Celebrity Big Brother sparks debate

As employers will no doubt be aware comments by certain celebrity Big Brother housemates have recently made news all around the World. The story raised serious issues as to the nature of racist comments.

An Employer should always remember that it can be held vicariously liable for the discriminatory actions of employees, even where those actions have taken place without their knowledge or approval.

As such, if an employee is being bullied or harassed or being treated less favourably on the grounds of their race it is the employer that often is liable for an award of compensation.

Employers must be aware that remarks of a racist nature are likely to cause offence. Such remarks could also be used in evidence in any subsequent Employment Tribunal claim.

Employers should therefore ensure that they have anti-discrimination and anti-bullying policies in place and that employees are aware that certain race related comments are unacceptable.

The team at discriminationonline.com are able to provide anti-bullying and anti-discrimination policies for employers and also provide training to help avoid discrimination taking place in the workplace. For further details click on “contact us”.

Claimants may be barred from bringing discrimination claims

In the recent case of City of Bradford Metropolitan City Council v Ms E C Pratt (2007) the Employment Appeal Tribunal barred an employee from bringing a tribunal claim for equal pay on the basis that the employee had not fully set out her grievance in writing prior to bringing the tribunal claim.

The EAT set out that under the statutory modified grievance procedure employees must set out in writing and in reasonable detail the basis for a grievance before issuing discrimination claims in the tribunal. If the employee does not he/she will be barred from bringing the claim.

Such a grievance must be lodged with an employer within three months of the act of discrimination.

The case underlines the importance for employees of taking full legal advice from specialists before issuing legal procedings.

Age Discrimination – Top 5 questions from employers

1.Do Employees now have an automatic right to work beyond the age of 65?

This was the biggest misconception of the Age Regulations. In fact the right is to request that their employer consider their request to work beyond 65. If an employee makes that request then an employer is obliged to follow a process and consider it, but ultimately the decision is with the employer whether the employee does work beyond 65 or not. Employers have a wide discretion as to whether they grant that request.

2.Can Businesses ask for a candidate’s age or date of birth on application forms?

The Regs don’t expressly say anything specifically about application forms, but it is going to be good practice to take questions about age and date of birth out of the main application form, and instead collect it in a separate diversity monitoring form. You are never going to devise an entirely age-neutral application form. Employers can still ask questions about the candidate’s employment history and qualifications for example, from which inferences can be drawn about their age profile. Employers would do just as well to focus on diversity training for those involved in recruitment exercises.

3.Can Employers ask for a specified number of years’ experience in job advertisements?

Asking for a certain level of experience does indirectly discriminate against younger candidates. You may be able to justify that, but it will probably be difficult. Some jobs do need to be filled by employees with a certain level of experience. Most employers would be better off however spelling out the competencies needed.

4. CAn Employers reward loyalty because service-related pay or benefits are now banned?

The Regulations actually provide an automatic exemption for pay and benefits which are based on service up to five years. For pay and benefit based on more than five years’ service, as an employer you will need to show you had a good business reason for having a service qualification, such as the desire to reward loyalty. In relation to service-related pay, that has been helped by a recent decision in the European Court that decided that employers can often reward length of service with higher pay, as experience often does go hand-in-hand with longer service.

5.Am I  responsible for what an employment agency does on my behalf, or for what my clients or customers do?

The Age Regulations can make you responsible for what, for example, a recruitment agency does acting on your behalf. You can also be responsible for the actions of customers and clients. You do need to ensure that they act appropriately and in accordance with company equality and diversity policies.

British Airways drops ban on wearing crosses

Following recent controversy, BA is chasing its uniform policy to allow all religious symbols, including crosses, to be worn openly.

Last year a row erupted when a BA employee, Nadia Eweida, sought to wear a cross outside of her BA uniform.

BA had reportedly banned any jewellery being worn outside of its uniform, but allowed hijabs and turbans to be worn. The row sparked by the case attracted much media attention, with even Tony Blair being drawn in.

The Company had always argued it never intended to discriminate against Christians on its policy on jewellery but was bound to follow discrimination laws to the letter.

The Transport and General Workers Union, which represented Ms Eweida was happy with BA’s statement.

The case highlights the importance of Employers having clear and well thought out policies and procedures.

Challenge to Default Retirement Age Suffers Setback

The legal challenge taken to the European Court of Justice by the interest group for older workers, Heyday, against the procedures contained in the new laws on Age Discrimination which allow employers to lawfully require employees to retire at 65 has suffered a significant setback.

Advocate General Jan Mazak has today delivered his opinion on a Spanish case concerning
national laws allowing compulsory retirement. The Advocate General’s finding is that the European
Equal Treatment Directive which required the implementation of the new laws on age discrimination does not apply to the rules of Member States on the setting of retirement ages (rules which he felt were too closely linked to the areas of social and employment policy). The Advocate General went on to state that even if the Directive did apply then such a national law would be justified in any event.

An Advocate General’s decision is not binding on the ECJ but it is likely to be followed. However, the laws on Age Discrimination will be kept under review and the DTI has confirmed that the default retirement age of 65 will be looked at in 2011 regardless of the outcome in Heyday’s case.

Schoolgirl looses veil case

A 12 year old school girl has failed in an attempt to legal challenge to her school’s ban on a full face veil.

The school, in Buckinhamshire, had informed the girl that it was unacceptable for her to wear a niqab as the school believed it would make communication and learning difficult.

The Judge rejected her lawyer’s arguments for a judicial review.

In his judgment, Mr Justice Silber stressed that he was dealing with one particular case and not the wider issue of where the niqab should be worn in schools or anywhere else.

Mr Justice Silber stated that the ban was “proportionate” in the light of certain factors including:-

  • The veil prevented teachers from seeing a pupils facial expressions – a key element in effective classroom interaction;
  • The necessity to enforce a school uniform policy under which girls of different faiths would have a sense of equality and identity

The girls’ solicitor stated “we believe there are a number of errors in the decision that have led Mr Justice Silber to reach the wrong conclusions”.

Last year, the law lords ruled that a Luton School was justified in banning the jilbab, a long gown.

Employers must protect employees from harassment from the public

The High Court has ruled, in judicial review proceedings brought by the equal opportunities commission, that the Government has failed to implement the European Equal Treatment Directive properly within the Employment Equality (sex discrimination) Rregulations 2005 so as to protect the rights of women.

The High Court ruling makes it clear that UK Law must go beyond protecting women from abusive colleagues and extend this to protection from the behaviour of customers, clients and members of the public.

Women and Men should be protected from harassment in any job where they meet the public, from pubs and hotels to hospitals and airports. The decision, in a challenge brought by the Equal Opportunities Commission could eventually prompt claims involving harassment of employees unless employers act quickly.

Although employers cannot eliminate the risks of claims entirely, the must now take steps to reduce harassment of employees and ensure that workers know how to react.

A failure to do so will leave employers vulnerable to tribunal claims.