Q and A

The employment law team at Pinsent Curtis Biddle answer questions on
workplace issues

Equal rights for men

Q A man in our accounts department has asked if he can work reduced
hours following the birth of his first child. Are we legally obliged to let him
work part time?

A At the moment, there is no law which states that employers must
agree to allow employees to work part time. However, it is now well-established
by case law that a refusal to allow a woman to return part time after the birth
of a child may constitute indirect sex discrimination under the Sex
Discrimination Act 1975. The basis for such a claim is that a practice or
policy of requiring full time working generally has a greater adverse impact on
women by comparison with men – statistics have shown that women have more
childcare responsibilities which makes it difficult or impossible for them to
do full-time jobs. A man would not, therefore, be able to bring a claim of
indirect sex discrimination because men do not, generally speaking, belong to
the sex which is disadvantaged by a requirement for full time working.

However, in the recent case of Walkingshaw v The John Martin Group, Mr
Walkingshaw succeeded in his complaint of direct sex discrimination after his
employer refused to let him work part-time. He had been a full-time mechanic,
but after his wife, who also worked full-time, had a baby, the couple decided
that one of them would work part-time to care for the child. The mother’s job
was seen to be of more benefit to the household, so it was decided Mr
Walkingshaw would ask to work part-time. At a meeting with his employer, the
request was refused as it was considered impossible and ‘too complicated’. His
alternative suggestion of job-sharing was also considered to be ‘too messy’.
The meeting lasted no more than 20 minutes, and he was told that the decision
was final.

Mr Walkingshaw resigned and claimed direct sex discrimination on the basis
that the employer allowed female employees to work part-time and that,
therefore, he had been treated less favourably than a woman would have been in
similar circumstances. His claim succeeded.

It seems, therefore, that employers who allow female employees to return to
work part-time are under an obligation to treat requests from male staff in the
same way. The solution is not to refuse requests from women to work part-time
as that could lead to claims of indirect sex discrimination from female
employees.

The Government has announced its intention to introduce new law which will
allow employees to request flexible working without having to rely on arguments
of sex discrimination.

Linda Jones

Family friendly Bill

Q How will the Employment Bill affect the rights of working parents?

A The Bill contains a number of significant ‘family friendly’
employment rights which will apply regardless of the size or resources of the
employer. These rights are likely to come into force in 2003.

First, the Bill sets out to improve the current arrangements for statutory
maternity leave and pay – extending ordinary maternity leave from 18 to 26
weeks. This will be followed by a further 26-week period of additional leave if
the woman in question has completed one year’s continuous service. As a result,
most working mothers will have the right to take up to a year of maternity
leave (the current maximum is 40 weeks). The payment period for statutory
maternity pay (SMP) and maternity allowance, which are only payable during
ordinary leave, will also be increased to 26 weeks.

Second, the Bill will give working fathers who satisfy certain conditions
the right to two weeks paid paternity leave on the birth or adoption of a
child. Initially the rate of pay will be the lower of £100 per week or 90 per
cent of the employee’s average weekly earnings. Such payments will be
administered in the same way as SMP.

Third, the Bill will introduce a new right of up to a year’s leave when an
employee adopts a child. Only the first 26 weeks of such leave will be paid,
and the arrangements for payment and the level of pay will mirror those for
statutory paternity pay.

The Bill has recently been amended to give parents of children under six the
right to request more flexible working arrangements (such as a reduction in
hours) to enable them to cope with their child-minding responsibilities.
Although the employee will not be able to insist on a change in terms the
employer will have to follow a prescribed procedure when considering the
request and will only be able to refuse the request on one of a number of
specified grounds. These include the burden of additional costs or the
inability to reorganise work among existing staff.

Helen Milgate

Unfair dismissal regime

Q What changes will the Employment Bill make to unfair dismissal claims
and what are the implications for employers?

A The Employment Bill proposes a radical overhaul of the unfair
dismissal regime. The aim is to promote the resolution of employment disputes
in the workplace rather than the tribunals, controlling the continual rise in
tribunal applications.

A key proposal is the introduction of statutory dismissal and grievance
procedures. These would form part of every contract of employment and impose
certain minimum procedural steps. Significantly, the procedure applies to any
dismissal, not just a disciplinary dismissal.

It is likely that employees will be barred from bringing complaints to a
tribunal before the statutory procedure, including an appeal stage, has been
exhausted. But it is doubtful that they will lose the right to complain at all
or that the new procedures will significantly reduce the number of employment
claims. In many dismissal cases employees do appeal against their dismissal
before bringing proceedings. Exhausting a grievance procedure may be less
common, but the overall impact of the change may be to delay claims rather than
reduce their number.

