Employment update 12 March

Welcome to our fortnightly round-up of what's happening in employment law.

Discrimination by agency worker - no remedy for employee

The Employment Appeal Tribunal (EAT) has confirmed that an employer was not liable for the discriminatory acts of an agency worker.

In May & Baker Ltd v Okerago, Ms Okerago was dismissed by May & Baker purportedly for a reason related to conduct. She claimed that her dismissal was unfair and discriminatory on the grounds of race. In particular, she alleged that Ms Dower made a racially offensive comment to her. Ms Dower was an agency worker, supplied to work for May & Baker by the recruitment company Adecco. Ms Okerago raised this matter as a grievance but argued that it was never investigated and no findings were ever made.

The Employment Tribunal found May & Baker liable for direct discrimination. When May & Baker subsequently appealed to the EAT, the EAT asked the original Employment Judge to clarify its findings. The Judge confirmed that May & Baker were found liable under sections 32 and 33 of the Race Relations Act 1976, which deal with the liability of employers and principals and aiding unlawful acts respectively. In relation to section 32, the Employment Judge noted that Ms Dower had worked under the day-to-day control of May & Baker and, to all intents and purposes, was treated as an employee on a day-to-day basis. The Employment Judge also considered that May & Baker were liable under section 33 as, by its subsequent conduct, it knowingly aided and condoned the acts of Ms Dower.

The EAT allowed the appeal and substituted a decision to dismiss Ms Okerago's claim. There were no findings of fact which permitted the Employment Tribunal to conclude that Ms Dower was an employee of May & Baker. Liability could not be based on the Tribunal's finding that she was treated as an employee and acted as one. Similarly, there were no facts which would enable the Tribunal to reach a conclusion that Ms Dower was an agent of May & Baker. Further, to establish liability for "knowingly aiding" under section 33, the EAT confirmed that a person cannot aid another to do something which the other person has already done. None of the actions taken by May & Baker after Ms Dower made the racially offensive comment could amount to aiding her as the incident had already taken place. The EAT also confirmed that allowing an environment where particular conduct could take place does not amount to aiding that conduct.

As illustrated in a case reported in an earlier Employment Update, this case underlines the difficulty that employees are likely to encounter when claiming that an employer is liable for direct discrimination because of the actions of an agency worker.

Caste discrimination – Equality Bill

A provision has been added to the Equality Bill enabling the Government to amend the definition of "race" to include "caste" in the future.

The Government has commissioned further research to establish the extent of caste discrimination. The research will be wide-ranging and will examine caste-based prejudice and discrimination more broadly. It will explore the nature, extent and severity of caste prejudice and discrimination in Britain, and its associated implications for future government policy. The research is due to be available in July or August this year.

BIS guidance on Blacklisting Regulations

The Department of Business, Innovation and Skills has produced final guidance on the Blacklisting Regulations, which came into force on 2 March 2010. 

The guidance summarises the Regulations, which prohibit the blacklisting of trade unionists, and provides guidance on their application in practice, setting out what is prohibited, what constitutes a blacklist, exceptions from the general prohibition and available remedies.

Christian registrar - appeal to Supreme Court refused

In the long-running case of Ladele v London Borough of Islington, the Court of Appeal confirmed last year that a Christian registrar, Ms Ladele, who was disciplined for refusing to conduct same-sex civil partnership ceremonies was not unlawfully discriminated against on the grounds of her religion. Ms Ladele has now reportedly been refused permission to appeal her discrimination claim to the Supreme Court. It is reported that Ms Ladele is considering taking her case to the European Court of Human Rights.

Call on employers to be carer friendly

Business, Government and charity leaders have today backed better support for staff who balance a job with caring for an older or disabled person.

Ministers announced that six government departments will sign an agreement with Employers for Carers on how they will work in partnership to develop and promote support for carers in the workplace. This will include guidance for employers and raising awareness of employees' right to request flexible working.

The Memorandum of Understanding sets out how Employers for Carers and the Government can work together to implement the Government's 'Carers Strategy'. The Strategy's commitments include:

• an awareness-raising campaign to ensure that carers and employers are aware that carers have the right to request flexible working;
• production of a good practice guide for all employers on the benefits of recruiting carers; and
• reviewing the definition of 'carer' in the flexible working regulations.

European Commission - plans to reduce gender pay gap

The European Commission plans to reduce the pay gap between men and women significantly over the next five years.

The average gender pay gap in the EU currently stands at 18%. To lower this rate, the Commission plans to raise awareness among employers, encourage initiatives to promote gender equality and support the development of tools to measure the gender pay gap.

The Commission intends to analyse the economic and social impact of certain options, in particular:

• on reporting the gender pay gap and ensuring transparency on pay at company and individual levels or collectively through information and consultation with workers;
• on reinforcing the obligation to ensure gender neutral job classifications and pay scales; and
• on improving the provisions on sanctions in case of a breach of the right to equal pay (for instance, higher sanctions in case of repeated offence).
  

Women in the boardroom

Companies may be required to report on their progress to get more women into the boardroom, under proposals announced recently.

A survey, commissioned by the Government Equalities Office, shows that half of those surveyed believe there will be equal numbers of men and women directors within the next 20 years. However, it has been reported that it will take 60 years for women to gain equal representation on the boards of the top 100 companies at the current rate of progress.

The Government has asked the Financial Reporting Council to consider including a new principle in its code of conduct (UK Corporate Governance Code) to require firms to report on what they are doing to increase the number of women in senior management positions.

Other key findings from the survey include the following:

• A clear majority (80%) think a balanced senior management team will be better at understanding their customers.
• Nearly two thirds (61%) believe businesses are losing out on talent by having fewer women in senior roles.
• 71% believe having more women on senior management teams will lead to more family friendly working practices.

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