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January 2010 Updates

Dress codes and sex discrimination

In Dansie v Metropolitan Police, the Employment Appeal Tribunal has held that it is not harassment under the Sex Discrimination Act to require a male employee to cut his shoulder length hair when, in the same situation, a woman would not be required to do the same. The Employment Appeal Tribunal confirmed that the correct legal test is whether, applying contemporary standards and conventions (as well as the specific needs of the profession in question), the employer's dress code as a whole is asking its employees to display an equivalent level of smartness between the sexes.

Change in whistleblowing cases

The Department for Business, Innovation and Skills has outlined its plans to give Employment Tribunals the authority to pass on whistleblowing allegations arising during claims to a prescribed regulator. As a result, from the 6th April 2010, the following changes will occur:

  • A "tick box" will be present on the Tribunal claim form (known as an ET1), inviting claimants to indicate whether their claim includes allegations of a protected disclosure (i.e. a whistleblowing claim), and if so, whether they wish the Tribunal to refer the allegations on.
  • A ticked box will indicate to the Tribunal that they must identify the protected disclosure and pass the information on to one or more of the relevant authorities (e.g. HMRC) on a prescribed list, which can be found on page 21 of the Government Response to Employment tribunal claims and the Public Interest Disclosure Act (
  • The Tribunal will contact all of the parties to the Tribunal proceedings in writing to confirm that the relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed.

An obvious concern from an employer's point of view as a result of these changes is that this new procedure could be used by claimants as a means of putting additional pressure on their current or former employer to settle a claim.

Risk assessments for pregnant workers

There is no longer a general obligation for an employer to carry out a risk assessment for a pregnant worker. In O'Neill v Buckinghamshire County Council, the Employment Appeal Tribunal held that, for an employer to fall under the duty of conducting a risk assessment for a pregnant worker, the following preconditions must be met:

  • The employee must notify her employer in writing that she is pregnant.
  • The work the employee does must be of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother and/or her unborn child.
  • That risk must arise from processes, working conditions or physical, chemical or biological agents in the workplace.

Notice periods and age discrimination

In Kucukdeveci v Swedex GmbH & Co, the European Court of Justice has held that a German law providing that employment before the age of 25 is disregarded when calculating service-related notice periods breached the EU Equal Treatment Directive. This decision could mean that the way that the basic awards for unfair dismissal and redundancy are calculated under English law (which are based on age during each year of service), is also unlawfully age discriminatory. Even if our Government can show that the manner of calculation achieves a legitimate aim (such as accommodating the greater flexibility of younger workers or improving protection for older workers, for example), it will still need to demonstrate that it is a proportionate means of doing so for it to be viewed as lawful.


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SRA number 404293