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Friday, March 16, 2007

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 Euoropean 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.

Friday, March 16, 2007

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.

Friday, March 16, 2007

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.

Friday, March 16, 2007

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.

Friday, March 16, 2007

Businesses still confused over age discrimination

The Employment Equality (Age) Regulations 2006 finally came into force in a blaze of publicity on October 1.

Yet months on, thousands of businesses remain confused as to what the new laws allow - and don't allow - them to do.

Already, that confusion has resulted in some firms banning birthday cards from the workplace in fear that jokey age-based comments may breach the new regulations.

Now, a firm of lawyers which has run a series of special seminars on the new legislation has compiled a list of delegates' most common misconceptions.

The research involving 500 companies, carried out by law firm Brabners Chaffe Street, has revealed widespread confusion about what the legislation means to businesses.

Among them were managers who thought they couldn't reward staff loyalty and that all workers were now automatically entitled to work beyond the age of 65.

Others thought one easy way around the regulations was to outsource their responsibility by hiring an employment agency.

Marcus Difelice, a parter at Brabners Chaffe Street, said that considering the publicity the legislation enjoyed, the results were shocking.

"The business pages have been full of age discrimination for 18 months," said Marcus.

"Yet there are still thousands of businesses who still don't understand what they should be changing to remain within the law.

"On the one hand, some firms are being so cautious, they struggling to run a successful business.

"But far more worrying are the firms who think they can simply hire an outside agency, devolve all their responsibility that way and go behaving as if the law wasn't there."

The five most popular misconceptions were:
1. Employees now have an automatic right to work beyond the age of 65.
2. Businesses can no longer ask for a candidate's age or date of birth on application forms.
3. Firms cannot ask for a specified number of years' experience in job advertisements.
4. I can't reward loyalty because service-related pay or benefits are now banned.
5. As a recruiter, I'm not responsible for what an employment agency does on my behalf, or for what my clients or customers do.

"To a greater or lesser extent, each one of these statements is misconceived," said Mr Difelice. "But each one kept being repeated by business after business that we saw.

"This is after the legislation has come into force.

"Once the issue slips out of the news, there are going to be a lot of people risking their business through ignorance of one of the most important pieces of legislation in a generation."