UNIMAG
A QUARTERLY PERIODICAL UPDATING BRANCH
REPS ON EMPLOYMENT LAW
Issue 8: November 2010
FOR SUBSCRIBING BRANCHES
UNIMAG: Issue 8
2
Content
EDITORIAL
3
NEW LEGISLATION
Equality Act ▪ Codes under the Equality Act ▪ Guidance on the
definition of Disability ▪ Discrimination questionnaires ▪ Minimum
wage ▪ Flexible working ▪ Reforming quangos ▪ Whistleblowing ▪
Employment tribunal statistics
4
IN THE NEWS: religious discrimination
9
CASEWATCH extended case reports:
Bullimore v (1) Pothecary Witham Weld Solicitors (2)
Hawthorne
Victimisation: references
The Manchester College v Cocliff
Fixed-term employees
Commissioner of Police of the Metropolis v Buchanan
Unfair dismissal: proper investigation
11
14
16
SHORT CASE REPORTS
Pregnancy dismissal: dismissing the father ▪ Spiritualism can be a
protected belief ▪ Unfair dismissal: breaks in service ▪ Unfair
dismissal: theft ▪ Stereotyping of mental illness ▪ Equal pay:
equalising terms
18
IN-DEPTH GUIDANCE: direct discrimination: old and new law
28
TABLE: old and new definitions of discrimination
34
RESOURCES AND LINKS
37
Disclaimer
While every effort is made to ensure the accuracy of the contents of this magazine, the
author and publisher can accept no responsibility for advice given in reliance on its
contents. You should always seek guidance through the appropriate UNISON
channels where you need to take action.
© Diversity Works Ltd
UNIMAG: Issue 8
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Editorial
Hi everyone,
Employers often target older workers for redundancy. But over-50s also tend to put
themselves forward. The Employers’ Forum on Age has warned older workers against
being too ready to accept voluntary redundancy. Although the over-50s usually get the
larger payouts because of the way packages are calculated, this may only be a shortterm benefit. Older workers may be underestimating the difficulties of getting back
into work, especially in the recession. The Age and Employment Network (TAEN)
says older workers are the hidden sufferers at this time. It is harder for older workers
to get back into work after redundancy and many are driven out of work permanently.
Interestingly, the latest employment tribunal statistics for 2009/2010 show the
continuing rise of age discrimination claims. At 5200, they have almost caught up
with the number of race discrimination claims started annually. Unfortunately it is not
just older workers who do badly in a recession. As the workforce shrinks and terms
and conditions are driven down, diversity always suffers. There are many voices
claiming that women will bear the brunt over the next few years. It is heartening that,
under all these pressures, UNISON continues to fight for women’s rights to equal pay.
At p26, we report another important legal success in this continuing fight.
Just to remind you, the next issue (February 2011) will be the last of year 2 and will
be shortly followed by a cumulative index for years 1 and 2.
Best wishes,
Tamara
Editor
Tamara Lewis
Publisher
Diversity Works Ltd
Subscriptions E-mail unimag@diversityworks.co.uk or telephone John at
Diversity Works on 0207 431 1712.
Copyright
Diversity Works Ltd
© Diversity Works Ltd
UNIMAG: Issue 8
4
New legislation
The general duty (set out below) is an
improvement on the previous general
The main parts of the Equality Act came
duties in that it covers all the protected
into force on 1 October 2010, including
characteristics, not just race, gender and
the legal definitions of discrimination
disability. It is also important in that it
(direct discrimination, indirect
discrimination, victimisation, harassment, talks about ‘advancing’ equality of
opportunity rather than merely
3rd party harassment and the new
definitions relevant to disability). The Act ‘promoting’ equality, as previously
required. However, the proposed specific
replaces and updates all the previous
duties are a backwards step and are
individual pieces of discrimination
worryingly vague.
legislation. The old legislation will still
apply to any discrimination which
s149 Public sector equality
occurred wholly before 1 October. But if
duty
the discrimination started before 1
(1) A public authority must, in the
October and continued afterwards, the
exercise of its functions, have due
Equality Act will apply. If you like
regard to the need to—
reading unreadable statutory instruments,
(a) eliminate discrimination,
you can find the commencement order –
harassment, victimisation and any
Equality Act 2010 (Commencement
other conduct that is prohibited by
No.4, Savings, Consequential,
or under this Act;
Transitional, Transitory and Incidental
(b) advance equality of opportunity
Provision and Revocation) Order 2010’
between persons who share a
(SI No.2317) on the OPSI website at
relevant protected characteristic
and persons who do not share it;
www.legislation.gov.uk/uksi/2010/2
(c) foster good relations between
317/pdfs/uksi_20102317_en.pdf
Equality Act 2010
persons who share a relevant
protected characteristic and
persons who do not share it.
The Equality Act is a large document as it
covers non-employment areas as well as
all the equality strands. You can also find
The government is still ‘considering’
it on the OPSI website at
whether and when to bring into force
www.opsi.gov.uk/acts/acts2010/uk
sections on the public sector sociopga_20100015_en_1
economic duty, positive action tie-break
rules in recruitment, and ‘combined
The new public sector equality duty in
s149 is likely to come into effect in April discrimination: dual characteristics’.
We will continue to feature a series of
2011. Meanwhile, the government is
short guidance articles in this and future
consulting on regulations setting out
issues of UNIMAG, explaining key
proposed new specific duties under the
aspects of discrimination law and
general duty. The consultation closes on
highlighting where there are changes. All
10 November 2010 and can be accessed
on the Government Equalities Office site case reports based on the old legislation
will also explain whether there are any
via
difference under the Equality Act.
www.equalities.gov.uk/default.aspx
?page=1642
© Diversity Works Ltd
UNIMAG: Issue 8
Codes under the Equality Act
2010
The Equality and Human Rights
Commission has published two statutory
Codes which apply in England, Wales
and Scotland:
 Equality Act 2010 – Code of
Practice on Employment
 Equality Act 2010 – Code of
Practice on Equal Pay.
These were laid before parliament on 12
October 2010 and are technically in draft
form for 40 days until the government
issues an Order bringing them into force.
They can be accessed via links at
www.equalityhumanrights.com/leg
al-and-policy/equality-act/equalityact-codes-of-practice/
Alternatively, go direct to the
Employment Code at
www.equalityhumanrights.com/upl
oaded_files/EqualityAct/employme
nt_code_05.10.10.pdf and the Equal
Pay Code at
www.equalityhumanrights.com/upl
oaded_files/EqualityAct/equal_pay
_code_05.10.10.pdf
The Codes do not impose any legal
implications in themselves, but tribunals
must take into account any relevant parts
of the Codes when reaching a decision.
The Employment Code covers
discrimination in employment and workrelated activities under part 5 of the
Equality Act. It does not cover
discrimination by qualifications bodies
and trade unions – there will be a separate
Code for that.
© Diversity Works Ltd
5
The EHRC says the main purpose of the
Employment Code is to provide a
detailed explanation of the Equality Act,
which should help tribunals, trade union
reps, HR and lawyers understand the law.
Having said that, tribunals and courts are
not bound by the Code’s interpretation of
the law.
Unfortunately the Employment Code is
rather long (311 pages). The Equal Pay
Code is 71 pages. Nevertheless, you
should have copies in your Branch and be
aware of the content, as the Codes do
contain good practice recommendations
which may be helpful for you when
negotiating with employers or handling
disciplinaries and grievances.
Guidance on the definition of
disability under the Equality
Act 2010
As the definition of disability no longer
requires workers to show that the adverse
effect on their normal day-to-day
activities falls within a closed list of
categories, it has been necessary to revise
the statutory ‘Guidance’ on the definition.
The Office for Disability Issues carried
out a consultation on the proposed new
Guidance which closed on 31 October
2010. For latest details, see its equality
page at
www.officefordisability.gov.uk/wor
king/equality-bill.php
Until the new Guidance is issued, the
current Guidance remains in force.
UNIMAG: Issue 8
6
Discrimination questionnaires Flexible working
The questionnaire procedure under
discrimination law is a very important
way for members bringing discrimination
cases in employment tribunals to get
more information and evidence from their
employers. Members complete a form
setting out their complaint and asking a
series of relevant questions. For example,
a member complaining about
discrimination in promotion, can ask who
was short-listed and who got the job,
what were their relevant qualifications
and experience, who made the decision
and why, etc. Questionnaires need to be
sent either before a case starts or within
28 days afterwards.
There is a series of guides to writing
questionnaires on the EHRC website at
www.equalityhumanrights.com
(search ‘Tamara Lewis’ for a list).
Although these guides are still generally
applicable, they were written before the
Equality Act 2010 came into force, and
there have been a few small procedural
changes since then. Writing
questionnaires requires specialist skills
and it is not suggested that branch
officials should do this.
A new standard questionnaire format was
issued from 1 October 2010 to be
consistent with the Equality Act. It is set
out in The Equality Act 2010 (Obtaining
Information) Order 2010 (SI No.2194)
and new forms are available on the
Government Equality Office website via
links on
www.equalities.gov.uk/news/equali
ty_act_2010_forms_for_ob.aspx
© Diversity Works Ltd
Currently there is a right for employees
with at least 26 weeks’ continuous
service to request flexible working, eg
part-time work, reduced hours, job share
or working at home. The reason for the
request must be to care for a child under
17 or, if the child is disabled, under 18.
There is also a right to request flexible
working in order to care for certain adult
relatives, eg partners, spouses, parents,
children, siblings, aunts, uncles and
grandparents.
The government has now announced that
from April 2011, the right to request
flexible working will be extended to
parents of all children under 18. A
consultation on further extending the
right to all employees will be introduced
later this year.
It is important to remember that the
flexible working procedure simply gives
certain employees the right to ask for
flexible working. It does not give them
the right to have their request granted. It
makes sure that employers sit down and
listen to the request promptly and give
written reasons if they refuse, but it is not
much help beyond that. If members want
to challenge the refusal, they need to
consider other employment rights. For
example, refusing to allow a woman to
work part-time for childcare reasons may
be indirect sex discrimination if the
employer cannot justify the refusal.
For more detail on the procedural right to
request flexible working, see The Law &
You, ed 4, p315-319, although note that
on p316, the 2nd line under ‘The statutory
right’ should now read ‘child under 17’
rather than ‘child under 6’.
