Equal Opportunities Review - Issue 193 - October 2009

Equal Opportunities Review - Issue 193 - October 2009 Author: Sue Johnstone Work-life balance remains an important issue for employees, particularly carers, and this is reflected in the TUC's equality audit 2009, which reveals that unions had most success in negotiating deals for working parents and carers. The Government Equalities Office annual report also highlights the needs of carers and plans a campaign to raise awareness of the right to request flexible working. In this issue, as well as the above reports, we have case studies on three organisations that have successfully used flexible working to their benefit. ...(more)

Diary: Caster Semenya, gender identity and the Equality Bill Topic(s): Equality & diversity Author: Michael Rubenstein As an avid sports fan, I have been enthralled by two stories in recent days: one uplifting, the other dispiriting.

Diary: Pay transparency consultation Topic(s): Equal pay Author: Michael Rubenstein Kudos to the Equality and Human Rights Commission for getting out its first consultation on pay transparency comparatively quickly. Whatever mechanism is adopted for reporting on the gender pay gap, it will be voluntary, at least for the first four years, so cooperation with the business community is clearly a priority. ...(more)

Diary: Fact-checking discrimination law Topic(s): Equality & diversity Author: Michael Rubenstein I recently returned from the United States, where for 10 days I read the New York Times, the newspaper of my youth. Racy it may not be, but the New York Times draws a sharp distinction between fact and opnion.

Hertfordshire County Council: flexible work – an activity, not a place Topic(s): Flexible working: policies/best practice Author: Kate Godwin Hertfordshire County Council is convinced that flexible working allows employees to best meet their own needs and those of the organisation, and is therefore available to all employees regardless of their circumstances. Kate Godwin examines the council's comprehensive approach to work-life balance.

Flexible working in the SME sector Topic(s): Flexible working: policies/best practice Author: Carol Foster For small firms Loop Customer Management Ltd and Eden McCallum Ltd, work-life balance is not just an HR initiative but a crucial business strategy. Carol Foster looks at how their flexible working policies have benefited both the organisations and their employees.

EHRC sets out gender pay gap information options Topic(s): Equal pay Author: Michael Rubenstein The consultation issued by the Equality and Human Rights Commission on the information that private sector employers will be asked to provide in order to report on their gender pay gap suggests a range of possible options: the overall average pay gap between male and female employees; the gap by reference to grade; by reference to job description; or a combination of these factors. ...(more)

Distinction between discriminatory motivation and discriminatory motive Topic(s): Age: direct discrimination; Race: direct discrimination; Religion or belief: direct discrimination; Sex: direct discrimination; Sexual orientation: direct discrimination Author: Michael Rubenstein

The EAT has reviewed the law relating to proof of direct discrimination, pointing out that whereas a finding of discriminatory motivation is required where the act complained of is not inherently discriminatory, a benign motive is irrelevant. Amnesty International v Ahmed (13 Aug 2009, EAT)

‘Piggyback’ claims can be brought Topic(s): Equal pay: like work, defences Author: Michael Rubenstein The EAT has ruled that male workers employed on comparable work to that of women who have brought equal pay claims can bring contingent claims comparing themselves to the women. Hartlepool Borough Council v Llewellyn (24 Jun 2009, EAT)

Failure to disclose full medical history was not misrepresentation Topic(s): Disability: mental health Author: Michael Rubenstein The High Court has dismissed a local authority's claim of nearly £1 million in damages from its former managing director for making negligent or fraudulent misrepresentations in her medical questionnaire by failing to disclose that she had a history of mental illness. Cheltenham Borough Council v Laird (15 Jun 2009, HC)

Short report: Disability discrimination Topic(s): Disability: meaning of disability Author: Michael Rubenstein It was open to a court hearing an employee's claim that he was entitled to an early retirement pension on grounds that he had become permanently incapable to hold that a previous finding by an employment tribunal that the employee was not disabled within the meaning of the Disability Discrimination Act acted as an issue estoppel making it impossible for the claimant to satisfy the burden of proving that he was permanently disabled. So holds the Court of Appeal in Booth v Oldham Metropolitan Borough Council (18 Aug 2009).

Short report: Religious belief or political opinion Topic(s): Religion or belief: definition of 'religion' or 'belief' Author: Michael Rubenstein The Fair Employment and Treatment (Northern Ireland) Order 1998 prohibits "discrimination on the ground of religious belief or political opinion". The facts of McConkey v The Simon Community (20 May 2009) specifically concern political opinion, which, of course, is not protected by the comparable British legislation, but there is guidance from the House of Lords that also extends to discrimination on grounds of religion or belief.

Requirement to work weekends was not indirect sex discrimination Topic(s): Flexible working; Sex Author: Sue Johnstone An employment tribunal holds that a requirement for part-time employees to work two weekend days every four weeks did not amount to indirect discrimination, as the claimants could not show that weekend working put women at a particular disadvantage. Carr and McManus v The Chief Constable of Lincolnshire Police Force (4 Aug 2009, ET/20600564/08, ET/20600565/08)

Refusal of homeworking was not indirectly discriminatory Topic(s): Flexible working: discrimination; Sex Author: Sue Johnstone An employment tribunal in this case finds that the employer's refusal to allow the claimant to work from home, although it put women at a particular disadvantage, was a proportionate meansof achieving a legitimate aim. McKinnon v Automated Control Services Ltd (28 Jul 2009, ET/3104607/08)

Refusal to allow job-share was not justified Topic(s): Flexible working: discrimination; Sex: indirect discrimination Author: Sue Johnstone

