Employment Eye
Wednesday 17 November 2010
The Equality Act 2010
An age-old problem?
Val Lockhart
CONTENTS
• Reprise Age PC, relevant prohibited acts,
obligations at recruitment, liability and
enforcement (5 mins)
• Sideburn v Aberchem Ltd – the likely claim and
defence (5 mins)
• Some relevant cases (10 mins)
• Myths and (my)reality of the Equality Act (10)
• Avoiding Sideburn v Aberchem Ltd - what they
did wrong, and how to get it right (15)
Age PC
• ‘Age’ defined by ref to age group – when
people fall within the same age group, they
share the PC of ‘age’
• Age groups can be wide or narrow (‘people
under 50’, people in their mid-40s) or relative
(‘people older than we are’, ‘middle-aged’) or
contextual (‘youthful’, ‘the grey workforce’)
• All ages protected
Direct and Harassment
• Direct – a person A discriminates against another B if
– Because of ‘age’
– W treats B less favourably than A treats (or would treat) others
– Except where
• direct age discrimination can be justified
• Occupational Requirement
• Other express permitted exception
• Harassment
Unwanted conduct related to age
Which has the purpose or effect of either
– Violating a person’s dignity or
– Creating an intimidating, hostile, degrading, humiliating or offensive
environment
Obligation to job applicants and
employees
• Employers must not discriminate against or victimise job applicants in:
– The arrangements they make for deciding who should be offered employment
– In the terms on which they offer employment, or
– By not offering employment to the applicant
•
‘Arrangements’ – policies, criteria, practices, tools used in the R&S
process, decision processes, scores matrices, adverts, application
systems, interviews
• Unlawful for employers (or agents such as OHS providers) to ask any
job applicant about disability or health prior to (conditional) job offer
– 6 exceptions including reasonable adjustments during recruitment process,
monitoring, ‘function intrinsic to the job’
– No standalone claim, but can be used to draw inference re BOP
– (Designed to ensure that disabled applicants assessed purely on merit, but
applies to all)
• Employers (or agents) must not harass job applicants
Liability
– Employers liable for discrimination/ harassment /
victimisation carried out by their employees or agents (eg:
agencies, or OHS providers)
• Whether or not they know about or approve of the acts
• Unless took all reasonable steps to prevent (not just ‘practicable’)
– Employee or agent committing discriminatory act
personally liable
•
•
•
•
In cases where employer has reasonable steps defence
In cases where employer also held liable
Even if employee not know act unlawful (new), unless
Reasonably relies on employer saying is lawful
– Person (including employee) knowingly aiding a
discriminatory act personally liable unless reasonably
relies on employer saying is lawful
Enforcement
• ET jurisdictions – Part 9 (Work), Part 10 (relationships ended,
instructing and aiding), OPS declarations
• (draft) Code of Practice express reference to internal dispute
resolution ‘to avoid having recourse to an ET’
• Procedure for obtaining information
• Burden of Proof
– C must prove facts from which ET could decide, or draw an inference
that, an unlawful act has occurred
– ET hears all the facts
– if prima facie case then burden shifts to R
– R to prove on balance of probabilities, that did not act unlawfully
– if explanation is inadequate or unsatisfactory, ET must find act
unlawful
Remedies
• Make a declaration as to the rights of the parties
• Award compensation to C for any loss suffered
• Make an ‘appropriate’ recommendation – that R takes specified steps to
obviate or reduce the adverse effect of any matter relating to the
proceedings on C and / or others who may be affected
– Often focus on processes
– Not contractually binding
– Failure to comply can result in
• Increased compensation awarded to C, or order for compensation if none
awarded earlier)
• Used in evidence against R in subsequent cases
• Award interest on compensation
• Award expenses if appropriate (failure to comply, ‘vexatious, abusive,
disruptive or otherwise unreasonable’ action in bringing proceedings, or
that bringing or conducting the case was misconceived )
Sideburn v Aberchem – the facts?
