On Notice
December 2008
Authors:
Noel Deans
+44 (0)20.7360.8187
noel.deans@klgates.com
Paul Callegari
+44 (0)20.7360.8194
paul.callegari@klgates.com
Jackie Cuneen
+44 (0)20.7360.8184
jackie.cuneen@klgates.com
Lisa Perelman
+44 (0)20.7360.8256
lisa.perelman@klgates.com
Susannah Jarvis
+44 (0)20.7360.8271
susannah.jarvis@klgates.com
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In this month’s On Notice we report on significant EAT decisions on harassment by association,
age discrimination and entitlement to time off to care for dependants. We also summarise an
important Court of Appeal decision on equal pay.
Harassment by Association on the Grounds of Religion
The concept of discrimination or harassment by association, i.e. claims based
on conduct directed towards a third party but which affects the claimant, has
featured in several recent editions of On Notice, having cropped up in particular
in the European Court of Justice decision in Coleman v Attridge Law and the Sex
Discrimination 1975 (Amendment) Regulations 2008. Employers should be aware
of the developments because application of the concept means that an employer’s
liability for alleged harassment and discrimination can be potentially very wide and
can include circumstances where the Claimant was not the intended “victim” of the
discrimination. The Employment Appeal Tribunal (EAT) has now given a decision
in Saini v All Saints Haque Centre (EAT/0227/08) which confirms that harassment
on grounds of religion may occur under the Employment Equality (Religion or
Belief) Regulations 2003 where an employer directs conduct motivated by religion
towards a third party.
Mr Saini (a Hindu) was put under pressure to give evidence against his manager
(also a Hindu) by his employers (who were Ravidasi), causing him to resign. The
Employment Tribunal (ET) found that the employer’s conduct towards his manager
was motivated by religion. However, it dismissed Mr Saini’s claim for harassment
because it found that the employer’s conduct was not motivated by Mr Saini’s
religion, but by his manager’s religion. The EAT held that this was incorrect and
allowed the appeal. The regulations were breached not only where an employee
is harassed on the grounds that he holds certain religious or other beliefs but also
where he is harassed because of the religious or other beliefs of someone else.
Employers need to ensure that their policies and training on equal opportunities
and harassment are sufficiently wide to cover liability which could arise “by
association”.
For more information on this case please contact Paul Callegari.
Age Discrimination and Qualifications
In Chief Constable of West Yorkshire Police v Homer (EAT/0191/08) the EAT decided
that an employer did not discriminate against an employee on grounds of his age when
he was close to retirement age and it required him to obtain a law degree before he
could be promoted.
Mr Homer (who was in his early 60’s) worked with the police national legal database.
He applied for promotion but was turned down because he did not meet his employer’s
requirement that he hold a law degree. His employer offered to pay for him to take a
part-time course, but he turned that down on the grounds that it would be too onerous
and that he intended to retire at 65 anyway. The ET found that he had been indirectly
discriminated against on the grounds of age because employees aged 30 to 59 were able
On Notice
to complete a degree before the normal retirement
age of 65, but employees aged 60 to 65 did not have
time to do so.
The EAT overturned that decision on the ground that
there was no particular disadvantage that affected
employees aged between 60 and 65. The employer
treated all employees without a degree in the same
way, i.e. they had to obtain a degree to be promoted,
whatever their age.
It is worth noting also that Mr Homer did not put
forward the argument that the degree requirement
was itself indirect age discrimination because
the growth in higher education has resulted in
significantly more younger than older workers being
in possession of a degree. Had he put forward this
argument, the employer may have been required to
justify its requirement that the successful applicant
should have a law degree.
For more information on this case please contact
Lisa Perelman
EAT Decision on Unexpected Disruption of
Care Arrangements for Dependants
Section 57A Employment Rights Act 1996 gives
an employee the right to take a reasonable amount
of time off when necessary because of unexpected
disruption or termination of arrangements
for the care of a dependant. In RBS v Harrison
(UKEAT/0093/08/LA) the EAT has given a useful
decision regarding the limits of that right.
Mrs Harrison told her employer on 8 December
that her childminder was unavailable on 22
December. She did all she could to make alternative
care arrangements but was unsuccessful. On 13
December she asked her employer for the day off
under the Act, but they refused and subsequently
disciplined her when she stayed at home to look
after her children.
Directive it implemented. The passing of time
between the employee’s discovery of the need to
make alternative arrangements and the taking of
time off was simply a factor to be considered in
deciding whether time off was necessary under the
Act.
For more information on this case please contact
Noel Deans
Court of Appeal Decision on Equal Pay
In Blackburn v Chief Constable of West Midlands
Police [2008] EWCA Civ 1208 the Court of Appeal
had to consider whether an employer which paid
bonuses to employees who worked night shifts
thereby discriminated against female employees who
were not able to work night shifts because of their
childcare responsibilities. The claimants contended
that the arrangement meant that although they did the
same work, they did not receive equal pay for it.
Their argument succeeded before the ET, which
found the employer to be in breach of the Equal
Pay Act 1970. However, it failed before the EAT
and, ultimately, the Court of Appeal. The Court of
Appeal decided that the employer had the legitimate
aim of rewarding employees who did night work. In
the circumstances, it was difficult to see how that
objective would be furthered if employees who did
not do night work were paid the same amount. Any
discrimination which had occurred was therefore
objectively justified.
For more information on this case please contact
Jackie Cuneen
The EAT upheld the ET’s finding that Mrs Harrison
had been entitled to take that time off. The disruption
to the care arrangements does not have to be sudden
or an emergency, as her employer contended. In
that regard the Act provided wider protection to
employees than the minimum required by the
November 2008 | 2
On Notice
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