1. EMPLOYMENT LAW UPDATE: 12.04.11 PRESENTED BY: Andy Jamieson - Director Keeley Baigent - Director Jo McCarthy - Associate

2. What’s not coming into force this April? 1. The Bribery Act - now 1 July 2011 2. Right to request time off for training will not be extended to SME’s 3. Right to request flexible working will not be extended to parents of children under 18. 4. Specific public sector equality duties deferred until July 2011.

16. AGE, SEX AND DISABILITY DISCRIMINATION Presented by Keeley Baigent

17. AGE DISCRIMINATION Have any job applicants succeeded in claims for discriminatory job adverts? Berry –v- Recruitment Revolution [2010] “ Junior Administrator” suitable for “a school leaver / someone who had recently taken A’Levels ” ET – claim failed Claimant had not applied so had not been disadvantaged / suffered a detriment EAT agreed Warning given: “ those who try to exploit legislation for financial gain were liable to have costs awarded against them”

18. AGE DISCRIMINATION Keane –v- Investigo & Others [2010] Job vacancies clearly aimed at recently qualified accountants Keane over qualified ET – claim failed Applications were not genuine so claimant not disadvantaged / suffered detriment EAT agreed “ An applicant who is not considered for a job in which he or she is not interested cannot in any ordinary sense of the word be said to have suffered a detriment or been disadvantaged ”

19. AGE DISCRIMINATION Not calling key witnesses to give evidence or preparing your defence in a reasonable manner could mean you end up on the back foot Canadian Imperial Bank of Commerce –v- Beck [2010] Beck found to have suffered age discrimination Burden of proof shifted to employer Bank’s failure to call key witness hampered Bank’s chances of rebutting discrimination

20. AGE DISCRIMINATION Was a fixed retirement age of 65 years old for partners justified? Seldon –v- Clarkson Wright & Jakes & Another [2010] ET accepted 3 legitimate aims: (i) giving senior solicitors opportunity of partnership so ensuring that they didn’t leave (ii) facilitating partnership & work force planning & (iii) limiting need to expel partners by way of performance management so contributing to congenial & supportive culture

21. AGE DISCRIMINATION ET held retirement at 65 to be a proportionate means of achieving firm’s legitimate aims EAT agreed except that: held retirement age of 65 didn’t justify 3rd aim as no evidence that performance tended to decline at that age CofA: Confirmed that employer’s aim does not have to pursue a social policy objective to be legitimate

22. AGE DISCRIMINATION Mere fact that employer might have chosen higher retirement age could not result in retirement age of 65 not being justified DRA of 65 for employees supported choice of retirement age of 65 Note: Decision and reasoning important for employers who wish to justify retention of a fixed retirement age for employees

23. AGE DISCRIMINATION Can cost alone justify a decision to discriminate? Woodcock v Cumbria Primary Care Trust [2010] Dismissal of W was justified Legitimate aim being pursued was: “ to bring about Mr W's dismissal for redundancy and to avoid the additional costs to the Trust of his attaining the age of 50 before the end of his notice period and thus being entitled to enhanced payment " W's dismissal without consultation was a proportionate means of achieving that aim

24. SEX AND AGE DISCRIMINATION Are older women more at risk of discrimination than others? O’Reilly –v- British Broadcasting Corporation & Another [2011] The facts: Network wanted to “refresh” the presenter line up for countryfile Majority of 2nd tier presenters chosen in their mid 30s & O not considered Leakage of ageism complaints to media

25. The decision: Combined discrimination protected BBC’s failure to consider O as 2nd tier presenter direct age discrimination not justified Wish to appeal to younger viewers was a legitimate aim Choosing younger presenters did not satisfy aim Not proportionate to pander to assumed prejudice of younger viewers SEX AND AGE DISCRIMINATION

26. SEX DISCRIMINATION Surely if an employee participates in ‘sexual banter’ they can’t then claim they have been sexually harassed Munchkins Restaurant Ltd and another v Karmazyn and others [2010] Some of the inappropriate conversations were initiated by the Claimants Despite this held that Claimants been sexually harassed Respondents held jointly & severally liable for awards Each Claimant awarded £15,000 for injury to feelings

27. SEX DISCRIMINATION Gossip about ‘whose the father’ could get employers into hot water! Nixon v Ross Coates Solicitors and Anor [2010] EAT found: Gossip was pregnancy related, it was unwanted & Claimant found it distressing Therefore it amounted to harassment

28. SEX DISCRIMINATION Not even the lawyers get it right all the time! De Belin v Eversheds Legal Services Ltd [2011] The Facts: Female colleague couldn’t be assessed against redundancy selection criterion as on maternity leave during assessment period Female colleague given maximum notional score against the criterion Resulted in B being selected for redundancy

29. SEX DISCRIMINATION ET: Meaning of ‘special treatment’ considered Didn’t extend to giving female colleague maximum notional score B held to have been discriminated against on grounds of sex & unfairly dismissed B awarded £123,053 compensation

30. SEX DISCRIMINATION EAT: Agreed with ET Special treatment only extends to what is 'reasonably necessary to compensate for disadvantages occasioned by condition ' Benefit offered not reasonably necessary Less discriminatory alternatives available