–
–
–
–
–
–
–
–
–
–
–
–
Job advert uses age-related terminology ‘youthful enthusiasm’
Remaining criteria are vague and open to subjectivity
Interviewer’s early responses to Mr S abrupt and unwarranted
Despite Mr S’s attempts to address questions, interviewer distracted and
uninterested
Not asked for his CV, so no level playing field on career background,
experience
90% of questioning relating to stereotypical assumptions of ‘older people’
Blatant and continuous reference and direct questions relating to Mr S’s
age
Ignoring Mr S’s attempts to address relevant job related matters
Unlawful questions relating to Mr S’s health
Challenging his answers to the health questions
Interviewer comparing Mr S with her own grandfather, in pejorative terms
Refusing to pick up on Mr S’s clear offence at the end of the interview
The claim?
Direct discrimination
By treating Mr S less favourably because of age in
• The arrangements they make for deciding who should be offered
the Sales Rep job, and
• By not offering Mr S the job
Harassment
By subjecting Mr S to unwanted conduct related to age
With the purpose or effect of either
• Violating his dignity or
• Creating an intimidating, hostile, degrading, humiliating or
offensive environment for him
Who’s the Respondent?
Aberchem Ltd
Alison Lumgair, personally?
The defence
•
•
•
•
•
•
•
BOP – prima facie case made out?
Prove no less fav treatment because
of age?
Show there was, but that treatment
can be objectively justified?
•
•
Was the conduct which was
unwanted and age-related?
Show that the conduct of the
interview did not have the purpose of
violating etc?
Show that the conduct ought not
reasonably be considered as having
the effect of violating etc?
•
No liability because took all
reasonable steps to prevent
employee’s conduct
•
•
•
•
BOP – prima facie case made out?
Prove no less fav treatment because
of age?
Show there was, but that treatment
can be objectively justified?
Was the conduct which was
unwanted and age-related?
Show that the conduct of the
interview did not have the purpose of
violating etc?
Show that the conduct ought not
reasonably be considered as having
the effect of violating etc?
No liability as carried out tasks in
normal course employment / emplr
advised conduct was lawful
Compensation
•
C put in the position s/he would have been in, but for the unlawful conduct (MOD v
Cannock, 1994 ICR 918)
•
•
(In cases of unintended indirect discrimination, only where another remedy is not
more appropriate)
Awards against individuals
• Financial loss
– Past loss, from date of act
– Future loss, expected to be incurred following hearing
• Injury to feelings - Vento guidance (Vento v CC West Yorkshire No 2 2003 ICR 318)
– Top band, most serious cases, lengthy campaign of harassment (up to £30k)
– Middle band, serious cases not falling into highest band (up to £18k)
– Lower band less serious cases eg: one-off or isolated occurrence (up to £6k)
– Less than £500 to be avoided
– Aggravated and exemplary damages (avoiding overlap between
awards)
• (Award for failure to notify (6-month retiral notification letter) – up to 8
weeks pay)
Costs of getting it wrong?
Costs relating to
– the pre-hearing procedures
– preparation
– hearing itself
– legal advice and representation
– reputation damage
– workforce dissatisfaction costs
– loss of knowledge and skills
– confidence of line managers
– supporting employees personally sisted as R, and finally
– the award
Some relevant cases
McCoy v James McGregor & Sons Ltd – IT(NI)
19.12.07 (237/07)
Canadian Imperial Bank of Commerce v Beck – EAT
24.8.10
Chappell v Vital Resources Ltd – ET Case no
1301251/07
Lyons v The Leeds Teaching Hospitals NHS Trust – ET
Case no 1803471/07
Ferguson v Anglia Water Services – ET Case
1500997/07
MAIN MYTHS
•
•
•
•
•
•
•
Complicated – hundreds of things
you can’t do
Managers can’t just make a decision
anymore and get on with things
Lose the right to manage – can’t ask
legitimate questions, hands tied
behind managers’ backs
THEMES
• Managers can’t manage
anymore
Encourages grievances, complaints
and claims
Serial litigants and ambulance
chasers
• Encourages complaints and
litigation
Increases costs to businesses –
systems, admin, awards
All about being PC and undermines
business performance
• Harms business
Pick of the Pops
‘The Equality Act is a dangerous joke’
…The likely result is it will poison relationships between colleagues and employer-employee. It
urges us all to view ourselves as victims in need of state intervention to police our working
lives BigBrotherWatch
Invisible Man is a woman's best friend
…First, women won the right to the same pay as a man doing the same job. Then came
entitlement to equal pay for different work done by a man if the work was of equal value.