UNIMAG: Issue 8
Reforming quangos
The government has issued a press
release stating its intention to introduce a
Public Bodies Bill to ‘reform’ hundreds
of non-departmental public bodies (or
‘quangos’) and to ‘help reinvigorate the
public’s trust in democracy’. 192 quangos
will be abolished and many others will be
merged or substantially altered.
Although the Equality and Human Rights
Commission will not be abolished, it will
be radically reformed to ensure that it
refocuses ‘on its core functions of
regulating equality and antidiscrimination law in Great Britain, of
fulfilling EU equality requirements and of
being a National Human Rights
Institution’. So what else has it been
doing?
A transfer of some of the EHRC’s
functions to government departments or
private sector or voluntary bodies is
apparently also under consideration.
There will also be tighter management
and financial controls by parliament. One
worries for its independence.
The Health and Safety Executive is to be
retained, but its spending scrutinised. The
Central Arbitration Committee will
merge with the Certification Office.
Equality 2025 will be retained and extend
its advice on disability issues to areas
previously covered by other bodies such
as the Disability Employment Advisory
Committee.
© Diversity Works Ltd
7
ACAS, the Low Pay Commission and the
Gangmasters Licensing Authority will be
retained, as will the Information
Commissioner.
For more detail of the proposals, see the
cabinet office press release at
www.cabinetoffice.gov.uk/newsroo
m/news_releases/2010/101014quangos.aspx
National Minimum Wage
This is a reminder that the new hourly
minimum wage rates from October 2010
are £5.93 for workers aged 22 and above;
£4.92 for workers aged 18 – 21; £3.64 for
workers aged 16 – 17 and £2.50 for
apprentices.
UNIMAG: Issue 8
Whistleblowing
UNIMAG has often covered the subject
of whistleblowing. In particular, see the
in-depth legal guidance in Issue 5. The
NHS Staff Council has now agreed that
workers in the NHS have a contractual
right – and duty – to raise with their
employer genuine concerns about
malpractice, patient safety or other
serious risks. This agreement will be
included in the terms and conditions of
service handbook. NHS organisations
should develop local whistleblowing
policies in consultation with trade unions.
Mike Jackson, staff side chair and senior
national officer (health) at UNISON says,
‘We must create a climate where staff
feel they are able to raise their concerns
without the fear of reprisals. It is now
down to local trusts and unions to put
policies in place and make sure they
work’.
UNISON-backed case
It is not only in the NHS where
whistleblowing cases can come up.
UNISON helped a whistleblower win her
case against the University of
Gloucestershire in the Bristol
employment tribunal in September. Janet
Merrigan, a Business Development
Manager, was asked by the former
Deputy Vice Chancellor, Paul Bowler, to
look into the university’s finances. He
had been hired to put together a financial
recovery plan for the university. After he
left, the university took action against Ms
Merrigan. The tribunal decided the
university had penalised Ms Merrigan for
raising concerns about financial
mismanagement and awarded her £6000
for injury to feelings.
© Diversity Works Ltd
8
Employment tribunal
statistics
The ‘Quarterly Statistics for the Tribunals
Service, 1st quarter 2010 – 2011 (1 April
2010 – 30 June 2010)’ have just been
published and can be found at
www.justice.gov.uk/publications/d
ocs/tribunals-stats-quarter1-201011.pdf or via a link on
www.justice.gov.uk/publications/q
uart-stats-tribunals.htm
These statistics include all kinds of
tribunal including employment tribunals.
There was a 6% rise in employment
tribunal claims in this period compared
with the same quarter in 2009-10 and a
27% rise compared with 2008-9.
However, this was explained by an
increase in multiple claims. There was a
slight decrease in individual claims.
Employment tribunal statistics are
separately published every year. The
‘Employment Tribunal and EAT statistics
2010 (GB)’ are at
www.justice.gov.uk/publications/d
ocs/tribs-et-eat-annual-statsapril09-march10.pdf To give you a
general idea, in 2009/10 there were
57,400 unfair dismissal claims, 37,400
equal pay claims, 7500 disability
discrimination claims, 5700 race
discrimination claims and 5200 age
discrimination claims. The statistics also
give outcomes of hearings, but this can be
misleading since so many cases settle.
UNIMAG: Issue 8
9
In the news
This quarter, we report on two failed religious discrimination cases by local authority
employees. In both cases, the employees were dismissed not for holding certain
views, but for the way they chose to express their views.
Ms Haye worked as an admin assistant in Lewisham Council’s legal department. She
is a Christian, belonging to the New Beginnings Ministry church. She says that part
of her faith is to ‘witness’ to people, ie to proselytise. As part of that, she believes she
must speak out against homosexuality because it is a sin.
The Lesbian and Gay Christian Movement (‘LGCM’) is an organisation which
challenges homophobia in Christian communities. When she came across their
website, Ms Haye sent an e-mail from work stating ‘you should be ashamed of
yourselves’ and ‘this type of sexualism is sin in itself’, and carrying on in similarly
offensive terms. The Chief Executive of LGCM (Reverend Ferguson) contacted the
Council’s HR to complain that they had received an offensive e-mail from someone
on the Council’s e-mail account. Reverend Ferguson said she found the tone of the email ‘cruel, brutal and aggressive’.
Ms Haye was called to a disciplinary. She argued her views were not homophobic but
were Christian. However, she was summarily dismissed, not for her views, but for
manifesting them in an inappropriate manner and in a way which breached the
Council’s commitment to diversity and equality, as well as its ‘Wired Working
Policy’, which prohibits distributing material which is racially, sexually or otherwise
offensive.
The employment tribunal rejected Ms Haye’s claim for religious discrimination. She
was not sacked for her views, but for the way she expressed them. It said that, having
read the e-mail, ‘on any objective view, it is highly offensive, homophobic and the
language is aggressive and violent’. Any non-Christian employee sending a similar email would equally have been dismissed.
Mr Amachree worked for Wandsworth Council as a homelessness prevention officer.
He started employment in 1991 and had an exemplary record. In 1998, there was a
complaint from a Councillor about advice Mr Amachree had given a member of the
public about his personal religious beliefs, but no disciplinary action was taken.
In 2009, the Council received a written complaint from a service user, Ms X, who was
seeking housing advice. She said that when she told Mr Amachree that she was
suffering from an incurable disease, she was subjected to a 20 minute tirade about
how there was no such thing as an incurable illness and she was ill because she did
not have faith in God. This left her shocked and very upset.
Disciplinary proceedings were invoked against Mr Amachree and he was represented
by a solicitor, Mr Phillips, from the Christian Legal Centre. Mr Phillips asked the
Council whether it would think it appropriate to say, ‘God Bless’. The Council said
officers are advised to leave all religious phrases out of interviews. The Legal Centre
© Diversity Works Ltd
UNIMAG: Issue 8
10
then issued a press release headed ‘Say ‘God Bless’ and we’ll sack you’. The press
release didn’t name Ms X but gave sufficient details for her to be identified.
Following a disciplinary hearing, Mr Amachree was dismissed on grounds that he had
made offensive and inappropriate comments; had breached confidentiality by
releasing sensitive information about a service user, and had damaged the council’s
reputation. He made a tribunal claim for unfair dismissal and religious discrimination.
The tribunal rejected Mr Amachree’s claims. He had been dismissed, not for his
beliefs, but for having an inappropriate conversation with a service user. The tribunal
considered very carefully whether the Council had any conscious or unconscious bias
against Mr Amachree because of his religion. It decided it did not. The Council would
equally have dismissed a non-Christian who inappropriately promoted a strong
personal view with a service user.
The tribunal’s conclusion could apply to so many cases of this kind - ‘His religion
might be the reason for his actions, but it was not the reason for the actions of the
Council’.
© Diversity Works Ltd
UNIMAG: Issue 8
11
CASEWATCH:
Victimisation: references
A protected act is:
 bringing a tribunal case under the
Equality Act
The Equality Act 2010 came into force on
 giving evidence of information in
1 October 2010 replacing previous
connection with such a case
discrimination legislation in respect of
 making an allegation that the
discriminatory actions from that date. The
employer or someone else has
Equality Act (‘EA’) covers the protected
done something contrary to the
characteristics of age, disability, gender
Act
reassignment, marriage and civil

doing anything else in connection
partnership, pregnancy and maternity,
with the Act
race, religion or belief, sex and sexual
orientation.
For example, it is unlawful victimisation
The table on p34 sets out a comparison of to discipline or dismiss the member or
subject the member to any other kind of
the old and new definitions of
discrimination. Apart from pregnancy and detriment because s/he has
 brought a grievance about
maternity, which work a little differently,
discrimination
the key definitions of direct

given evidence for a colleague in
discrimination, indirect discrimination,
a discrimination grievance
victimisation and harassment apply to all

taken up equal opportunities
the protected characteristics.
issues

accused someone of racism
Victimisation
 taken a discrimination case in the
tribunal
The law against victimisation is set out in
Discrimination law: overview
section 27 of the Equality Act.
An employer victimises the member if it
subjects the member to a detriment
because the member has done ‘a
protected act’ or because the employer
believes the member has done – or may
do – a protected act.
In this quarter’s case, an employee’s
former employer wrote a bad reference
for her because she had brought a sex
discrimination tribunal claim against it.
She then got victimised again by a
prospective employer when it found out
about the discrimination claim.
It is not a protected act if the member
gives false evidence or information or
makes a false allegation in bad faith. But
if the member genuinely believes what
s/he is saying, s/he should be protected
even if s/he is wrong.
© Diversity Works Ltd
UNIMAG: Issue 8
Proving victimisation
It is all very well saying that there is
protection for members who want to raise
issues of discrimination. But they still
need to prove their case if they are
victimised. That is not always easy.
You need to prove:
 the member did a protected act. It
is not always easy to prove this if
the member made a verbal
complaint of discrimination.
Complaints of discrimination are
best made unambiguously in
writing from the very beginning

the employer has subjected the
member to a detriment (ie
anything which causes the
member a disadvantage)

because the member did ‘a
protected act’ (ie complained of
discrimination)
Employers rarely admit they are
victimising a worker. So how can the
member prove that the reason s/he has
been disciplined, dismissed, made
redundant, not promoted etc is because
s/he has complained of discrimination?
Helpful evidence is:
 anything which shows the
employer was upset when the
member first complained of
discrimination
 closeness in time between the
member complaining of
discrimination and the employer
subjecting him/her to a detriment.
