Edinburgh Napier University Employment Law Update August 2010

Edinburgh Napier University Employment Law Update August 2010 Presented by Debbie Fellows, Barry Nichol and Andrew Brown

Employment Law Update – Topics for today • Equality Act 2010 – Barry Nichol • Changes to Maternity and Paternity Leave – Debbie Fellows • General update - Andrew Brown – Including: • Fit Notes; • The default retirement age; • Right to legal representation at disciplinary hearings;

The Equality Act 2010 – The Importance of Being Diversity Aware • Ensuring equality • High compensation payments and expensive litigation • Damaging publicity and loss of staff morale

What does the law of discrimination cover? • All areas of employment are covered

Protected characteristics • • • Sex Gender reassignment Being married or being in a civil partnership Being pregnant or on maternity leave Race (including ethnic or national origin, nationality and colour) Disability Sexual orientation Religion or belief Age

Forms of discrimination • Direct discrimination • Indirect discrimination • Harassment • Victimisation

Defences to discrimination claims • Justification • Occupational requirement

Potential headaches • • • Recruitment and promotion decisions Harassment Working hours and time off Dress and appearance Stress and disability

Practical steps to reduce risk • • • Provide staff handbooks and policies Provide training on equal opportunities Set up clear procedures for staff Review existing policies and contracts Make reasonable adjustments where appropriate • Accommodate different cultures and beliefs • Consider requests for flexible working

Why do we need an Equality Act? Current arrangements are unduly complex. Discrimination legislation currently spans: • • 9 Acts of Parliament Approximately 100 Statutory Instruments Over 2000 pages of Guidance and Codes of Practice Differing legal tests

Why do we need an Equality Act? Inequalities are still evident in society: • • • Women earn approximately 22% less per hour on average than men. Less academic wealthy children overtake poorer more academically able children at school by the age of 6. Disabled people are twice as likely to be out of work than non-disabled people. Someone from an ethnic minority is 13% less likely to find work than a white person. One in five older people were unsuccessful in obtaining a quote for travel insurance, car insurance and car hire. 60% of lesbian and gay schoolchildren experience homophobic bullying and many experienced suicidal thoughts as a result.

Why do we need an Equality Act? • Unless reforms are made, it is predicted that it will take: • until 2085 to close the gender pay gap • almost a hundred years before people from ethnic minorities get the same job prospects as white people

Overview of the Act • Consolidation of existing discrimination legislation • Re-states existing discrimination legislation i. e. definition of race • Timetable for commencement of provisions

Key changes Defining discrimination: (a) Harmonise the definition of direct discrimination (b) Harmonise the definition of indirect discrimination (c) Harmonise the concept of justification in discrimination cases (d) Remove the requirement of a comparator in victimisation cases (e) make employers liable (in some circumstances) for harassment by 3 rd parties in the workplace

Discriminating lawfully • Occupational Requirement defence • Extension of positive action

Disability • The Act will: • Recast the concept of disability-related discrimination • Introduce indirect disability discrimination • Prohibit employers’ pre-employment health enquiries

Equal pay and contract terms The Act will: • Introduce indirect discrimination to equal pay claims • Allow direct discrimination claims in respect of pay based on hypothetical comparators • Limit the enforceability of contractual pay secrecy clauses • Provide for large employers to report on their gender pay gap

Race • Definition of race extended? • Inclusion of “caste” within definition of race?

Gender Reassignment • Change to definition of Gender Reassignment • Protection of transsexuals from indirect discrimination • Protection from discrimination based on perception and association

What do employers need to do? • Review policies and procedures, especially equal opportunities and recruitment • Consider whether to take advantage of the new positive action provisions • Audit recruitment processes to remove health/disability-related questions

Maternity leave and pay entitlements • Time off for antenatal care • 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML) • Up to 39 weeks Statutory Maternity Pay (SMP) • Maternity Allowance • Keeping in touch days • Right to return to the same job • Protection from sex discrimination • Employers must protect health and safety of pregnant employees

Paternity entitlement • • • Statutory Paternity Leave entitlement Eligibility requirements Purpose of the leave Timing of leave Notice and evidential requirements Return to work

Changes to Maternity and Paternity Leave Additional Paternity Leave • Introduction • Additional Paternity Leave Regulations 2010 – came into force on 6 April 2010 • The Regulations will apply to parents (and adoptive parents) of children due on or after 3 April 2011

Eligibility • Additional eligibility requirements

Regulation 5 • Taking additional paternity leave • Earliest a father will be able to take APL – 20 weeks from the date of birth • Minimum period of APL – 2 weeks • Maximum period of APL – 26 weeks

Regulation 6 • Timing and notice requirements • Minimum of 8 weeks notice of intention to take APL • Employer must confirm entitlement to APL within 28 days of request

Regulation 6 cont. • • Evidence of entitlement: self-certification An employee must give the employer: a) a leave notice b) an employee declaration c) a mother declaration Employer can request from the employee: a) the child’s birth certificate b) name and address of mother’s employer

Effect of APL on the contract of employment • Continuing contract of employment • Right to benefit from terms and conditions of employment contract

Keeping in touch/Return to Work • Keeping in touch days • Will apply to APL • Right to return to: • a) the same job and • b) on the same terms and conditions before APL began

Case Update • Gassmayr v Bundesminister fur Wissenschaft und Forschung (Gassmayr) • Parviainen v Finnair Ovi (Parviainen) • De Belin v Eversheds Legal Services Limilted (De Belin)

Introduction to Fit Notes. • “Statement of Fitness to Work” introduced by the Social Security (Medical Evidence) Regulations and the Statutory sick Pay (Medical Evidence) (Amendment) Regulations 2010 • Shifts onus onto the employer • Phased return to work, altered hours, amended duties and or workplace adaptions

Key Points • “fit for work” and “not fit for work” replaced with “not fit for work” and “may be fit for work” • GP can state how condition will affect employee’s work and suggest ways employer can enable a return to work

The Effect of Fit Notes • Disability Discrimination issues • For managing long term absence

Disability discrimination • Definition: “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” • Reasonable adjustments • Occupational Health

Managing absence • Fair procedure, consider the following: – – Investigate the cause and likely length of absence Keep in contact with the employee Obtain medical evidence Meeting and consulting with employee regarding medical evidence – Consider reasonable adjustments or alternative employment

Default retirement age • Consultation document: Phasing out the Default Retirement Age • Key dates: April 2011 and October 2011 • Continuing with a compulsory retirement age: Seldon v Clarkson Wright and Jakes [2010] EWCA Civ 899 • Implications for managers

Legal representation at internal Disciplinary Hearings • Position as understood until recently • When might we go further? • Recent cases

Kulkarni v Milton Keynes Hospital Foundation NHS Trust • Year one Doctor • Accusation by patient • Represented by non-legally qualified adviser from the Medical Protection Society (MPS) • Contract of employment • Article 6 ECHR

R (on the application of G) v X School and others • Teaching Assistant • Accused of kissing a 15 year old boy • Independent Safeguarding Authority (ISA) • Article 6 ECHR

R (on the application of Kirk) v Middlesbrough Council • • • Social worker Breakdown of marriage to Mr Kirk Accusations of sexual abuse Subsequent child with Mr Betiku Relationship breakdown Stand alone private employment law matter where potential consequences were "nowhere near the scale of severity" involved in R (on the application of G) v X School and others.

Hameed v Central Manchester University Hospitals NHS Foundation Trust • Doctor • Argued disciplinary policy not compliant with Article 6 • Distinguished from Kulkarni • Leave to appeal granted