Now, under the new Equality Act, women will be entitled to claim the same pay as someone
who does not exist
www.dailymail.co.uk
Bannatyne: 'Equality Act will damage honest employers'
…Then there's the 'Third Party Harassment' section, which is beyond a joke. In fact, it's enough to
give an employer a sense of humour failure. It means that any member of staff can sue their
employer if they take offence to office banter, even if it has absolutely nothing to do with
them. Think how many times a day you could sue your employer if you were so minded.
The Telegraph
Purpose of Equality Act?
• ‘Consolidates, harmonises and clarifies existing
piecemeal anti-discriminatory primary and secondary
legislation’
• The European dimension – social justice, tripartite
social partners approach
• Atlee, 1946 – The NHS ‘not just to provide services to
the sick, but to make a healthy nation’
• Not just about combating discrimination, but also to
promote healthy (fair)workplaces
• Fits with HR values and approaches over the decades
• Compliance (rights and obligations) V good PM practice
(relationships and expectations)
HR APPROACHES…
• The ‘psychological contract’ – from Schein to
Guest
• Intrinsic performance – from Kohn to Brown
• Fair treatment – from Equal Opportunities to
Diversity
• Employee relations – from Hawthorne to
Macleod
• Stereotyping -> prejudice –> discrimination from
controlling behaviour to shaping values?
• CSR as part of employer branding
What’s good about the Equality Act?
The 3 Themes again!
– Support enforcement of rights and obligations (more
streamlined and consistent)
– In a way which reflects employers’ needs and
circumstances (provides flexibility to manage treatment)
• All comes down to OJ
• If is handled in appropriate way (management style)
– Encourages practices which support change within
workplaces – cultural change and change in management
practice
•
•
•
•
•
‘because of’
Burden of proof
All reasonable steps
Liability for the acts of others
(ETs’ power re recommendations)
Inhibitors
• Inconsistent management
styles based on attitudes of
individual managers
• Poor trust levels
• Reactive decision-making
• Poor or opaque
communication
• Low levels of advocacy
• Command and control cultures
• Conflict within teams
Drivers
• Value statements and policies
enforced consistently
• Believing manager
• Feeling informed about what
is happening and why
• Freedom (encouragement?) to
voice ideas (and feel listened
to)
• Participative and consultative
cultures
• Workers feel treated with
respect, problems dealt with
Sideburn v Aberchem – the facts?
