Friday, 30 April 2010

Requirement of Holding a Degree Not Age Discrimination

In the first case involving Age Discrimination has been considered in a substantive appeal in the higher court, The Court of Appeal has handed down its decision that requiring an employee to hold a degree in order to qualify for a higher pay grade did not amount to indirect age discrimination...

in Homer v Chief Constable of West Yorkshire Police, the requirement that an employee to have a degree in order to qualify for a higher pay grade was deemed not amount to indirect age discrimination. The argument put forward by the Appellant was in essence that an older employee would not have time to obtain such a qualification before retirement. This was on the basis that the particular disadvantage to the employee flowed from the fact of his imminent retirement rather than his age.

On consideration of the law below, Lord Justice Maurice Kay stated: 'The appellant's case is not one of a particular disadvantage but one of a claim for more favourable treatment on account of age'.

This case, however involved a question of law - the case did not present factual evidence to show that the employee's age group would be less likely to have a law degree, or would find it harder to reach that requirement.

The relevant domestic law is to be found in the Employment Equality (Age) Regulations 2006. Regulation 3 provides:

"(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances are the same, or not materially different, in the other.

(3) In this regulation –

(a) 'age group' means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages … "

Thus, Regulation 3(1)(a) prohibits direct discrimination and Regulation 3(1)(b) prohibits unjustified, that is disproportionate, indirect discrimination. The approach is similar, but not identical, to the approach in other domestic anti-discrimination legislation.

[2010] EWCA Civ 419 Case No: A2/2008/2793

Wednesday, 28 April 2010

New Case Shows Importance of 'Reasonable Belief' in Whistleblowing Cases

In the recent EAT case of, Goode v Marks & Spencer Appeal No. UKEAT/0442/09/DM, the fact that protected disclosures have to be subject of a 'reasonable belief' was explored.

As we know the protected disclosures fall under:

Section 43B(1),ERA (a-f)

In order to be afforded protection under PIDA the disclosure must relate to one of six categories of subject matter:

That a criminal offence has occurred or is likely to occur

A person has failed or is likely to fail to comply with a legal obligation;

A miscarriage of justice has occurred or is likely to occur;

The health and safety of an individual has been or is likely to be endangered;

Environmental Damage;

Or information tending to show one of the above has been or is likely to be deliberately concealed.

The leading case in this area is that of Babula v Waltham Forest College. Court of Appeal, 2007 EWCA Civ 174. Lord Justice Wall, giving the judgment said that, In each of the instances identified in S.43B(1)(a)-(f), the whistleblower has to establish a reasonable belief that the information being disclosed ‘tends to show’ one or more of the situations in (a)-(f). However, nothing in that section requires a whistleblower to be right. Provided his or her belief is held by the tribunal to be objectively reasonable, neither the fact that the belief turns out to be wrong nor the fact that the information which the claimant believed to be true does not in law show, for example, that a criminal offence is likely to be committed or that a person is likely to be in breach of a legal obligation, is sufficient of itself to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.

The recently reported case of, Goode V Marks And Spencer, the Appellant's expression of an opinion about an employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme does not amount to a qualifying or protected disclosure. The EAT supported the ET who could not see that the Claimant could have a reasonable belief looking at the facts that he had been dismissed because of a 'sham' redundancy scheme.

The Appellant had taken a number of steps, including complaining to his line manager, contacting the Times and completing a survey, which he sought to argue were protected disclosures - all in relation to the detail of a proposed redundancy scheme - which should entitle him to the protection of section 103A ERA and render his subsequent dismissal automatically unfair. Such information as the Appellant sought to rely on to establish that protected disclosures had been made was not enough to be the subject of a reasonable belief that it tended to show that the Respondent was likely to fail to comply with any legal obligation to which it was subject. The appeal was dismissed.

The case is a reminder that when defending against whistleblowing cases it is often worth arguing why the protected disclosure could not possibly be based on a reasonable belief...of course whether the disclosure is made in 'good faith' or not is an entirely different but essential chapter.

Saturday, 24 April 2010

DLA Piper Survey Gives Thumbs Down to Positive Discrimination

A survey commissioned by DLA Piper gives positive discrimination the thumbs down!

A survey of 545 senior UK business figures has revealed overwhelming opposition to legislative intervention to encourage under-represented minorities in UK companies.

More than four fifths (81%) of respondents to DLA Piper’s General Election Survey 2010, interviewed online by YouGovStone, said that they opposed ‘positive action’ to give priority to candidates for employment or promotion from under-represented minorities, as a power contained in the Equality Bill, which will become law later this year. Only 13% of respondents were in favour of such action.

There was also a high level of opposition to any change in the law in the next Parliament that would allow companies to introduce quotas for female managers if they wished, with 77% of the sample saying that they would not support such measures. There was even more opposition to any new legislation with the express purpose of increasing the number of women on the boards of UK companies, with 86% of respondents coming out against any new laws, and only one in ten (10%) in favour. Anonymous comments submitted on the survey reveal the strength of feeling that any personnel decisions should be based purely on merit; for example, "Companies must be able to choose the best people available for all jobs", and, "Implementation of quotas…will inevitably lead to the hiring of less able people" were indicative of the overall responses.

On the subject of the compulsory retirement age in the UK, nearly one in three (30%) of those questioned were in favour of the next Government scrapping it entirely. Half (51%) felt that the age should be kept as it is, while 13% wanted to see it increased and 5% supported a reduction. With Britain’s ageing population and the growing burden of financing old age pensions, there is clearly a recognition that people will need to work for longer to fund their retirement, and that older employees, who still have much to offer their organisations, should have a greater degree of choice in their retirement age.

Elsewhere, the question of whether people approaching retirement age should be forced to take out insurance to pay for future care divided the survey group, with 46% opposed to the idea, and 48% in favour of it, either universally (19%) or subject to a means test (29%).

Jonathan Exten-Wright, employment partner at DLA Piper London, said: "The high level of opposition to any legislative change by the Government in recruitment and promotion appears to reflect a broader distaste for any further legal burden on UK companies, and the importance placed on individuals being rewarded on merit and no other factors. Clearly, everybody would like to see UK companies operate in a meritocratic manner, and the system is currently far from perfect – however, the clear message from this research is that direct legislative intervention would face significant opposition from some in the business community. The survey's respondents do not disagree with the objective of greater representation, but many object to the proposed methods which seek to ensure it in a way which they perceive as unfair. Any incoming Government will be faced with the dilemma of campaigners arguing best practice has not gone far enough and business resisting what it sees as unworkable red tape."

Vote in the Lawyers General Election Poll! are running a lawyer's general election poll.

They ask amusingly who would you like to represent you in court Cameron, Clegg or Brown?