There is no fixed time period, but
the longer the gap, the harder it is
to prove
 different treatment of the member
by the employer before and after
s/he complained of discrimination
© Diversity Works Ltd
12

different treatment of the member
compared with work colleagues
(who have not complained of
discrimination) in similar
circumstances.
Proving that a bad reference is
victimisation
It can be hard to prove a bad reference is
victimisation, because much of the
content of a reference is down to opinion.
The more extreme the criticisms in the
reference, the easier it may be to show
they are exaggerated and untrue. Look for
contradictions between what the
reference says and the content of the
member’s last appraisal or any other
documents.
In this quarter’s case, it was good
evidence of victimisation that the referee
volunteered that the worker had brought a
discrimination claim without actually
being asked for that information.
This quarter’s case:
Bullimore v (1) Pothecary Witham
Weld Solicitors (2) Hawthorne
UKEAT/0189/10
the facts
Ms Bullimore worked for a solicitors’
firm, Witham Weld (which later merged
to become Pothecary Witham Weld),
from 1999 – 2004. Her departmental
manager was Mr Hawthorne. After she
left, she brought an unfair dismissal and
sex discrimination tribunal case, which
was subsequently settled. In 2008, Ms
Bullimore was offered a job by a firm
called Sebastians, subject to satisfactory
references.
Mr Hawthorne wrote a damaging and
negative reference, referring to her poor
relationship with the partners and the
UNIMAG: Issue 8
occasional inflexibility of her opinions.
When asked why she left, he said she had
resigned and then gratuitously added that
she had brought a tribunal case against
the firm. As a result of the reference,
Sebastians made its job offer subject to a
probationary period, and the offer
eventually fell through.
what the employment tribunal said
Ms Bullimore brought tribunal claims for
victimisation under section 4 of the Sex
Discrimination Act 1975. (This would
now be section 27 of the Equality Act
2010). She won her case against her old
employer (now Pothecary Witham Weld)
and the prospective employer
(Sebastians).
The tribunal said it was victimisation by
Pothecary Witham Weld because Mr
Hawthorne had been significantly
influenced in what he chose to say by the
fact that Ms Bullimore had brought a sex
discrimination case against his firm. The
tribunal thought that Sebastians were also
guilty of victimisation as they were
influenced by the information that Ms
Bullimore had brought a sex
discrimination case against her former
employer.
13
the employment appeal tribunal
decision
The Employment Appeal Tribunal
overturned the decision. It said that Ms
Bullimore had lost earnings as a result of
victimisation by both the old employer, in
giving the bad reference, and the
prospective employer, in withdrawing the
job offer. As a matter of fairness, an
employer who victimises an employee by
writing a bad reference should be
responsible for the consequences. It may
or may not be possible also to make a
claim against any prospective employers
who withdraw job offers as a result.
As for how to share out responsibility for
loss of earnings where the prospective
employer is also found guilty of
victimisation, as here, the EAT felt both
parties were probably completely
responsible for all the loss. However, it
did not finally decide that issue.
the effect of the case
The case is an important warning to
employers not to give discriminatory
references. They can’t avoid liability for
the financial consequences of such
references simply by saying the
prospective employer has also victimised
the member. As the Employment Appeal
Ms Bullimore reached a financial
Tribunal said, ‘the giving of
settlement with Sebastians in respect of
unsatisfactory references is a not
the finding against them, but went back to uncommon form of victimisation. It
the tribunal for an award against
would be most unsatisfactory if a
Pothecary Witham Weld and Mr
claimant who lost the opportunity of
Hawthorne.
employment as a result of such a
reference were unable to recover
The tribunal awarded Ms Bullimore
substantial damages from his former
compensation for injury to feelings in
employer.’
respect of Pothecary Witham Weld’s
behaviour, but made no award for loss of legal importance rating: 3/5.
earnings against the firm. This was
The case is useful, but probably only
because it thought that the firm was not
states the law as it was already
responsible for loss of earnings caused by understood.
Sebastians’ decision to withdraw the job
offer. Ms Bullimore appealed.
© Diversity Works Ltd
UNIMAG: Issue 8
14
CASEWATCH:
Fixed-term employees
Discrimination against fixedterm employees
The Fixed-Term Employees (Prevention
of Less Favourable Treatment)
Regulations 2002 give some protection
against discrimination to employees
employed on a fixed-term contract. A
fixed-term contract is one which finishes
on a specified date or on completion of a
particular task or when a specific event
does or does not happen. It is still a fixedterm contract, even if it contains a clause
allowing termination by either side on
giving notice. The Regulations don’t
protect agency workers.
A fixed-term employee must not be
treated less favourably than a comparable
permanent employee just because s/he is
a fixed term employee. A comparable
permanent employee means someone
employed by the same employer on
broadly similar work who is based at the
same establishment or, if there is no one
comparable at the same establishment,
then at another establishment.
Examples of less favourable treatment
could be denial of benefits, eg free gym
membership and travel loans; less access
to training; a lower hourly rate of pay or
fewer allowances; refusal of promotion;
and selection first for redundancy.
The employers’ defence
Employers have a defence if they can
justify the less favourable treatment on
objective grounds. Employers can also
justify less favourable treatment if the
terms of the fixed-term employee’s
contract, taken as a whole, are no less
favourable than those of a comparable
permanent employee.
© Diversity Works Ltd
Time-limits
Any tribunal claim for less favourable
treatment must be brought within 3
months of the action complained of.
Becoming permanent
Fixed-term employees have the right to
be informed of any available vacancies. It
is enough if the vacancy is advertised
generally in a way which the employee
has a reasonable opportunity of seeing.
Once fixed-term employees have been
continuously employed on more than one
fixed-term contract for four years, they
become permanent employees unless the
employer can objectively justify keeping
them as fixed-term employees.
Employees can request a written
statement confirming their new status as
permanent.
A few thoughts
There are many fixed-term employees in
the public sector. It is important that their
rights are protected, because otherwise it
will undermine the rights of permanent
employees.
Be careful when taking up these rights.
Many contract workers are not in fact
‘employees’ or their status is uncertain.
The danger of not being an ‘employee’ is
that they will not qualify for unfair
dismissal protection. They will also not
be protected by these Regulations, though
some people think this may be wrong
under European law.
For more detail about the Fixed-Term
Employees Regulations, see The Law &
You, ed 4 at pages 25 – 27.
UNIMAG: Issue 8
This quarter’s case:
The Manchester College v Cocliff
UKEAT/0035/10
the facts
Mr Cocliff was an employee of
Manchester College and worked as a
part-time sessional lecturer at Stoke
Heath Young Offenders Institution on
four days/week. He had been employed
on a succession of fixed-term contracts
since 2005.
Mr Cocliff claimed that six items in his
contract were less favourable than those
of a permanent Grade B lecturer.
what the employment tribunal said
First of all, the tribunal agreed a Grade B
lecturer was a comparable permanent
employee. There was not a vast amount
of difference between what they each did.
Mr Cocliff did all the same work except
for induction, placements, marketing, less
liaison with external moderators and no
final responsibility for quality.
15
There were 3 steps for the tribunal to
decide, in this order:
1. Were Mr Cocliff and his
comparator employed on the same
or broadly similar work?
2. Was the less favourable treatment,
ie the difference in 6 contract
terms, on grounds that Mr Cocliff
was a fixed-term employee?
3. If so, was the treatment justified
on objective grounds?
Rather illogically, the tribunal had
considered question 3 before question 2,
and that had led it to the wrong analysis.
the effect of the case
We have reported this case because it is
important to know about the Fixed-Term
Employees Regulations, but the case has
no legal importance in itself. It only
corrects some muddled thinking by the
tribunal. The EAT usefully sets out three
sequential stages for considering whether
a fixed-term employee has a case.
One side issue was that Mr Cocliff had
The tribunal decided that Mr Cocliff was not made it clear in his witness statement
whether he was claiming he was less
less favourably treated because he was a
favourably treated because he worked on
fixed-term employee and that the
a fixed-term contract or because he was a
treatment was unjustified.
part-timer. He seemed muddled on the
The College appealed.
point and this had annoyed the tribunal. If
you do have a member complain to you
the employment appeal tribunal
about less favourable treatment compared
decision
with a work colleague, you need to be
The EAT overturned the decision and
send it to a new tribunal to decide all over very clear in your own mind about the
basis for a member’s less favourable
again. The reason was that the tribunal
treatment. Is it because s/he is a fixed
had been completely unclear in its
term employee or because s/he is a partreasoning and had not logically worked
time worker (which is also protected) or
through the steps which needed
for some other reason altogether?
consideration.
legal importance rating: 1/5.
© Diversity Works Ltd
UNIMAG: Issue 8
16
CASEWATCH:
Unfair dismissal: proper
investigation
Unfair dismissal: overview
Employees with at least one year’s
continuous service are eligible to claim
unfair dismissal. Whether or not a
dismissal is unfair depends on whether an
employer has acted unreasonably in
deciding to dismiss the member.
The tribunal cannot substitute its own
decision. It’s not a question of whether
the tribunal would personally have
decided to dismiss the member. Instead,
the tribunal must decide whether the
dismissal was within the ‘band of
reasonable responses’.
If a tribunal decides that one reasonable
employer could reasonably dismiss the
member, even if another reasonable
employer might reasonably not dismiss
the member, the member will lose. The
member only wins if dismissal was not a
reasonable option.
Misconduct dismissals
Where a member is dismissed for
misconduct, the issue is not whether or
not the member committed the
misconduct. The question is whether the
employer reasonably believed the
member had committed the misconduct,
having carried out a fair investigation.
© Diversity Works Ltd
The important case of British Home
Stores v Burchell [1978] IRLR 379,
EAT, says there are these 3 stages:
 the employer must prove it genuinely
believed the employee committed the
misconduct
 the belief must be based on
reasonable grounds
 there must have been a proper and
adequate investigation.
The final step is to consider whether
dismissal was a fair sanction.
In this quarter’s case, the employer
skipped the 3 Burchell stages altogether
and went straight to the final step.