–
–
–
–
–
–
–
–
–
–
–
–
Job advert uses age-related terminology ‘youthful enthusiasm’
Remaining criteria are vague and open to subjectivity
Interviewer’s early responses to Mr S abrupt and unwarranted
Despite Mr S’s attempts to address questions, interviewer distracted and
uninterested
Not asked for his CV, so no level playing field on career background,
experience
90% of questioning relating to stereotypical assumptions of ‘older people’
Blatant and continuous reference and direct questions relating to Mr S’s
age
Ignoring Mr S’s attempts to address relevant job related matters
Unlawful questions relating to Mr S’s health
Challenging his answers to the health questions
Interviewer comparing Mr S with her own grandfather, in pejorative terms
Refusing to pick up on Mr S’s clear offence at the end of the interview
EHRC (draft) Code of Practice – Part 2
• Ch 16 – Avoiding discrimination in recruitment
• (Ch 17 – Avoiding discrimination in
employment)
• Ch 18 – Equality policies and practice in the
workplace
• (Ch 19 – Termination of employment)
Chapter 16 – avoiding discrimination in
recruitment (1)
• Defining the job
– accurate, sufficient and objectively justifiable job descriptions
and person specs (NB: importance of language)
– Health or fitness requirements (and other PCP) objectively
justifiable
• Job adverts accurate and avoid suggestion of or intention to
discriminate (or OR or +ve action)
• Standardised, objective application process, with minimal
personal information for shortlisting
• Standardised shortlisting process using more than one
person, objective marking system, using only relevant jobrelated information
Chapter 16 – avoiding discrimination in
recruitment (2)
• Selection, assessment and interviewing
– processes which avoid stereotypical assumptions or prejudice
– Objective and fair processes which treat applicants equitably
– Records retained which track decision processes and outcomes
• Selection tests and assessment centre tools to be well-designed, related
only to the job in question, applied to all candidates (bar H&S or RA) and
objectively justifiable
• Interviews most vulnerable to stereotyping and discriminatory judgements
–
–
–
–
Interviewer awareness
Objective scoring method
Questions solely job-related
Avoid questions related to PCs (unless OJ)
• References, eligibility to work in UK, health issues and other personal
issues addressed on conditional job offer
• Feedback to shortlisted, unsuccessful candidates
EHRC COP – Part 2
• Ch 17 Avoiding discrimination in Employment
Avoiding disputes and conflicts (Ch 17 CoP)
•
•
•
•
•
Embed culture of dignity and respect within workplace
Action to resolve workplace disputes and conflict at early stage
Facilitate dialogue and communication
Processes for dealing with grievances
Intervene to prevent discrimination / take action on identifying it
• Ch 18 Equality Policies in Practice
Planning and implementing an equality policy
•
•
•
•
•
Contents
Promotion and communication
Responsibilities
Training
Monitoring and reviewing
Other Guidance
• Avoiding liability for harassment (Ch 10, Part 1, EHRC CoP)
– Have a policy on harassment
– Notify employees, agents and third parties that harassment is unlawful and
will not be tolerated
– Include terms in all contracts requiring adherence with policy
– Encourage employees to report incidents
– Take action on every complaint
• ACAS Guidance – Age in the Workplace - ‘What to do if someone
complains’
–
–
–
–
–
Formal and informal routes
Find out what happened
ADR
Taking steps if employer finds was unlawful discrimination
Taking steps if find there hasn’t been discrimination
HOW ABERCHEM MIGHT HAVE
AVOIDED CLAIM
• Properly planned and implemented Equality Policy
• Basic job analysis identifying tasks and selection criteria
• Standardised application and interview processes with jobrelated questions by competent personnel
• Good records of process, decision-making and outcomes
• Candid and sensitive feedback to the candidate
• Clear and well communicated Harassment Policy
• Examples of how diversity / fairness is managed positively
within company
• Providing a forum to hear his concerns?
• Demonstrable measures to show how Alison Lumgair acted
outwith the course of her employment
CONCLUSIONS
• Equality Act endorses range of progressive HR
practices – demands nothing new
• CoP consistent with existing good practice
• Impact on 3 levels
• Outcomes – defence, cost avoidance,
psychological contract gains
References and contact details
EHRC (Draft) Code of Practice on Employment
http://www.equalityhumanrights.com/uploaded_files/EqualityAct/
employment_code_05.10.10.pdf
ACAS Employer’s Guide – Age in the Workplace
http://www.acas.org.uk/CHttpHandler.ashx?id=588&p=0
Government Equalities Office Guidance
http://www.equalities.gov.uk/equality_act_2010.aspx
CIPD Diversity Guidance
http://www.cipd.co.uk/subjects/dvsequl/general/divover.htm
Val Lockhart odia@subsea7.com or tel 01224 526431