Employment Update
12 September 2008
Discriminatory shortlisting process
An Employment Tribunal has confirmed that an employer who
advertised for candidates “in the first five years of their career”
indirectly discriminated against a 61 year old claimant when it
failed to shortlist her for the position. The claimant was plainly
in an age group which would be disadvantaged by the employer’s
approach. The employer also failed to justify its shortlisting
decision on the basis of cost.
In Rainbow v Milton Keynes Council, Ms Rainbow had been a
qualified teacher since about 1972. She reduced her hours after the
head teacher assured her that she would have an option to do all
long-term supply cover days and would be advised of part-time or
job share posts and any full-time posts. This did not take
place.
A teaching vacancy subsequently arose for a year 3 class
teacher. The advertisement stated that it would suit candidates in
the first five years of their career. Mrs Rainbow had experience of
teaching this class and requested an application pack. She was
told, however, to send a letter of application only. She did not
receive the application form, job description or person
specification.
Whilst the NUT complained on her behalf about the wording of the
advertisement and it was subsequently amended, Ms Rainbow was not
shortlisted for the job. Her rejection letter stated that she did
not address planning and assessment in her application letter. She
claimed, amongst other things, that she had suffered direct and
indirect age discrimination in relation to the application process
for the year 3 role and the decision not to shortlist her.
The Tribunal confirmed that the failure to shortlist her
amounted to indirect age discrimination. It held that the rejection
letter concealed the true reason for rejection, which was one of
costs. It stated that if cost was to be put forward as
justification for the decision not to shortlist Ms Rainbow, it
should be combined with other reasons. The respondent had failed to
put forward adequate evidence that the school’s budgetary position
required the employment of a teacher within the first five years of
employment and there was no evidence of any other financial
strategy.
The Tribunal noted that there is no automatic bar on economic
grounds coming into the equation on justification, certainly where
combined with other reasons. The Tribunal stated that if cost is
going to be put forward as a justification for an otherwise
discriminatory practice, the evidence should be such that the
respondent was more or less compelled to take the discriminatory
decision for reasons of costs plus other reasons.
New Agency Work Commission launched
The Recruitment and Employment Confederation, which represents
the recruitment sector, has launched an Agency Work Commission
ahead of the second reading of the Temporary Workers Directive in
the EU Parliament.
As reported in earlier updates, the Temporary Workers Directive
intends to give temporary agency workers the right to the same
basic working and employment conditions as would apply if they had
been recruited directly to occupy the same job.
The aim of the Commission is to make practical recommendations
to Government on how the new Directive can be implemented in such a
way so as to avoid jeopardising jobs and creating administrative
difficulties.
ACAS guide on job evaluation
Acas has launched a new guide
which considers the benefits and risks of undertaking job
evaluation in an effort to help make businesses less vulnerable to
equal pay claims.
The guide explains how a job evaluation risk analysis should be
established and implemented and is designed to help employers
decide whether introducing a job evaluation structure is
appropriate for their business.
BERR consults on European Works Councils
The Department for Business Enterprise and Regulatory Reform
(BERR) has issued a consultation paper on the European Commission's
proposals to recast the EC European Works Councils Directive.
The Directive sets out broad requirements for employers to set
up a European Works Council (EWC), for the purposes of informing
and consulting employees, where their workforce within the EEA
meets certain thresholds.
The Commission’s objectives for amending the Directive include
improving the effectiveness of informing and consulting employees
in existing EWCs, improving certainty in the setting up and
operation of EWCs and enhancing coherence between EWCs and other
national level procedures.
The UK Government has not yet determined its position on the
Commission’s proposals but will take into account a number of
factors when assessing the proposed amendments. These include the
need to:
- support effective employee engagement
- encourage more EWCs to be established
- avoid imposing arrangements which impede and delay
decision-taking by management
- avoid imposing disproportionate costs on business
The consultation paper states that the French presidency and the
Commission are seeking political agreement from member states and
the EU Parliament on the revision of the Directive by December
2008. In light of the short timetable, the Government has shortened
the consultation period and consultation will therefore close on 6
October 2008.
Increase to minimum apprenticeship earnings
It has been announced this week that the minimum weekly earnings
for all apprentices in England will be increased from £80 to £95 a
week next year. The increase follows a review of apprentice pay
carried out this year. The new £95 minimum, to start from August
2009, is set to benefit an estimated 26,000 apprentices.
Sex and Power report published
The Equality and Human Rights Commission (EHRC) has published
the latest report of ‘Sex
and Power’, looking at women in top positions of power and
influence across the public and private sectors.
The EHRC states that the survey suggests a worrying trend of
reversal or stalled progress, with only a few significant
increases. It indicates fewer women hold top posts in 12 of the 25
categories and, in another 5 categories, the number of women
remains unchanged since 2007's report. Women's representation has
increased in just 8 areas.
This year's report, which traditionally estimates the number of
years it will take for women to achieve equality in key areas at
the present rate of progress, indicates that, when compared to
previous year's predictions, it will now take 15 years longer (a
total of 55 years) for women to achieve equal status at senior
levels in the judiciary, and women directors in FTSE 100 companies
could be waiting a further 8 years (a total of 73 years).
Teleworking is on the up
The latest CBI/Pertemps Employment Trends Survey has revealed
that almost half of all employers (46%) now offer teleworking to
their staff, which is a significant increase from 14% in 2006.
Employers believe that staff may be trying to cut their carbon
footprint, or are avoiding a troublesome commute and poor transport
infrastructure.
The survey, which was based on 513 respondents employing over 1
million staff, also showed that nearly all employers (93%) offer at
least one form of flexible working and 57% offer at least three.
Eight in ten (81%) requests were granted in the last year. The
survey also revealed that 31% of employees reaching retirement age
asked if they could postpone their retirement, emphasising the
ongoing need for flexibility of the workforce.