This quarter’s case:
Commissioner of Police of the
Metropolis v Buchanan
UKEAT/0518/09
the facts
Ms Buchanan had been employed since
1991 as a civilian Scenes of Crime
Officer. In March 2008, she attended a
farewell drinks party at work which
started early afternoon and carried on for
the rest of the day. She had too much to
drink. An incident occurred regarding
possible non-payment of a taxi fare, when
she became abusive to the taxi driver and
stated that she was a police officer. She
was taken down to a police station by
some other police officers, where she was
kept in custody for a number of hours. At
the end of the investigation, she was
offered a ‘penalty notice disposal’
(‘PND’). This procedure gives someone
UNIMAG: Issue 8
the option of accepting a fixed penalty
provided they pay up within 21 days. The
procedure makes clear that acceptance of
the penalty is neither an admission of
guilt nor a formal conviction.
Ms Buchanan was then sent a letter by
her employer (the Metropolitan Police –
‘MPS’) requiring her to attend a
convictions board. The letter said:
‘It is MPS policy that a member of
police staff who is convicted,
cautioned or given a formal
warning for a criminal or serious
traffic offence should attend a
convictions board to show cause
why they should not be dismissed.
In view of your recent conviction of
causing harassment, alarm or
distress contrary to the Public Order
Act, you are required to attend a
board.’
For some reason, the Metropolitan Police
treat a PND as a warning or a conviction.
Ms Buchanan attended the board and was
dismissed.
what the employment tribunal said
The tribunal found the dismissal unfair. It
felt Ms Buchanan should have been
called to a disciplinary board not to a
convictions board. The starting point of
the convictions board was that Ms
Buchanan had committed gross
misconduct and its focus was to look at
mitigating factors. The board did not
follow the three stages of the BHS v
Burchell test. It jumped to the last stage,
ie whether dismissal was a fair sanction.
In effect, it treated Ms Buchanan as guilty
until proved innocent.
The Metropolitan Police appealed. There
was also another point regarding the
statutory dispute resolution procedures,
© Diversity Works Ltd
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but that point is not the subject of this
report.
the employment appeal tribunal
decision
The EAT rejected the appeal. Admittedly
the potential for gross misconduct was
there – the nature of the drunkenness, the
way Ms Buchanan spoke to the taxi
driver and other police officers, the use of
her identity and generally bringing the
police into disrepute. However, the board
had not properly investigated. There was
no proper analysis of the facts before
proceeding on to the penalty and
mitigation. The appeal procedure did not
help because it did not allow a challenge
to the facts underlying the conviction.
The EAT said there should now be a
hearing to decide on Ms Buchanan’s
remedies. On any view, this was a poor
piece of behaviour on her part, and that
may well be reflected in the tribunal’s
decision regarding whether to order
reinstatement and how much
compensation to award.
the effect of the case
The case has no general legal importance
as the need to follow the BHS v Burchell
stages is well-established. However, the
case may be very useful for members
who are employed by the police.
Apparently this was the first time there
has been an appeal against the use of a
convictions board following a PND
notice. The EAT commented that it hoped
the Metropolitan Police would rethink its
procedure, because quite clearly a
disciplinary procedure would be more
appropriate as gross misconduct has to be
investigated and established, not taken for
granted just because a PND was issued.
legal importance rating: 2/5.
UNIMAG: Issue 8
18
SHORT CASE REPORTS
PREGNANCY DISMISSAL:
DISMISSING THE FATHER
Kulikaoskas v (1) MacDuff Shellfish
(2) Watt UKEAT/0062/09
It is unlawful to dismiss a woman
because she is pregnant. But is it
unlawful to dismiss a man because of his
partner’s pregnancy?
Mr Kulikaoskas started work as a general
operator in a shellfish factory in June
2009. He was dismissed one month later.
He believed the reason was that his
partner, who also worked at the factory,
was pregnant. She was dismissed at the
same time and brought her own tribunal
claim.
The EAT rejected Mr Kulikaoskas’s
appeal. It did not agree that the wording
of the relevant European Directives or
case law meant men were protected in
this situation. It said that pregnancy and
maternity were different from all the
other protected characteristics. Whereas
European law might cover ‘associative’
discrimination in regard to other
protected characteristics, pregnancy and
maternity were in a special category
because only women became pregnant.
The EAT said the position was clear and
refused to make a reference to the
European Court of Justice.
comment: This test case was brought
under the old law, ie the Sex
Discrimination Act. The EAT said it was
Mr Kulikaoskas brought a tribunal claim not entirely clear whether the position
under s3A of the Sex Discrimination Act would be the same under the Equality
regarding his own dismissal. S3A says it
Act. Section18(2) of the EA, which deals
is unlawful to treat a woman less
specifically with discrimination at work
favourably on the ground of her
because of pregnancy and maternity, is
pregnancy at any time while she is
similar to the old law as it explicitly
pregnant or on maternity leave.
refers to discrimination ‘against a woman
… in relation to a pregnancy of hers’.
The employment tribunal rejected Mr
However, s13 of the EA says it is
Kulikaoskas’s claim. It said that the Sex
unlawful to directly discriminate against a
Discrimination Act did not cover
worker because of a protected
discrimination against a man because of
characteristic. Pregnancy or maternity are
someone else’s pregnancy. Backed by the amongst the protected characteristics.
Equality and Human Rights Commission, This wording would cover ‘because
Mr Kulikaoskas appealed. He argued that, someone else has the protected
although the wording of the Sex
characteristic’. This concept of
Discrimination Act did not strictly cover
associative discrimination under s13 is
the situation, European law required him explained further in this quarter’s into be protected.
depth guidance feature at p28.
© Diversity Works Ltd
UNIMAG: Issue 8
SPIRITUALISM CAN BE A
PROTECTED BELIEF
Greater Manchester Police
Authority v Power UKEAT/0434/09
Under s13 of the Equality Act, it is
unlawful to discriminate against a worker
because of religion or belief (or lack of
religion or belief). Section 10 says
‘belief’ means any religious or
philosophical belief. Before 1 October
2010, the law was set out in the
Employment Equality (Religion and
Belief) Regulations 2003.
Many religions and beliefs can be
covered. In UNIMAG, Issue 5, we
reported the key case of Grainger PLC v
Nicholson [2010] IRLR 4, EAT. In
Grainger, the EAT said that a
philosophical belief about climate change
could be a protected belief. The EAT also
set out some guidelines for which beliefs
should be covered:
 The belief must be genuinely
held.
 It must be a belief and not an
opinion or viewpoint based on the
present state of information
available.
 It must be a belief as to a weighty
and substantial aspect of human
life and behaviour.
 It must attain a certain level of
cogency, seriousness, cohesion
and importance.
 It must be worthy of respect in a
democratic society, be not
incompatible with human dignity
and not conflict with the
fundamental rights of others.
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In the present case, Mr Power was
employed for 18 days in 2008 as a trainer
of Special Constables. He was dismissed
partly because of his work for
neighbouring police forces and partly
because of his current work in the psychic
field.
Mr Power claimed in the employment
tribunal that he was dismissed because of
his religion and belief. He said, ‘My
religion = Love; My Beliefs are those of
Spirituality, ie the ‘Spirit’ or ‘motivating
energy’ that animates living things
survives physical death.’
At a preliminary hearing, the tribunal
decided that Mr Power’s beliefs were
within the legal definition and so
protected by the law. The Employment
Appeal Tribunal confirmed this decision
on appeal.
Applying the Grainger guidelines, belief
in life after death and the capacity to
communicate with spirits ‘on the other
side’ is capable of amounting to a belief
which is worthy of respect in a
democratic society and has the necessary
cogency, seriousness, cohesion and
importance. Mr Power was an adherent of
the Spiritualist Church which was
founded in 1853. In the 2001 census, it
was the 8th largest faith group in Britain
with 32,404 people.
UNIMAG: Issue 8
UNFAIR DISMISSAL: BREAKS IN
SERVICE
Hussain v Acorn Independent
College Ltd UKEAT/0199/10
20
The Employment Appeal Tribunal
agreed. It overturned the tribunal decision
and said Mr Hussain did have at least 1
year’s continuous service. The reason for
Mr Hussain not working during the 7
To claim ordinary unfair dismissal,
week interval was that there was no work
employees must have at least one year’s
to be done at that time – it being the
continuous service. This means they must summer holidays. Mr Hussain’s first
have been employed by their employer on period of employment ended because
some kind of contract at some point in
there was no more work to do and his
every week for a year. It does not matter
employment restarted in September when
if for some of that time, the member was the classes restarted. The period of nonon holiday or off sick. But if s/he leaves
employment was therefore due to a
the employer (whether by resignation or
temporary cessation of work. It was
dismissal) and is taken back on some time irrelevant that Mr Hussain had not known
afterwards, s/he will have to start
that he would be re-employed when his
counting his/her length of service all over cover contract finished on 8 July.
again. However, there are some
exceptions. One exception is where the
Comment: This case does not set any
member was absent ‘on account of a
new law, but it is a useful illustration of
temporary cessation of work’.
the rules about breaks in service.
Employees of schools, colleges and
Mr Hussain was an economics teacher.
universities often have this problem
He was offered a post on a temporary
because they tend to be employed termcontract, covering for a teacher (Mr
time only or from September – July.
Urquhart) who was ill. He started on 25
Another rule which preserves continuous
April 2008 and his last session was 8 July service over a break is where the
2008. Mr Urquhart unexpectedly resigned employee is absent from work in
on 8 July. On 7 August, Mr Hussain
circumstances such that, ‘by arrangement
reached a written agreement with the
or custom’, s/he is regarded as continuing
college that he would take over from Mr
in employment. See The Law & You, ed
Urquhart. He would be employed on a
4, p100 for who can claim unfair
permanent contract from the start of the
dismissal, and p101 regarding the special
new term on 5 September.
rules on breaks in service.
Mr Hussain was later dismissed on 12
June 2009 and claimed unfair dismissal.
The employment judge threw out his case
because he did not have one year’s
service. Mr Hussain appealed. He said
that his service should be regarded as
continuous from 25 April 2008. He said
the break in service from 9 July – 4
September should not count because it
was due to a ‘temporary cessation of
work’.
© Diversity Works Ltd
UNIMAG: Issue 8
UNFAIR DISMISSAL: THEFT
Celebi v Scolarest Compass Group
UK & Ireland Ltd UKEAT/0032/10
Members are entitled to know exactly
what they are supposed to have done
wrong before being dismissed. Otherwise
they have no opportunity to defend
themselves properly.
Scolarest provide catering services at
educational facilities. It employs 7000
people. Ms Celebi was employed to work
as Chef Manager in Merton Sixth Form
College in southwest London. Takings
from pupils and staff belonged to the
College.