Nevertheless, the introduction of the statutory procedures will create new
risks. If employers fail to comply with the statutory dismissal or grievance
procedures the dismissal will be found to be automatically unfair. The failure
could also be a breach of the employment contract, giving rise to an
automatically unfair constructive dismissal claim.

The basic steps of the dismissal procedure are not of themselves onerous.
More problematic are the general requirements of both procedures, which require
that each step under the procedure should be taken without unreasonable delay,
that the timing and location of meetings be reasonable and that meetings are
conducted in a way which allows both employer and employee to explain their
cases. There is obvious scope for argument as to whether these have been
complied with. Applicants may well focus on these issues in any tribunal
hearing in the hope of establishing automatic unfair dismissal liability.

Failure to follow the statutory procedure – dismissal or grievance – could
also have a major impact on compensation. If proceedings are begun before the
statutory procedure is completed, the tribunal must increase or decrease any
award by 10 per cent (depending on whether the failure to comply is due to the
employer or employee’s default) and can at their discretion increase or
decrease the award by 50 per cent.

A related reform is the increased role for the statutory statement of the
main terms and conditions of employment, which must be given within two months
of the start of employment under s1 ERA 1996.

As a minimum, employers should review their existing dismissal and grievance
procedures and ensure that managers are aware of the need to follow these with
care.

Christopher Mordue

Worker involvement

Q I am considering creating an informal employee work group to discuss
issues within the workplace. One of my managers has said that this could soon
be a statutory obligation upon all companies. Is this right?

A Following the European Commission’s perceived success of European
Works Councils in achieving worker involvement in multinational companies, it
has been keen to extend worker information and consultation obligations into
companies based in one member state. A draft directive on national-level information
and consultation of workers is making its way through the European legislative
process. As currently drafted it will oblige ‘undertakings with at least 50
employees in any one Member State’ to inform and consult employee
representatives on:

– the situation, structure and probable development of employment within the
undertaking

– measures envisaged which could pose a threat to employment

– decisions likely to lead to substantial changes in work organisation or
contractual relations

Christopher Booth

Age discrimination

Q Can I decide not to employ someone simply because they’re too old, in
my view, to integrate with my young workforce? If I do this, could the person
bring any claims against me or my company?

A It is unlawful in the UK to treat anyone less favourably on the
grounds of their sex, race or disability. An employee or worker who considers
they have been discriminated against on these grounds can bring a claim at an
employment tribunal and, if successful, be awarded compensation.

It is not, currently, unlawful to discriminate against a person purely on
the grounds of their age. However, at present more men than women work beyond
the age of 60 and accordingly age should not be used as a factor during
redundancy selection procedures, as to do so could lead to sex discrimination
claims. The Government has issued a Code of Practice entitled Age Diversity in
Employment. However, this is only advisory in nature and has no legal force,
although Employment tribunals are able to draw unfavourable inferences if its
provisions are not observed. The Government has also launched the Age Positive
website in anticipation of age discrimination legislation in the future (www.agepositive.gov.uk).

The Government reports that 90 per cent of people believe employers
discriminate on the grounds of age, and the new website has a test for
employers on this basis.

It is open to employers at present to recruit younger staff without the
prospect of an employment tribunal claim, although this position may change,
and as the working population ages, age discrimination may become less of an
issue.

Alison Elmore

Keeping track of pension benefits

Q My employer has just outsourced the IT function in which I
work. I know that my new employer will honour TUPE, but moving means I have to
come out of my present employer’s generous pension scheme. When I raised
concerns, my present employer assured me that the rights and benefits under the
new employer’s scheme would be about the same. I have just received a letter
from my new employer and it says I will be entitled to join a scheme, but it
will be a money purchase scheme as opposed to final salary, which will be much
less beneficial to me. Can I do anything?

A In the High Court recently,
in Hagen v ICI, the court established that in exceptional circumstances an
employer might be liable for misrepresentation if he makes promises about what
a transferee will offer by way of terms and conditions, including pension
rights, provided that the promise is relied upon and causes loss. However, the
ICI case is unusual.  It was found
specifically in that case that the employer had misrepresented pension rights
(but not other terms) with the new employer and a financial claim on that
ground succeeded. But, unusually, given the special relationship between ICI
and its workforce and the unions, it was found that the workforce would have
been able to influence the employer to negotiate better terms with the
transferee had the true position been known. Rarely will this be the case. The
best advice is to get an assurance in writing from the employer before
transferring and ensure that the advice given to you is as specific as
possible. But few employers will be as specific as ICI about prospects for the
future.

Dr John McMullen
National Head of Employment Law

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