Employment Monthly Briefing: October 2006

Age Discrimination – The Employment Equality (Age) Regulations 2006

The new rules banning age discrimination in employment and vocational training will come into force on the 1st October 2006. The new measures will apply to both the public and private sectors and are expected to have a huge impact. The regulations require changes to recruitment practices and reviews of pay and benefits, which could directly or indirectly discriminate.

In summary, they provide for the following:

• Employers will not be able to recruit on the basis of age, unless it can be objectively justified as a real requirement of the job.
• Job adverts must not specify ages and employers must avoid using words, which give the impression of bias towards a person of a certain age group e.g. mature candidate.
• The current maximum and minimum age limits for claiming redundancy pay, and the maximum age limit for claiming unfair dismissal will be removed from the 1st October 2006.

Anti-bullying project

The trade union Amicus and the Department of Trade & Industry have published their research into bullying in the workplace. They have made the following recommendations:

• The adoption of a zero-tolerance approach
• In partnership with unions, organisations must encourage consultation with employees on early intervention strategies
• Recognition that bullying is an organisational issue rather than simply a problem between individuals
• All anti bullying and harassment policies should be clearly set out and communicated along with the business case for doing so.
• Organisations should use the term bullying to describe negative behaviours
• All managers should be trained in mediation and conflict resolution skills

Minimum Wage

On 1 October 2006, the National Minimum Wage Regulations 1999 (Amendment) Regulations 2006 increase the national minimum wage rate to £5.35 per hour for workers aged 22 or over; to £4.45 for those between 18 and 21; and to £3.30 for those under 18.

Maternity and Adoption policies

Maternity and adoption policies will need to reflect the new changes to the statutory schemes on the 1 October 2006. The changes will apply to employees with an expected week of childbirth, or an expected date of placement, on or after 1 April 2007.

The key changes are:

RECENT CASES

Reference Guide:
ET = Employment Tribunal
EAT = Employment Appeal Tribunal
CA = Court of Appeal
ECJ = European Court of Justice
HL = House of Lords
EU = European Union

Pay can be linked to length of service

Cadman v Health and Safety Executive [2006]

The European Court of Justice held that it is not necessary for an employer to objectively justify unequal pay based on length of service. The Claimant worked for the Health and Safety Executive (HSE). She was paid less than four male colleagues who had longer service than she did, and made a claim under the Equal Pay Act 1970 on the grounds that the use of length of service resulted in indirect discrimination. The Claimant won her appeal at the Employment Tribunal but the HSE appealed successfully to the EAT. The Claimant then appealed to the Court of Appeal who referred a question to the European Court of Justice. The questions for the Court to consider was whether it was necessary for an employer to demonstrate that pay based on length of service is justified in individual circumstances.

In this case, the ECJ held that it was not necessary for an employer to objectively justify unequal pay based on length of service. However, an employer will have to objectively justify the use of length of service criteria if an employee raises ‘serious doubts’ about whether the use of length of service criteria is appropriate. This therefore puts the burden of proof on the employee.

Unfortunately, the ECJ did not offer any guidance as to what ‘serious doubts’ are. It will be for the tribunals to interpret and provide further guidance on this matter.

Admissibility of ‘without prejudice’ settlement discussions

Brunel University and anor v Vaseghi and anor UKEAT/0307/06/DA

The case involved two employees who made complaints of racial discrimination to their employee. Two years later, Vice Chancellor of the University made comments in a newsletter that the complaints were ‘accompanied by unwarranted claims for money.’ Both employees raised grievances, claiming that this was victimisation, and that the University instigated any discussions relating to money. A grievance panel heard evidence about settlement discussions between the parties, and came to the conclusion that no grievance had been made out.

The employees made claims of victimisation to an employment tribunal and sought to rely on evidence from the settlement discussions. The University claimed that this evidence was without prejudice and therefore inadmissible.

The tribunal held that the oral evidence from the discussions was without prejudice, and did not fall into any of the exceptions to the rule. However it held that the grievance panel’s reports, which made reference to the content of the discussions should be admitted as evidence. The University appealed against the admission of the reports and the employees cross-appealed against the decision relating to the oral evidence.

The EAT dismissed the appeal and allowed the cross-appeal. It held that ‘in discrimination cases the necessity of getting to the truth of what occurred and if necessary eradicating the evil of discrimination may tip the scales as against the necessity of protecting the "without prejudice" privilege.’

This note has been prepared for general guidance only and should not be used as a substitute to obtaining legal advice. It is recommended that professional advice is sought in relation to specific cases, and practical commercial telephone advice is always available from the MLM Employment team.

Seminars on employment topics of interest can also be provided. Please telephone us for further information.

MLM Solicitors ©2006

Back to Employment Monthly Updates