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April 2010 Updates

Protected disclosures under the whistleblower legislation

The Employment Appeal Tribunal has handed down its judgment in Goode v Marks & Spencer. An employee who expressed his opinion about his employer's proposal to change a discretionary enhanced redundancy scheme (which had been consulted on) did not make a qualifying or protected disclosure under the whistleblower legislation. Amongst other things, the employee had complained to his line manager, contacted The Times newspaper and completed a staff survey about the proposal. He sought to argue that these were qualifying and protected disclosures, which he was dismissed as a result of (rendering his dismissal automatically unfair). The Employment Appeal Tribunal looked at the information that the employee was seeking to rely upon and concluded that it wasn?t enough to give the employee a reasonable belief that his employer was likely to breach a legal obligation in proposing to change its scheme.

The Equality Act

The Equality Act 2010 received Royal Assent in April. The majority of its provisions will come into force in October 2010 but some of them won?t actually become "live" until next year to allow organisations across the public and private sectors sufficient time to prepare.

A key part of the Act is the harmonisation and extension of discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships. Disability related discrimination will be replaced with a ban on discriminating against a disabled person by treating them less favourably where that treatment is "not a proportionate means of achieving a legitimate aim".

Another new provision in the Act prevents employers from asking job applicants questions about their health and whether they have a disability, other than in specific circumstances. So, for example, it will still be okay to ask the applicant whether or not they?ll be able to carry out a duty that is fundamental to the role they?re applying for. Most importantly of all, it will be fine to screen an applicant?s health once you have made a job offer to them.

The ban on discrimination based on perception is to be extended. This will protect employees who experience discrimination because they are wrongly thought to have one (or more) of the characteristics protected by the discrimination legislation. For example, a male job applicant who is rejected because the employer wrongly thinks he is a woman (because he has a name that is commonly used as a woman's name), would be able to claim for unlawful sex discrimination.

The Act will also widen Tribunals' powers to make recommendations in cases where unlawful discrimination has been proved. At present, a Tribunal can recommend that an employer takes steps that will reduce the effect of discrimination on the claimant. The Act is gong to extend this to enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff, publishing selection criteria used for staff transfer or promotion and setting up a review panel to deal with equal opportunities, harassment and grievances. While not binding, failure to comply with these could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.

From April 2011, the Act will create a new single public sector equality duty that will continue to cover race, gender and disability but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment. Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.

Also, private sector employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap. If considered necessary, this could become compulsory by 2013 (although the Conservatives stated in their election manifesto that they would not require this). Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011 onwards.

Preventing disciplinary action by use of injunction

The Court of Appeal has handed down its decision in Mezey v South West London Mental Health NHS Trust. A consultant forensic psychiatrist took a decision to allow a schizophrenic patient to have unescorted leave in the hospital garden. He used this opportunity to escape. The Court held that the employer?s decision to instigate its contractual disciplinary procedure against the consultant was a breach of contract which was capable of being "stopped/put on hold" by way of an injunction.

The Court of Appeal held that the contractual capability procedure under which the employer commenced disciplinary proceedings was designed to deal with situations where a practitioner's capability to practise was in question. The findings of an internal inquiry held by the Trust precluded such a judgment being made against the psychiatrist. Accordingly, the threshold for invoking any disciplinary procedure had not been crossed, and the employer was not entitled to commence any disciplinary procedure against the consultant.

New legislation coming into force

A raft of new employment laws came into force on 6 April 2010. Among the changes are:

  1. The new system of fit notes, which replace sick notes (as reported in our February 2010 updates).
  2. Additional paternity leave and pay. Fathers and partners (including same-sex and civil partners) will be entitled up to six months' additional paternity leave, provided:

    1. their baby is born or placed for adoption on or after 3 April 2011; and
    2. the baby?s mother has returned to work without exercising her full entitlement to maternity leave.

    The leave will be paid to the extent that the mother has foregone her maternity pay by returning to work early (and to the same value).

  3. A power for Employment Tribunals to refer whistleblowing complaints to regulators (as reported in our January 2010 updates).
  4. A new employee right to request time off work to undertake study or training. This applies to employees with 26 weeks' service or more. Employers will be required to give serious consideration to all requests. This right will be phased in, and will be made available to employees in organisations with 250 or more employees from 2010, before being extended to all employees from April 2011.
  5. A new offence for a person to hold another person in slavery or servitude, or require them to perform forced or compulsory labour. The new offence is aimed at protecting vulnerable workers such as migrants, and carries a maximum penalty of 14 years in prison.


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SRA number 404293