The employment tribunal finds that the respondent's refusal to allow an administrative assistant to reduce her hours or to allow her to job share was because of a "disinclination" to change rather than for practical reasons. This was not a justification for indirect sex discrimination, as required by the legislation. Savory v The Governing Body of St Cyres School (25 Jun 2009, ET/1601607/08)

Requirement to inform when working was not discrimination Topic(s): Flexible working: discrimination; Sex Author: Sue Johnstone A claimant resigns, apparently in the belief that she was being asked to work fixed hours, but an employment tribunal finds that the employer had not prevented the employee from working flexibly, and had only requested that she inform her employer when she was working, in accordance with the employer's lone workers policy. Chappell v (1) Betteklean Ltd (2) Wallis (30 Jul 2009, ET/1200364/09)

Tribunal required statistical evidence of childcare responsibilities Topic(s): Flexible working: discrimination; Sex: indirect discrimination Author: Sue Johnstone An employment tribunal rejects claims of direct and indirect sex discrimination where the respondent reduces the number of part-time posts, leaving the claimant with no job. The tribunal, in relation to indirect discrimination, states that it had not been presented with any statistical evidence that the requirement to work full time would be a particular disadvantage to women in these circumstances. Atkins v Poundworld Retail Ltd (22 Jun 2009, ET/2500816/09)

Withdrawal of adjustment led to discrimination Topic(s): Disability: duty to make reasonable adjustments Author: Sue Johnstone As a result of the respondent's vigorous enforcement of its "look" policy, an employee with a prosthetic arm was discriminated against in that there was harassment of her by one manager and, in effect, the removal of a reasonable adjustment when that manager told the employee to leave the shopfloor for breach of the look policy because she was wearing a long-sleeved cardigan, even though the employee had been given permission to wear the garment. The tribunal criticised the respondent's lack of awareness of diversity issues, in particular in dealing with disability. Dean v Abercrombie & Fitch (11 Aug 2009, ET/2203221/08)

‘Disfigurement’ was not a disability Topic(s): Disability: meaning of disability Author: Sue Johnstone An employment tribunal, using a visual test, concludes that the claimant was not disabled as the employment judge could not see any "severe disfigurement". Griffiths v Lancashire County Council (17 Apr 2009, ET/2408001/08)

Claimant found to be disabled despite employer’s perception of abilities Topic(s): Disability: meaning of disability Author: Sue Johnstone An employer's perception of an employee's abilities to carry out day-to-day activities were found to be wrong by an employment tribunal. It concluded that although the claimant, who wore an ileostomy bag, had adjusted her lifestyle to minimise the impact, the consequences of the claimant's condition had a substantial impact on her daily life. O'Brien v Nottingham Building Society (26 May 2009, ET/2603452/08)

Employee able to attend grievance meetings was disabled Topic(s): Disability: meaning of disability Author: Sue Johnstone An employee with mental ill health was found to be disabled within the meaning of the DDA, even though she was able to attend grievance meetings and put together detailed documentation to support her case. Cullum v Mid Staffordshire General Hospitals NHS Trust (19 May 2009, ET/1301521/08 and ET/1306739/08)

Gender pay gap in the financial services sector Topic(s): Equal pay: statistics and reports

Leading finance companies are paying their women employees around 80% less in bonuses than they pay men, finds an inquiry by the Equality and Human Rights Commission.

Transferable maternity leave for parents Topic(s): Parental rights: maternity rights, paternity rights, parental leave The Government has announced new proposals that will give families greater flexibility in how they use maternity and paternity leave.

More Government support for people with mental health problems Topic(s): Disability: mental health Thousands of people with mental health problems will get extra support managing their condition to remain in the workplace, Jim Knight, Minister of State for Employment and Welfare Reform, has announced.

Union success for working parents and carers Topic(s): Equality & diversity: policies/best practice The aspect of equality on which most trade unions report success in negotiations is for deals covering working parents and carers, according to the TUC 2009 Equality Audit.

Weak firms benefit from female directors Topic(s): Sex: statistics and reports Firms with weak governance would benefit from having more women on the board, concludes new research from the London School of Economics and Political Science (LSE).

Government focuses on women and carers Topic(s): Equality & diversity Narrowing the gender pay gap is a key priority in the coming year for the Government Equalities Office (GEO), the policy department responsible for the Government's overall strategy and priorities on equality issues, according to its latest annual report.

One-third of employees report having problems at work Topic(s): Equality & diversity Some 34% of respondents to a new survey from the Department for Business, Innovation and Skills say they have had a problem at work. In the past two years these problems mainly involved employment rights (24%), unfair treatment (13%), discrimination (7%) and bullying and harassment (7%).

EHRC guidance on revising disability equality schemes Topic(s): Disability: disability equality duty The Equality and Human Rights Commission has published detailed guidance to help public authorities complete their first three-year review of their disability equality scheme (DES). It covers topics such as what the three-yearly revision involves and what needs to be included.

Parents struggle with up-front childcare costs Topic(s): Parental rights More than half of parents (58%) find it difficult to meet up-front childcare costs, reveals a new survey from the Daycare Trust.

Employers not ready for an older workforce Topic(s): Age: policies/best practice; Disability: policies/best practice The majority of employers are not ready to make the adjustments needed to address hearing loss among older employees, reveals a new report from the charity RNID. According to the charity, hearing loss affects 55% of people over 60.

Negative attitudes towards mental illness Topic(s): Disability: mental health More than half (56%) of survey respondents would not employ someone because of their mental illness, even if they considered the person to be the best candidate for the job, finds a new study from "Time for Change", the mental health campaign run by charities Mind and Rethink.

Recently published Topic(s): Disability: mental health Acas has published its latest policy discussion paper, From stress to distress: the impact of the economic recession on mental health at work.