Risk of Discrimination by Association

Carers may now claim disability discrimination against their employers, if they are treated less favourably, or harassed, on the grounds of their association with a disabled person.

This follows a ruling by the European Court in July 2008, in which a non-disabled woman successfully claimed she was discriminated against by virtue of her "association with" a disabled person, her son (Coleman -v- Attridge). Her employer had allegedly accused her of being "lazy" for taking time off to look after him.

It is possible that this could extend to other situations, such as age discrimination in respect of employees who care for young or elderly people.

In suspense over age discrimination

Age discrimination continues to be a hot topic for employers. The European Attorney-General's decision in the Heyday challenge (from the charity Age Concern) is expected in September, which could have important ramifications for direct discrimination cases. All compulsory retirement claims are stayed while we await this decision. At the same time, we are expecting the first appeal level decision which will clarify the circumstances in which employers can justify retirement (Seldon -v- Clarkson Wright and James).

Employers should also remember that age discrimination can arise not only from retirement but also recruitment. An employer fell foul of age discrimination laws by placing a job advertisement seeking “youthful enthusiasm”, and by asking a 58 year old candidate whether he still had the “motivation” and “drive” for the job (McCoy -v- James McGregor and Sons).

Greater maternity leave rights

Employees on maternity leave will soon be entitled to almost all their contractual benefits, during all of their maternity leave.

Currently, this only applies during ordinary maternity leave ("OML"), being the first 26 weeks of any maternity leave. However, for women whose "expected week of childbirth" is on or after 8 October 2008, it will also apply during additional maternity leave ("AML"), being the next 26 weeks.

Therefore, during both OML and AML, women will continue to accrue contractual annual holiday, and be entitled to their usual contractual benefits such as childcare vouchers, health insurance or a mobile phone. Pay during maternity leave is still governed by special statutory rules as before, so that anything which is contractual "remuneration" is not payable.

Employers should prepare for this change now by reviewing their policies.

Euro-Watch: Agency Workers, Working Hours and Holidays

Under a new EU directive, agency workers will receive broadly the same rights and benefits as permanent workers. The changes are yet to be finalised, and are likely to come into force in the UK in 2010.

As part of these negotiations, the UK has fought hard to save its opt-out from the 48-hour working week, but has agreed to an overall cap of 60 hours per week. There will also be changes to the operation of the opt-out, including that employees will no longer be able to opt out in their first month of employment.

Remember that, as we reported in a previous issue of Livewire, statutory holiday entitlement for full-time workers is now 24 days and is increasing to 28 days by 1 April 2009.