Employment eBulletin September 2010

Changes being made to the Equality Act 2010

Some of the provisions of the Equality Act 2010 coming into force on 1 October 2010:

• Protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport;
• Changing the definition of gender reassignment, by removing the requirement for medical supervision;
• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers;
• Clearer protection for breastfeeding mothers;
• Definition of indirect discrimination applied to all protected characteristics except pregnancy and maternity. It arises where a person applies a provision criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic;
• Replacing “disability-related discrimination” with “discrimination arising from disability”;
• Extending protection from 3rd party harassment to all protected characteristics;
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health;
• Allowing hypothetical comparators for direct gender pay discrimination;
• Making pay secrecy clauses unenforceable;
• Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment;
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.

As a result of the Equality Act 2010, employers are strongly advised to update the following:

1. Equal opportunities policy
2. Equal opportunities monitoring form
3. Anti-harassment and bullying policy

We are able to provide each of the above policies for a fixed fee of £50 plus VAT per policy up until 30 October 2010. Please contact Suki Harrar for a no-obligation discussion of your requirements and how we can help.

National Minimum Wage

This will increase on 1 October 2010 from:

• £5.80 to £5.93 an hour for workers aged 21 and over
• £4.83 to £4.92 an hour for workers aged 18 to 20
• £3.57 to £3.64 an hour for workers aged 16 to 17

TV Really is Getting Grimmer

A contestant aged 55 who auditioned for Britain’s Got Talent as a Madonna impersonator but was rejected by the panel of judges has taken revenge on the show by filing claims at the Tribunal for unfair dismissal and age, sex, disability and sexual orientation discrimination.  He has stated that the audition was the equivalent of a job interview and that his ‘dismissal’ was unfair.

Mr Grimmer does not have the service requirement of one year to be able to claim unfair dismissal.  However, interviewees can make claims against their potential employer for discrimination.  Employers are therefore reminded to be mindful of the terms they use to advertise a role, to ensure the interview location and content is accessible to all and to keep a written record of the recruitment process to use in the event of a claim.

In Mr Grimmer’s case, it is unlikely his claim will proceed much further given the variety of contestants that appear on the TV show and that those selected to proceed to further stages of the competition are often a mix of ages, sexes, genders, abilities and in the case of Gin (the dog), breeds!

Pregnancy and Redundancy

In the recent case of Simpson v Endsleigh Insurance Services Limited and others, the EAT ruled that an employer did not have to offer alternative work to a pregnant employee who was placed at risk of redundancy when the location of such work was substantially less favourable to her.  In this case, the employee worked in London but the alternative to redundancy was a vacancy in Cheltenham.  Whilst the work was suitable and appropriate for her to do in the circumstances (under regulation 10(3)(a) of the Maternity and Parental Leave etc Regulations 1999 ), its location was substantially less favourable to her (under regulation 10(3)(b) of the Maternity and Parental Leave etc Regulations 1999 ) and therefore it was not a suitable alternative vacancy.