Ms Celebi knew about the stock and cash
accounting procedures. On 14 November
2006, she said she collected £3400 in
cash and put it in a bag, which she gave
to the courier, Securitas. She said the bag
contained signed slips including the
signature of a Ms Haynes. In fact,
contrary to what Ms Celebi said, Ms
Haynes had not watched the money being
counted or being put in the bag.
The bank reported that only £400 had
been received. Following an
investigation, Ms Celebi was invited to a
disciplinary hearing in respect of
‘Incorrect reporting of stock figures;
Following of financial procedures;
Discrepancies in banking’. She was told
this could lead to her dismissal.
© Diversity Works Ltd
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After the disciplinary hearing, Ms Celebi
was dismissed by the operational
manager, Ms Smith. She believed Ms
Celebi had taken the money and put the
banking slip into the bag with only £400.
The dismissal letter said Ms Celebi had
been dismissed for ‘Incorrect reporting of
stock figures; Failure to follow the
company financial procedures;
Discrepancy in banking during
September and October 2006.’ There was
no mention of theft, which was the real
reason in Ms Smith’s mind.
The tribunal did not find unfair dismissal.
It thought it was not unreasonable not to
have told Ms Celebi that she was being
investigated for theft, because there may
have been a good explanation, in which
case it would have been better that she
had not been charged with theft. The
Employment Appeal Tribunal disagreed
and overturned the decision.
The EAT said money can go missing for
a number of reasons, eg inefficiency,
mistake, the crimes of others, or crime by
the particular employee. An employer
approaches the issue in different ways
according to the results of its preliminary
investigation. There are bound to be
different responses from an employee
accused of negligence, inefficiency and
dishonesty. But it was never spelled out
to Ms Celebi that she was accused of
dishonesty. It was an elementary part of
fair procedures to alert Ms Celebi to the
charge of dishonesty. It is a fundamental
part of a fair disciplinary procedure that
an employee knows the case against her.
An employee should not be found guilty
of a charge which has not been put to her.
UNIMAG: Issue 8
The EAT said the dismissal was therefore
unfair because of unfair procedures.
However, the case of Polkey v AE
Dayton Services Ltd [1987] IRLR 503,
HL says that compensation can be
reduced to reflect the chance that, even if
fair procedures had been followed, the
employee would still have been
dismissed. Ms Celebi’s compensation
could also be reduced for ‘contributory
fault’, ie if she did anything to cause or
contribute to her dismissal. The EAT sent
the case back to the same employment
tribunal to decide whether Ms Celebi’s
compensation should be reduced for these
reasons.
© Diversity Works Ltd
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Comment: Where the member is called
to a disciplinary hearing in connection
with missing money, it is important
always to get clarification prior to the
hearing as to whether she is accused of
dishonesty or failure to follow procedures
or simply carelessness.
For more on unfair dismissal and
dishonesty, see ‘The Law & You’, ed 4,
page 113. More detail regarding
compensation for unfair dismissal is in
‘The Law & You’ at pages 329 – 331.
UNIMAG: Issue 8
STEREOTYPING OF MENTAL
ILLNESS
Aylott v Stockton-on-Tees Borough
Council [2010] EWCA Civ 910
This case is interesting on its facts
because it shows how workers can suffer
as a result of stereotypical views about
mental illness. The case also makes some
important legal points, particularly about
how direct discrimination should be
proved.
The claim
Mr Aylott worked for Stockton-on-Tees
Borough Council. He had bipolar
affective disorder and was a ‘disabled
person’ under the Disability
Discrimination Act 1995. Mr Aylott
successfully claimed direct disability
discrimination, disability-related
discrimination, harassment and failure to
make reasonable adjustments as well as
unfair dismissal. The employment
tribunal awarded him over £30,000. The
Employment Appeal Tribunal overturned
the various findings of disability
discrimination. Mr Aylott appealed to the
Court of Appeal.
The facts
Mr Aylott worked as Business Support
Manager from May 2004. In 2005, he
submitted a list of 17 complaints
regarding difficulties with colleagues in
the Business Support Team. While Mr
Aylott was off sick, his allegations were
investigated and rejected under the
Dignity at Work procedure. It was
recommended that he return to work
when his condition had stabilised and a
different post be found for him without
line management responsibility, but
which used his knowledge and expertise.
It was subsequently agreed that he return
to work on 9 January 2006 in a different
team headed by Sue Daniels; that he
© Diversity Works Ltd
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would have weekly one-to-one meetings
with her and no line management
responsibility. All went well for a while,
but after a few days off sick with chest
problems, he returned to work on 8
February 2006 to a totally different
atmosphere. Strict deadlines were set,
there was reference to a delay in meeting
them and his performance was closely
monitored. On 22 February, Mr Aylott
went off sick with stress-induced chest
pain.
When he returned to work on 13 April, a
meeting took place at which there was
some shouting and ranting by Mr Aylott,
and he was sent home. Ms Daniels felt
Mr Aylott was not well enough to return
to work and that his behaviour towards
staff was unprofessional, intimidating and
wholly inappropriate. The Council
suspended Mr Aylott pending a
disciplinary on 18 April. When the
Council discovered Mr Aylott had been
admitted to hospital on 14 April, it
withdrew the suspension and disciplinary.
In July, the Council obtained a medical
report saying Mr Aylott was unfit to
return to work because of his mental
condition. The HR Manager had written
to the doctor describing Mr Aylott’s
conduct as intimidating and scary, and
that Mr Aylott appeared to be erratic,
unpredictable and over-exuberant, which
made him uncomfortable to work with.
On 6 September, Mr Aylott was
dismissed with two months notice ‘on
grounds of capability (health)’. In total,
he had had 147 days off sick during 2005
and 115 days paid leave during the
Dignity at Work investigation in 2005.
UNIMAG: Issue 8
The law
Under s3A(5) of the Disability
Discrimination Act 1995 and also under
section 13 of the Equality Act 2010, it is
direct discrimination for an employer to
treat a disabled person less favourably
because of his/her disability. The
comparison is with how the employer
treats or would treat someone without
that particular disability.
Where there is no real life ‘comparator’,
the tribunal can ask itself how a
‘hypothetical comparator’ would have
been treated. A comparator is someone
whose circumstances are the same as
those of the claimant in all relevant
respects, but who does not have the
particular disability. For more detail
about proving direct discrimination and
comparators, see the in-depth guidance
feature on p28.
The employment tribunal’s
decision
The tribunal believed Mr Aylott’s
dismissal was direct discrimination. It
said that the treatment of Mr Aylott after
his return from sickness, by imposing
deadlines and strict monitoring, and by
referring to his performance; then the
treatment of him in April 2006 and
ultimately his dismissal, were all enough
to shift the burden of proof. The tribunal
felt that a comparator who had a similar
sickness record in respect of, eg, a
complicated broken bone, would not have
been subjected to the same treatment.
Undue pressure was exerted on him,
when the Council was aware he had been
off sick due to stress. On Mr Aylott’s
return to work in April 2006, there was
clearly some panic by the Council. This
was the result of stereotypical views of
mental illness. Mr Aylott’s line manager,
Mr Diggins, ignored Ms Daniel’s
instructions to have a welfare/return to
© Diversity Works Ltd
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work meeting with Mr Aylott and send
him home. Instead he gave Mr Aylott
tasks and deadlines which provoked the
heated meeting. The subsequent decision
to suspend him and hold a disciplinary
was extremely harsh when an informal
approach would have been sufficient. In
addition, the HR Manager’s description
of Mr Aylott’s conduct as ‘intimidating
and scary’ did not reflect the statements
made by the employees present at the
time. The tribunal said the Council had
probably decided it could no longer put
up with Mr Aylott. But his behaviour had
never been threatening and there was
medical evidence he could continue to
work in a low key and non-stressful role
rather than a managerial position. The
actions of the Council’s managers were
direct discrimination based on a
stereotypical view of mental illness. The
Council appealed.
The employment appeal tribunal
decision
The EAT overturned the employment
tribunal decision. Regarding direct
discrimination, it thought the employment
tribunal had constructed the wrong
‘hypothetical comparator’. It was not
enough that the comparator had the same
sickness record as Mr Aylott; he also had
to be someone whose past conduct and
performance had caused concern. Mr
Aylott appealed.
UNIMAG: Issue 8
The Court of Appeal decision
Mr Aylott won his appeal to the Court of
Appeal. The Court of Appeal particularly
focussed on the issue of direct
discrimination.
It said that there was nothing wrong with
the hypothetical comparator which the
tribunal had constructed, ie a person who
did not have Mr Aylott’s particular
disability, but who had a similar sickness
absence record. The tribunal was correct
to create a comparator who did not have
the conduct and performance difficulties
which were caused by Mr Aylott’s
disability.
In any event, the Court of Appeal thought
it was not always helpful in direct
discrimination cases to start by asking
whether the claimant had been treated
less favourably than a hypothetical
comparator who did not have his
disability. The key question was why the
claimant had been treated as he had. If he
had been treated that way because of his
disability, then it would usually follow
that a hypothetical comparator without
that disability would have been treated
better. In this case, on the evidence of
stereotyping, the tribunal was perfectly
entitled to find direct discrimination.
© Diversity Works Ltd
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Comment:
For an explanation of the importance of
comparators in direct discrimination
cases, see our in-depth guidance feature
at p28 of this Issue. The Court of Appeal
in this case is talking about the stages
which a tribunal should go through when
deciding whether direct discrimination is
proved. Usually a tribunal should ask
itself:
1. Has the member been less
favourably treated than a
comparator?
2. Was that less favourable
treatment because of a protected
characteristic?
This works where there is an actual
comparator. But where there is no actual
comparator and the member can only
make a hypothetical comparison, it is
impossible to start with question 1. In that
situation, the Court of Appeal says it is
easier simply to consider ‘the reason
why’ the member has been treated badly.
If the answer is – ‘because of a protected
characteristic’ – then the answer to
questions 1 and 2 will almost inevitably
be ‘yes’.
The different types of disability
discrimination are described in the long
guidance feature in UNIMAG, Issue 7.
Direct discrimination is very useful
because there is no justification defence
open to employers. However, it rarely
applies. Most cases involve failure to
make reasonable adjustments or the new
concept of ‘discrimination arising from
disability’.
UNIMAG: Issue 8
EQUAL PAY: EQUALISING TERMS
Brownbill & others v St Helens &
Knowsley Hospital NHS Trust
UKEAT/0074/10
In equal pay claims, women must
compare their contract terms with those
of male comparators. Sometimes it is not
obvious what amounts to a ‘separate’
term and this can make a difference.
