Race discrimination: benign motive no defence to direct discrimination

Direct race discrimination is unlawful, even if the employer is acting with the best of intentions.

Amnesty International did not promote a Sudanese employee to a role which it considered would put her in danger due to her ethnicity (as it required travel in Sudan). It was also concerned that her appointment would compromise its perceived impartiality.

The EAT ruled that the employer's motive was irrelevant. The treatment here was explicitly on the ground of the employee's ethnic origin and the law does not permit an employer to justify direct race discrimination. However, the employer's motive was relevant in determining that there had been no breach of trust and confidence in the employer's actions.

The EAT did suggest that employers in similar situations might be able to rely on the genuine occupational requirement defence (not relied on in this case). (Amnesty International v Ahmed, EAT)

TUPE: post-transfer relocation risks constructive dismissal claims

Employees relocated on a TUPE transfer may be able to claim constructive dismissal where a mobility clause only refers to the transferor's worksites or where the change causes material detriment from the employee's viewpoint.

A mobility clause allowed an NHS Trust employer to move the employee to work at other locations "within the Trust". The EAT ruled that, following a TUPE transfer, this continued to cover only the transferor Trust's locations. TUPE does not operate so as to expand the scope of such a clause to cover the transferee's worksites.

TUPE also allows an employee to claim constructive dismissal where there is a substantial change to working conditions to the employee's material detriment. "Working conditions" cover contractual terms as well as physical conditions. The EAT has confirmed that, while the test for substantial change is an objective question of fact, the test for detriment is subjective. The tribunal should consider the employee's viewpoint and whether that was a reasonable viewpoint to have.

Transferees in this situation may have to consider making redundancies where employees are unwilling to relocate. They may also face automatic or ordinary unfair dismissal claims. A previous tribunal decision (being appealed) suggests relocation may not be an ETO defence to automatic transfer-connected unfairness - see our April 09 ebulletin. Transferees planning a change of location will need to factor in these issues when negotiating indemnities and price. (Tapere v South London and Maudsley NHS Trust, EAT)

Disciplinary meetings: possible right to legal representation

An employee may be entitled to have a lawyer at a disciplinary hearing where the outcome of the hearing could deprive him of any future in that profession.

The Court of Appeal has agreed with recent High Court authority that an employee is entitled to legal representation at a disciplinary hearing where the outcome could be to deprive him of the right to practice his profession (rather than just losing one specific job). This could be a requirement of a fair procedure, even though the statutory right to a companion is limited to a work colleague or trade union official and even where the employers' own rules prohibit legal representation. It will be particularly relevant to employers in the education and caring sectors, financial services and other regulated professions.

The Court's opinion on the issue was obiter, as in this case the employer's own rules expressly allowed legal representation. See our Public Law ebulletin for further details. The decision is being appealed. (Kulkarni v Milton Keynes Hospital, CA).  

TUPE: application to pre-pack administrations

Earlier this year the EAT suggested that TUPE may not apply to transfer employees on a pre-pack administration. The transfer provisions do not apply to insolvency proceedings begun with a view to liquidation; the EAT thought this could apply where an administrator believed that it was not possible to rescue the company as a going concern and took immediate steps to sell company assets (see our January 2009 ebulletin).

On appeal the Court of Appeal has decided the case on a different point, but it is reported to have doubted whether the EAT approach to TUPE was correct. The judgment is not yet publicly available; we will update you further when it is published. (Oakland v Wellswood, CA)

New legislation

  • Regulations in force from 1 October 2009 allow local authorities to impose a levy on the amount of workplace car parking provided by employers. The government does not expect any levies to be collected before April 2012, giving employers time to review whether employees have express or implied contractual rights to workplace parking.
  • The statutory minimum wage for apprentices increased from £80 to £95 a week from 1 August 2009.

Legislative proposals/consultations

  • A consultation paper from the Equality and Human Rights Commission (EHRC) sets out options for gender pay reporting by private sector employers with at least 250 employees. Any proposals adopted will be voluntary, although the government has warned that it will use its power under the Equality Bill to require reports should there be insufficient progress on voluntary reporting by 2013. The consultation ends on 28 October 2009.
  • The EHRC has also published the results of its inquiry into the gender pay gap in the finance sector. It found an 80% gender pay gap for performance related pay and 55% for gross salary. It will now work to develop targeted solutions to the inequalities identified.
  • Following an MP's proposed amendment to the Equality Bill to require selection for interview to be carried out on an anonymous basis, the government has indicated that it will look at the issue once it has the results of its current investigation. It has sent out 3000 applications with false names to test whether the use of names facilitates unlawful discrimination.
  • EU proposals to increase parental leave from 3 to 4 months and extend parental leave rights to workers have been adopted by the European Commission and will now be considered by the Council of Ministers.
  • The FSA has published a Remuneration Code applicable to 26 large UK financial institutions from January 2010 -see our Corporate ebulletin for further details.
  • The government is consulting until 12 October on proposals to treat more construction workers as receiving employment income for tax purposes – details here.
  • The government is consulting until 13 October on its forthcoming review of rules on UK domestic drivers' hours – details here.
  • The government has rejected proposals for a generic right of collective action, but has left the door open for it to be adopted in individual sectors. There are reports that government research recommends piloting collective actions in equal pay claims. See our Litigation ebulletin for further details.

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