31. SEX DISCRIMINATION Can a man claim pregnancy related discrimination because of his association with his pregnant partner? He can try: Kulikaoskas v MacDuff Shellfish and another [2010] K claimed had been dismissed because of his partner’s pregnancy ET dismissed claims EAT agreed with ET SDA should not cover ‘associative pregnancy discrimination’ Associative pregnancy discrimination may be protected under the Equality Act 2010

32. Guidance on determining whether a mental illness could amount to a protected disability J v DLA Piper UK LLP [2010] Mental impairment does not have to be clinically recognised Clinical depression amounts to an impairment Medicalisation of work events does not DISABILITY DISCRIMINATION

33. DISABILITY DISCRIMINATION EAT held: ET erred in considering mental impairment before effect Consider adverse effect on ability to carry out normal day-to day-activities 1st Consider question of impairment 2nd If 1st consideration satisfied may follow impairment suffered May make it easier to show mental impairment amounts to a disability

34. DISABILITY DISCRIMINATION How far does an employer’s duty to make reasonable adjustments go? Chief Constable of South Yorkshire Police v Jelic [2010] EAT held: Duty to make reasonable adjustment extended to swapping jobs of disabled and non disabled employees Accepted that this would not be a reasonable adjustment in every case

35. Unfair dismissal, religious discrimination and sexual orientation discrimination Presented by Jo McCarthy

36. Unfair Dismissal

37. Humour and the band of reasonable responses How far will the band stretch? Unfair Dismissal

38. The case Bowater v Northwest London Hospital Trust (2011) EWCA Civ 63 Unfair Dismissal

39. The Facts Unfair Dismissal

43. Investigation, Investigation, Investigation….. Can there ever be too much? Unfair Dismissal

44. The Case Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ 522 Unfair Dismissal

45. The facts Unfair Dismissal

48. “ You must be poking!” Issues around social networking Unfair Dismissal

49. The case Gill v SAS Ground Services UK Limited ET/2705021/09 Unfair Dismissal

50. The facts Unfair Dismissal

52. Issues in relation to representation at internal hearings Representation

53. Hand holding… Representation

54. The case Governors of X School v R Representation

55. The facts Representation

58. Religious Discrimination

60. Good news and bad news for employers Religious Discrimination

61. Bad news (but good news for witches, UFO geeks and Swampy!) The breadth of beliefs covered under the Regulations is increasing beyond belief (!) Religious Discrimination

62. Good News The Courts appear to be recognising the distinction between holding a protected belief per se and the manner in which that belief is manifested Religious Discrimination

63. Some cases Believe it or not…… Religious Discrimination

64. The case Power v Greater Manchester Police Authority EAT 0087/10 Religious Discrimination

65. The Facts Religious Discrimination

69. He failed at the second hurdle – see Daily Mail reports Religious Discrimination

70. Comment/Practical tip – Call Ghostbusters Religious Discrimination

71. The Thrill of the Chase Religious Discrimination

72. The Case Hashman v Orchard Park Garden Centre Religious Discrimination

73. The Facts Religious Discrimination

74. The Legal Analysis ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “ Religious Discrimination

75. Manifestation of belief The foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection Religious Discrimination

80. Consider…….. Religious iconography or clothing

81. Sexual orientation discrimination

85. Protecting employees from harassment by customers/service users /third parties

88. Unfair Dismissal

89. Humour and the band of reasonable responses How far will the band stretch? Unfair Dismissal

90. The case Bowater v Northwest London Hospital Trust (2011) EWCA Civ 63 Unfair Dismissal

91. The Facts Unfair Dismissal

95. Investigation, Investigation, Investigation….. Can there ever be too much? Unfair Dismissal

96. The Case Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ 522 Unfair Dismissal

97. The facts Unfair Dismissal

100. “ You must be poking!” Issues around social networking Unfair Dismissal

101. The case Gill v SAS Ground Services UK Limited ET/2705021/09 Unfair Dismissal

102. The facts Unfair Dismissal

104. Issues in relation to representation at internal hearings Unfair Dismissal

105. Hand holding… Unfair Dismissal

106. The case Governors of X School v R Unfair Dismissal

107. The facts Unfair Dismissal

110. Religious Discrimination Unfair Dismissal

112. Good news and bad news for employers Unfair Dismissal

113. Bad news (but good news for witches, UFO geeks and Swampy!) The breadth of beliefs covered under the Regulations is increasing beyond belief (!) Unfair Dismissal

114. Good News The Courts appear to be recognising the distinction between holding a protected belief per se and the manner in which that belief is manifested Unfair Dismissal

115. Some cases Believe it or not…… Unfair Dismissal

116. The case Power v Greater Manchester Police Authority EAT 0087/10 Unfair Dismissal

117. The Facts Unfair Dismissal

121. He failed at the second hurdle – see Daily Mail reports Unfair Dismissal

122. Comment/Practical tip – Call Ghostbusters Unfair Dismissal

123. The Thrill of the Chase Unfair Dismissal

124. The Case Hashman v Orchard Park Garden Centre Unfair Dismissal

125. The Facts Unfair Dismissal

126. The Legal Analysis ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “ Unfair Dismissal

127. Manifestation of belief The foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection Unfair Dismissal

132. Consider…….. Religious iconography or clothing

133. Sexual orientation discrimination

137. Protecting employees from harassment by customers/service users /third parties