In this important UNISON-backed case,
the term in dispute concerned a
percentage enhancement of basic pay for
working at unsocial times within normal
working hours (ie not overtime). The
women argued this was a separate term
and should be equalised. The Trust
argued that it was all part of a basic pay
term. If you looked at the total basic pay
with the unsocial hours enhancements
added in, the women happened to get
higher pay than men, and they should
therefore lose their case.
Ms Logan and Ms Reece were Band 2
health care assistants. Ms Brownbill and
Ms Southern were Band 2 receptionists.
Their comparators were men working as
drivers, porter/drivers and parking
assistants. Ms Hughes was a Band 3
senior health care assistant. Her
comparators were theatre porters.
If Ms Logan, Ms Reece or Ms Hughes
worked their normal working hours on
Saturdays, they received time and a third
(133%) pay. On Sunday or Bank
Holidays, they received time and two
thirds (166%) pay. Their male
comparators received uplifts of 150% and
200% respectively.
.
© Diversity Works Ltd
26
Ms Brownbill and Ms Southern were paid
115% for working 8pm – 11pm and
125% for working nights. Their
comparators were paid 120% and 133%
respectively.
The employment judge decided that the
terms regarding uplifts for unsocial hours
were discrete contract terms. But then,
contradicting himself, he said the terms
were not discrete and comparable, but
simply formed part of basic pay. He said
it was the basic pay which should be
compared overall, and the women were
not paid less, looking at things together.
The judge was influenced by the case of
Degnan v Redcar & Cleveland
Borough Council [2005] IRLR 615. In
that case, the male comparators were paid
the same basic rate as the women, but
also received a fixed bonus (just for
working their hours) and an attendance
allowance for turning up, although not
necessarily staying till the end of the
shift. The Court of Appeal said all the
monetary payments should be added
together and regarded as one term.
The EAT in this case (Brownbill) said
that the Degnan decision should be read
as applying to its own particular facts. In
Degnan, the women had conceded that
the fixed bonus was part of basic pay.
Regarding the attendance allowance,
since it was paid simply for turning up
and not even for completing a shift, it was
also clearly part of basic pay. This was
quite different from the facts in the
present case.
UNIMAG: Issue 8
The EAT did not think this was an unfair
result. Although some of the women in
Brownbill were paid globally more than
their comparators, the reasons for that
were currently unknown. It may be that
some of them had received long-service
awards for example. Amalgamating
different elements of remuneration tends
to obscure historic discrimination and the
important thing is to secure transparency
in pay.
The case is now sent back to the
employment tribunal to decide the other
issues, eg whether there is a valid nondiscriminatory reason for the differential
in unsocial hours payments.
© Diversity Works Ltd
27
Comment: This is a very important
decision, clarifying that Degnan should
not be taken to mean that all pay elements
must always be added together before any
comparison is made. That is likely to lead
to unfair results because there are
different reasons why employees may be
paid different basic pay.
For more detail on equal pay law, see The
Law & You, ed 4, pages 37 - 42.
UNIMAG: Issue 8
28
IN-DEPTH GUIDANCE: Direct Discrimination: old and new law
Each quarter, we will have a guidance article on a legal area of common concern for
UNISON branches. If your branch is a subscriber, e-mail us with requests for future
themes. Requests regarding discrimination law are particularly welcome at present
as we are updating you on the Equality Act 2010
Overview
Direct discrimination
The majority of the Equality Act 2010
came into force on 1 October 2010,
replacing and updating the previous
separate pieces of discrimination
legislation, ie the Equal Pay Act 1970,
Sex Discrimination Act 1975, Race
Relations Act 1976, Disability
Discrimination Act 1995, Employment
Equality (Sexual Orientation) Regulations
2003, Employment Equality (Religion
and Belief) Regulations 2003, and
Employment Equality (Age) Regulations
2006.
The wording of the definition
Section 13(1) of the Equality Act says:
‘A person (A) discriminates against
another (B) if, because of a
protected characteristic, A treats B
less favourably than A treats or
would treat others.’
It is direct discrimination to treat the
member less favourably because of
his/her age, race, religion, sex etc.
The Equality Act (‘EA’) covers the
protected characteristics of age,
disability, gender reassignment, marriage
and civil partnership, pregnancy and
maternity, race, religion or belief, sex and
sexual orientation.
This was also true under the old
legislation. You can still look at the cases
which applied under the Race Relations
Act and Sex Discrimination Act etc. The
old legislation used the phrase ‘on
grounds of’ instead of ‘because of’, but
parliament has stressed that the words
‘because of’ should mean the same as ‘on
grounds of’. Hopefully courts will agree.
This guidance article explains the legal
meaning of direct discrimination and the
necessary evidence to prove it. At p34 is
a summary of the legal definitions under
the old and new law. We will be
explaining the other definitions further in
future issues of UNIMAG.
Different treatment
Although the definition uses the words
‘less favourable treatment’, it is usually
easiest to spot direct discrimination if you
look for ‘different’ treatment.
Remember always, the test is ‘different’
treatment, not simply ‘unfair’ treatment.
The member may have been treated
extremely unfairly, but that was not
necessarily because s/he is black, gay, a
woman etc. Maybe the employer treats all
staff unfairly. That’s why you need to
keep asking yourself, ‘would the
employer have treated the member this
way if s/he was white, straight, a man
etc?’ The best evidence is if you can find
a ‘comparator’.
© Diversity Works Ltd
UNIMAG: Issue 8
Comparators
Direct discrimination involves the idea of
a comparison. Ideally the member can
find a real person who does not have the
same protected characteristic, who has
been treated differently (better) by the
employer in comparable circumstances.
This real person is called a ‘comparator’.
29
It is almost always easier to prove direct
discrimination if there is a real
comparator. Surprisingly, there very often
is a suitable comparator. Sometimes you
cannot find a comparator in an identical
position, but you can still find a more
general comparator.
For example, a Muslim employee is
For example, a manager discovers that
dismissed for sleeping on duty. He has a
two members of staff in her department
clean disciplinary record. There are no
are using the internet for personal reasons other examples of anyone sleeping on
during the day even though it is against
duty. However, recently a non-Muslim
the rules. The black employee is
employee left work early without
disciplined but the white employee is not. permission. He was only given a final
The black woman could claim direct race written warning, even though it is
discrimination and ask the tribunal to take arguably an equally serious offence.
note of how she was treated worse than
the white woman. In such a case, the
The best comparators have circumstances
white woman would be the ‘comparator’. as similar as possible to those of the
member. Otherwise it makes it easier for
It is not necessary for the member to have the employer to put forward an
a real comparator in order to claim direct apparently innocent explanation which
discrimination. For example, maybe the
has nothing to do with who is Muslim
black woman was the only person who
and who is not, or who is black and who
was caught looking up personal sites on
is white.
the internet. She could still say, ‘I bet I
would not have been formally disciplined Although other evidence can prove direct
if I was white’. It is just harder to prove.
discrimination, comparators are by far the
In that case, the member would be talking best evidence. You should not be put off
about a ‘hypothetical’ comparator, ie a
from looking for a comparator just
person who was the same as her in all
because the employers say they ‘don’t
respects, except that she was white, and
want to talk about other people’ or
who was treated differently (better) by
because it doesn’t feel ‘fair’ to the other
the employer in comparable
person. It is often the only way that
circumstances.
discrimination can be exposed.
© Diversity Works Ltd
UNIMAG: Issue 8
The ‘but for’ question
When you are thinking about direct
discrimination and comparative
treatment, the ‘but for’ test is usually very
helpful. Whenever a member raises
discrimination as a possibility, ask
yourself:
‘‘But for’ the fact that the member is
black / a woman / over 50 etc, would the
employer have treated him/her differently
(better)?’
30
The employer’s explanation
As already stated, the best evidence to
prove discrimination is where there is a
real comparator who has apparently been
treated better by the employer in
comparable circumstances. It then comes
down to whether the employer can
provide an innocent explanation why the
comparator was better treated.
Employers often say that it is not a true
comparison and the comparator’s
Or, in more normal language:
circumstances were different. For
‘If the member wasn’t black / a woman /
example, in the internet example used
over 50 etc, would the employer have
above, maybe the black employee has
promoted, transferred, disciplined,
already been warned verbally several
dismissed her?’
times about using the internet and maybe
this is the first time the white employee
This is a good question to ask yourself
was caught. Or maybe the employer was
even if the member does not directly raise only aware of the black employee using
discrimination with you. If a member
the internet and did not realise the white
complains to you about unfairness, it is
employee was also doing so.
always worth mentally asking yourself, ‘I
wonder whether the employer would have The employer’s explanation does not
treated the member that way if s/he was
need to be fair. It only needs to be an
of a different race / sex / age etc?’ This
explanation which has nothing to do with
will help you ask the member the right
who is black and who is white or any
questions to make sure you don’t
protected characteristic. It therefore only
overlook possible discrimination.
needs to be a believable explanation. An
example of this point was in the case of
Arhin v Enfield Primary Care Trust,
which we reported in UNIMAG, Issue 6.
© Diversity Works Ltd
UNIMAG: Issue 8
Other evidence proving direct
discrimination
Other useful evidence, especially in
combination, could be:
 unexplained unfair treatment: the
member has been treated
extremely unfairly and the
employer cannot explain the
reason for this. However, if the
employer puts forward a
believable non-discriminatory
explanation, even if it is not a nice
explanation, the member will not
win his/her case.


31
Perception
Under the Equality Act, it is unlawful to
treat the member less favourably
(differently) because s/he is perceived to
have a certain protected characteristic,
even if s/he does not in fact have that
characteristic.
For example, the member is refused a job
because s/he is thought to be older than
s/he is or because s/he is wrongly
perceived to be gay.
Under previous legislation,
discrimination because of wrong
racist or similar remarks: the
perception applied to some of the
problem with these is that there
characteristics, but not to all of them. The
are rarely witnesses so they can be reason the EA covers discrimination by
hard to prove. If s/he wants to
perception is because section 13 refers to
take matters further, it is very
less favourable treatment of B because of
important that the member reports ‘a protected characteristic’ as opposed to
any such remark at an early stage because of ‘B’s protected characteristic’.
and is consistent.
