inflexible family doctor service is
shouldered by everyone. The Government is
absolutely right to push for surgeries to offer
opening times that suit people better."
Work-related stress -
revised HSE guidance
Tackling
a topic which is of ongoing concern to all types
of employers, the Health and Safety Executive
(HSE) has published its revised guidance on
"Managing the causes of work-related stress - a
step by step approach using the Management
Standards".
The
guidance incorporates a CD containing additional
resources and the latest version of HSE tools, including
the indicator and analysis tools, which assist
with assessing levels of stress within an
organisation.
Fees for criminal record
checks are frozen
The
Criminal Records Bureau (CRB) has reported that
its fees for criminal record checks have been
frozen for the second year running, as a result of
efficiency savings and increasing demand for its
service. For 2008/2009, the fees for standard and
enhanced CRB checks will therefore remain at
£31.00 and £36.00 respectively.
Employers need to do more
to appeal to older workers
With
the number of age discrimination claims already on
the increase and the many reports on the ageing
workforce, it perhaps comes as little surprise
that research has revealed that employers need to
do more to tempt older workers and motivate them
in the workplace.
According
to research from the CIPD, employers need to look
at their financial and non-financial rewards and
consider whether they are attractive to older
workers. On the positive side, the research found
many examples of employers introducing initiatives
to make their organisation more appealing to older
workers. However, most of these had been
introduced on an ad-hoc basis to address specific
issues. The research therefore found that what is
needed is a systematic and integrated approach to
reward that examines whether both financial and
non-financial benefits are appealing to all
individuals, irrespective of age.