(‘B’ is the Equality Act’s shorthand for
the discriminated against person.)
poor equal opportunities practices
generally: this is rarely enough on In fact, this replicates the wording in the
its own to show that in a particular previous Employment Equality (Sexual
case, the member would have
Orientation) Regulations 2003, where an
been treated differently (better) if even more interesting point came up in
s/he did not have the relevant
the case of English v Thomas
protected characteristic.
Sanderson Ltd (see UNIMAG, Issue 2).
In that case, Mr English was harassed by
being called offensive names as if he was
gay even though everyone knew he was
not gay. This was still unlawful.
© Diversity Works Ltd
UNIMAG: Issue 8
Association
The wording of section 13 means it is
also unlawful to directly discriminate
against the member because of someone
else’s protected characteristic, eg because
a white woman has a black boyfriend or
because the member has Muslim friends.
Again, this was previously covered in
respect of some protected characteristics
but not all of them.
This issue came up under the previous
legislation in the well-publicised case of
(1) EBR Attridge Law (2) Law v
Coleman (see UNIMAG, Issue 5). Ms
Coleman was a legal secretary and she
claimed she was discriminated against
and harassed because she had a disabled
son. Whereas other secretaries were
allowed flexibility to look after their
children, she was described as lazy when
she needed time off to look after her
disabled son. At the time, the Disability
Discrimination Act 1995 did not cover
discrimination against someone because
of someone else’s disability. But the case
went to the European Court of Justice
and, as a result, the DDA had to be
reinterpreted to cover this situation.
Under the new wording of direct
discrimination in the Equality Act, this
problem will no longer arise.
The Coleman case isn’t as good as it
sounds. It doesn’t give parents of disabled
children any special rights to time off. It
simply says that they mustn’t be given
fewer rights than parents of non-disabled
children.
© Diversity Works Ltd
32
Is there a justification defence to
direct discrimination?
It is not possible for employers to justify
direct discrimination by saying they had a
good reason for doing it.
For example, employers cannot say they
did not recruit a gay bartender because
they were afraid that the customers in
their area would attack him, or that they
didn’t appoint a black receptionist
because they would lose customers.
In Amnesty International v Ahmed (see
UNIMAG, Issue 4), Amnesty did not
promote Ms Ahmed to the position of
researcher for Sudan because of her
Sudanese ethnic origin. They were afraid
that she would not be seen by the
Sudanese as impartial (having come from
the North of the country), and her safety
would also be at risk. This was found to
be direct discrimination. The EAT said:
‘A respondent who has treated a claimant
less favourably on the grounds of his of
her race cannot escape liability because
he had a benign motive.’
UNIMAG: Issue 8
justifying direct age discrimination
The only exception to the rule that direct
discrimination cannot be justified is for
direct age discrimination, where
employers do have a potential
justification defence. The wording is the
same as the defence to indirect
discrimination, ie the employers must
prove their treatment has a legitimate aim
and that they are adopting a proportionate
means of achieving that aim. In cases of
direct age discrimination, it is possible
that the defence is operated a little more
strictly than for indirect discrimination
cases, as it seems employers may have to
show some form of public policy
objective in their justification.
33
occupational requirements
Although there is no justification defence
to direct discrimination, apart from to
direct age discrimination, there are
exceptional circumstances in which an
employer may say it is an ‘occupational
requirement’ to have a particular
protected characteristic when choosing
whether to recruit, promote, transfer,
train, grant a benefit or dismiss a worker.
This is only where, having regard to the
nature or context of the work, the
application of the occupational
requirement is a proportionate means of
achieving a legitimate aim.
This exception is intended to be applied
extremely rarely. It is set out in Schedule
Employers often rely on stereotypes when 9 of the Equality Act and replaces the
directly discriminating because of age.
GOQ (genuine occupational
They need to provide evidence and not
qualification) and GOR (genuine
just make ageist assumptions. An
occupational requirement) exceptions in
interesting example was a case reported
the previous legislation.
in the last issue of UNIMAG concerning
retirement of assistant referees at the age There are some specific occupational
of 48: Martin and ors v Professional
requirement exceptions for employment
by religious organisations etc but these
Game Match Officials Ltd.
are too detailed to go into here.
© Diversity Works Ltd
UNIMAG: Issue 8
34
TABLE: OLD AND NEW DEFINITIONS OF DISCRIMINATION
This table gives a brief comparison of the legal definitions of discrimination under the
Equality Act and the previous legislation. We will be writing longer features on the
various definitions in future issues. See p28 of this issue for the law on direct
discrimination. In the last issue of UNIMAG, we compared all the definitions
applicable to disability discrimination.
EQUALITY ACT
Direct discrimination
Section 13
OLD LEGISLATION
Direct discrimination
Less favourable treatment because of a
protected characteristic
Same concept though differently worded:
Less favourable treatment on grounds of
[the protected characteristic].
Includes discrimination by association or
perception
Discrimination by association and
perception not covered in respect of all
the characteristics
Applies to age, disability, gender
reassignment, being married or a civil
partner, race (colour or nationality or
ethnic or national origins), religion or
belief, sex, sexual orientation.
Same scope
There are separate rules on pregnancy and
maternity discrimination.
Indirect discrimination
Section 19




Employer applies a provision,
criterion or practice
Which puts or would put the
member at a particular
disadvantage
And which puts or would put
others sharing the members
protected characteristic at a
particular disadvantage
And the employer cannot show it
is a proportionate means of
achieving a legitimate aim
Applies to age, disability, gender
reassignment, marriage and civil
© Diversity Works Ltd
Indirect discrimination
Identical concept except that only in
the case of indirect race
discrimination did it cover where a
provision, criterion or practice ‘would
put’ the member at a particular
disadvantage as well as ‘puts’.
There was previously a different and
more restricted definition for indirect
discrimination based on colour or
nationality.
Did not previously apply to disability
discrimination.
UNIMAG: Issue 8
35
partnership, race (colour or nationality or
ethnic or national origins), religion or
belief, sex, sexual orientation.
Victimisation
Section 27
The employer subjects the member to a
detriment because the member has done a
‘protected act’ or because the employer
believes s/he has done or may do a
‘protected act’.
Identical concept though slightly
different wording, which sometimes
caused legal difficulties.
A ‘protected act’ includes
 Bringing a discrimination claim in
an employment tribunal
 Complaining about discrimination
in a grievance
 Giving evidence for someone else
in a discrimination complaint
 Making an allegation that the
employer has contravened the
Equality Act
It is not unlawful if the member made a
false allegation in bad faith.
Harassment
Section 26
Unwanted conduct related to a protected
characteristic or unwanted conduct of a
sexual nature which has the purpose or
effect of violating the member’s dignity
or creating an intimidating, hostile,
degrading, humiliating or offensive
environment for the member.
Applies to age, disability, gender
reassignment, race (colour or nationality
or ethnic or national origins), religion or
belief, sex, sexual orientation.
Also, less favourable treatment because
the member rejected or submitted to
unwanted conduct of a sexual nature or
related to gender reassignment or sex.
© Diversity Works Ltd
Same concept except that previously the
unwanted conduct had to be ‘on grounds
of’ rather than ‘related to’ the protected
characteristic, except in the case of sex
and disability.
‘On grounds of’ covers fewer situations
than ‘related to’.
UNIMAG: Issue 8
36
3rd party harassment
Section 40
An employer is responsible for harassing
the member where the employer knows
the member has been harassed at least
twice during his/her employment by third
parties and has not taken reasonably
practicable preventative steps to stop it
happening on the third occasion.
Previously applied only to harassment
related to sex.
Failure to make reasonable
adjustments
Section 20
Applies only to disability: Where a
provision, criterion or practice or feature
of the premises puts a disabled worker at
a disadvantage compared with a nondisabled worker, the employer should
make such adjustments as are reasonable
to remove that disadvantage.
Same concept though slightly different
wording. Previous legislation contained
examples of reasonable adjustments, but
these are now only in the Employment
Code (at para 6.33). The legislation also
previously contained a list of factors
which might be taken into account by
tribunals when deciding whether it was
reasonable for an employer to make an
adjustment. Again these are now only in
the Code (at para 6.28)
Discrimination arising from disability
Section 15
Similar to previous concept of disabilityrelated discrimination under the DDA as
understood prior to the case of LB
Lewisham v Malcolm.
© Diversity Works Ltd
UNIMAG: Issue 8
37
Resources and links
In this section, we will let you know of any interesting new guides or research we
have come across in the last quarter. We will also list any existing UNISON guides
(of which we are aware) on topics covered in the issue. For ease of reference, in each
issue we will repeat the listing of key websites, books and guides.
Websites
UNISON
UNISON’s Hidden Workforce Project
TUC
Equality and Human Rights
Commission
ACAS
OPSI
Full text of all UK statutes and
regulations since 1988 plus draft
regulations.
www.unison.org.uk
unison.org.uk/hiddenworkforce
www.tuc.org.uk
www.equalityhumanrights.com
www.acas.org.uk
www.opsi.gov.uk/legislation
UNISON Guides
Many advisory briefings and negotiating guides can be downloaded from the
UNISON website or are otherwise available from Mabledon Place or UNISONDirect
(telephone 0800 5979750).
LATEST EDITION
Identifying Legal Cases in the
Workplace: Checklists for
Interviewing Members. Edition 4
(December 2009).
Checklists to help you consider the
relevant law in cases of dismissal,
redundancy, discrimination, flexible
working etc. The latest edition of this
popular guide can be ordered through
Keith Carpenter in Learning and
Organising Services at Mabledon Place.
Telephone 020 7288 2366 and quote
Code 172. Edition 5, which incorporates
the Equality Act 2010, will be available
in a few months.
© Diversity Works Ltd
UNIMAG: Issue 8
38
Guides by Tamara Lewis
Proving disability and reasonable
adjustments: A worker’s guide to
evidence under the DDA. Detailed
advice on proving different impairments
fall within the definition of disability,
plus ideas for reasonable adjustments,
including a gazette of 26 different
impairments. Updated (2009) but pre
Equality Act version on EHRC website at
www.equalityhumanrights.com/upl
oaded_files/dda_workers_guide_re
asonable_adjustments.doc
An employer’s guide to reasonable
adjustments under the DDA.
Useful negotiating tool which can
encourage employers to understand what
is required. Hard copies bought widely by
local authorities. Updated (2009) but pre
Equality Act version on EHRC website at
www.equalityhumanrights.com/upl
oaded_files/dda_employers_guide
_reasonable_adjustments.doc
Claimant’s companion. Guide for reps
to hand out to members explaining what
is involved in running a tribunal case but it is not a guide to do-it-yourself
cases. Hard copies available from Central
London Law Centre. Electronic version
available at
www.londonlawcentre.org.uk/publi
cations.html
Redundancy discrimination: Law and
evidence for tribunal cases.
Available at
www.equalityhumanrights.com/upl
oaded_files/redundancy_discrimin
ation_law_and_practice.doc
© Diversity Works Ltd
Facing disciplinary action: a guide for
employees and their representatives.
Primarily written for non-unionised
workers, so keep that in mind, especially
regarding procedures. However, you may
find useful the sections about relevant
evidence, reasons not to avoid going to
disciplinary hearings, factors affecting the
level of sanction etc. Hard copies
available from Central London Law
Centre. Electronic version available at
www.londonlawcentre.org.uk/publi
cations.html
Using the Data Protection Act and
Freedom of Information Act in
Employment Discrimination cases.
Although written for discrimination
cases, the principles can be used in any
kind of employment case. At
www.equalityhumanrights.com/upl
oaded_files/dpa_and_foi_in_emplo
yment_discrim_cases.doc
Identifying discrimination in
employment: A diagnostic and referral
guide for busy advisers. Simple
checklist guide aimed at voluntary sector
advisers, but equally useful for local
UNISON reps.
Available at
www.equalityhumanrights.com/upl
oaded_files/indentifyingdiscrimine
mplyment.pdf
UNIMAG: Issue 8
39
Books
The Law and You.
UNISON’s in-house law book. Edition 4,
April 2009. It can be ordered via
stockorders@unison.co.uk – stock
number 1895, ISBN 978 0 904198 20 1.
Employment Law: An Advisers
Handbook. By Tamara Lewis.
Ed 8, September 2009. Published Legal
Action Group. Tel: 0207 833 2931.
Practical and understandable guide to law,
evidence, compensation, and tribunal
procedure from the worker's viewpoint.
Extensive coverage of unfair dismissal,
redundancy, discrimination, and terms and
conditions. Updated in new editions every
2 years.
© Diversity Works Ltd
Butterworths Employment Law
Handbook. Edited by Peter Wallington.
All relevant Statutes, Regulations and
Codes fully reproduced. No commentary.
The book is regularly reissued with latest
Statutes. This is useful because
legislation is published in its latest
amended form, whereas Statutes and
Regulations on the OPSI website are
reproduced only as originally passed.
UNIMAG: Issue 8
40
New guides and reports
Stress at Work
In Sept 2010, a new guide appeared,
highlighting the legal risks for employers
if they ignore their health and safety
responsibilities in identifying and
preventing stress at work. The guide
‘Work-related stress: what the law says’,
is produced by the Chartered Institute of
Personnel and Development (CIPD), with
support from the Health and Safety
Executive (HSE), ACAS, and the crossgovernment Health, Work and Wellbeing
programme.
Written by the head of safety, health and
wellbeing at Leeds Metropolitan
University, it provides a summary of
what the law says about work-related
stress and associated areas such as
equality law. It describes a case at West
Dorset General Hospitals NHS Trust, and
recent cases where employers have faced
significant compensation payouts for
failing properly to identify and prevent
stress.
As the CIPD’s senior public policy
adviser says: ‘Employers that fail to
manage stress effectively risk losing key
staff through high absence levels and
employee turnover. They will also suffer
from low staff morale and risk higher
levels of conflict and accidents in the
workplace. In addition, they potentially
face costly personal injury claims, as well
as damage to their employer brand.’
© Diversity Works Ltd
It is very difficult to win civil claims for
stress and you should not be misled by
the cases reported in the guide.
Nevertheless, elements of this guide may
be useful to quote to employers. The
guide can be downloaded via
www.cipd.co.uk/subjects/health/str
ess/_work-related-stress-what-lawsays.htm
or directly at
www.cipd.co.uk/NR/rdonlyres/1B50
4994-F40F-4801-B93D8FA4DE73E1FD/0/5233Stress_and_
Law_guide.pdf
Mediation: A new guide for trade
union representatives from ACAS
and TUC
Mediation, like conciliation, is where an
impartial third party, the mediator, helps
two or more people in dispute to attempt
to reach an agreement. Any agreement
comes from those in dispute, not from the
mediator. The mediator is not there to
judge whether one person is right and the
other wrong, nor to tell those involved in
the mediation what they should do. The
mediator is in charge of the process of
seeking to resolve the problem but not the
outcome.
In some organisations mediation is
written into formal discipline and
grievance procedures as an optional
stage. The guide includes comments on
such use of mediation by UNISON
representatives at East Lancashire NHS
Primary Care Trust and University of
Central Lancashire.
UNIMAG: Issue 8
Mediation is particularly well suited to
situations where there is: relationship
breakdown; personality clashes; bullying
and harassment and perceived
discrimination issues (although each
situation needs to be judged on a case by
case basis as cases of bullying and
harassment, and discrimination, may need
to be dealt with by more formal
procedures); and when managers are not
well placed to deal with an issue because
they may be perceived as biased; in
disputes involving two union members
from the same union.
Contents of the Guide
What is mediation?
What does mediation seek to achieve?
When can mediation be used?
What are the benefits of mediation?
How does mediation work in practice?
The link to discipline and grievance
procedures
The role of representatives in mediation
Ensuring that employers inform and
consult with trade unions
Supporting members during mediation
when requested
Can trade union representatives be
mediators?
Trade union mediation checklist for uide
The guide is available at
www.acas.org.uk/CHttpHandler.as
hx?id=2879&p=0
or at
www.acas.org.uk/index.aspx?articl
eid=1680 15
© Diversity Works Ltd
41
Pre-employment health screening
(PEHS): NHS Plus report, Sept.
2010
A psychiatrist who examined Harold
Shipman considered him fit to work as a
GP despite a history of pethidine abuse
and a previous conviction for dishonestly
obtaining controlled drugs. He went on to
murder over 200 of his patients.
According to a new report from NHS
Plus, although extreme, this was an
illustration of the importance of
monitoring the behaviour and health of
employees in the NHS and of
engendering a culture where genuine
concerns about changes in behaviour can
be reported, investigated and acted upon
as necessary.
NHS Plus has studied pre-employment
health screening (PEHS) in the NHS in
England, including the legislation and
national guidance. It finds little
agreement or evidence on why it is done
or that techniques used are effective in
achieving the stated aim. It also raises
doubts whether current practice is
compliant with data protection
legislation. In 2009 the Department of
Health stated that:
‘Pre-employment health screening
should be reduced to essential cases
only, and undertaken through
online questionnaires where
possible, to reduce the burden on
occupational health staff.’
Current practice
Successful job applicants in the NHS are
routinely required to undergo preemployment health screening before their
appointment is confirmed.
UNIMAG: Issue 8
The method varies between:
 completion of a health
questionnaire by the applicant or
by the applicant’s GP
 a request for a medical report
from the applicant’s GP
 a face-to-face or telephone
interview
 a clinical examination by an
Occupational Health (OH)
professional.
When the process is carried out before an
existing employee changes jobs or duties
within the same organisation, it may be
called a pre-placement health assessment.
Employers and employees tend to view
pre-employment health screening (PEHS)
more as a management tool, whereas
occupational health (OH) professionals
view it more as a tool to identify
individuals who may require adaptations
to the workplace.
Most NHS trusts use OH specialists to
assess the confidential medical
information that an individual may
provide as part of PEHS. Their
recommendation may range from ‘not fit
for work’ to ‘fit for work with/without
caveats’, such as adjustments to hours or
duties.
42
All NHS OH departments undertake
some form of PEHS. Most use a
questionnaire that lists a variety of
medical conditions and symptoms and the
individual is asked if they have a history
of these and, if so, to provide details.
Others ask a few generic questions about
the presence of health problems that
might influence fitness to work or the risk
of illness through work. The responses
are supposed to be used by OH to
facilitate the applicant’s ability to work
by informing the need for work
adaptations or restrictions rather than
rejection.
However, some key evidence is quoted in
the report from a formal enquiry by the
former Disability Rights Commission
(the statutory body now part of the
Equality and Human Rights Commission)
into the barriers faced by disabled people
in entering the nursing, social work and
teaching professions:
‘the investigation found that public
sector employers of nurses, teachers
and social workers routinely use
lengthy, over-inclusive and
intrusive pre-employment health
questionnaires. These are costly,
not useful and potentially
discriminatory because they focus
on a person’s diagnosis and not on
the requirements of a particular
job.’
Equality Act restrictions
Section 60 of the new Equality Act 2010
outlaws pre-employment health enquiries
before a conditional job offer is made,
except in a few specific circumstances.
Employers must not ask about a job
applicant’s heath or disability until that
person has been offered a job (which can
be on a conditional basis). However,
there are the following exceptions where
© Diversity Works Ltd
UNIMAG: Issue 8
the purpose of the enquiry is:
 to find out whether the job
applicant needs adjustments to the
assessment process
 to monitor diversity in job
applications
 to support positive action in
employment for disabled people
 to enable an employer to identify
suitable cans where there is a
genuine occupational requirement
for the person to be disabled
 to find out whether the applicant
would be able to undertake a
function which is intrinsic to the
job, with reasonable adjustments
in place as required.
This last category is a little worrying
as its scope could be quite wide.
Employers can still make a job offer
conditional on a health check. But the
advantage is that it then makes it very
obvious why an offer has been
withdrawn and job applicant rejected.
Disabled job applicants in particular,
will have a much better chance of
proving they have been unjustifiably
rejected because of their disability as
opposed to some unconnected reason.
© Diversity Works Ltd
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The EHRC has an enforcement role, so it
can – for example - carry out an
investigation if a large employer
consistently ignores the new rules. Also,
if an employer makes enquiries which are
not allowed and later rejects a job
applicant, this helps the person win a
discrimination claim because it shifts the
burden of proof onto the employer to
prove it did not reject the person for
discriminatory reasons.
To see the report and its
recommendations:
‘A review of pre-employment health
screening of NHS staff’ is published by
TSO (The Stationery Office),
www.tsoshop.co.uk or available as a pdf
online at
www.nhsplus.nhs.uk/public/image
s/library/files/Preemployment_for_web_final_10.6.10
.pdf