Employment Law Update - September 2009

This update keeps you informed of new developments in employment law and focuses particularly on a recent Employment Appeal Tribunal decision concerning Amnesty International

Motive irrelevant in establishing race discrimination

In the recent case of Amnesty International v Ahmed (UKEAT/0447/08/ZT), the Employment Appeal Tribunal (EAT) held an employee was subjected to direct discrimination when her employer, Amnesty International, did not offer her a promotion because her ethnicity meant  it would be dangerous for her to perform the role. Further, Amnesty International was concerned that offering the promotion could compromise its impartiality and, therefore, effectiveness.


Facts


The employee is of northern Sudanese origin and applied for the role of 'researcher' for Sudan. She was, at the time, performing the role of 'campaigner' in respect of Sudan. Amnesty International was of the view that her ethnic origin would not only compromise its impartiality, but would also expose her and those travelling with her, to increased safety risks when visiting Sudan or the camps in Eastern Chad. On this basis, her application was refused and, as a result, the claimant resigned and claimed race discrimination and constructive unfair dismissal.


Amnesty International has always been concerned about the problems that may arise if staff of a particular nationality or national or ethnic origin undertake work in, or related to, the country of which they are a national. This is because the impartiality, or perceived impartiality, of the staff in question may be prejudiced by their connections with the country. This would not only reduce effectiveness but could also have implications for Amnesty's own reputation for neutrality. Further, staff who have to visit a country of which they are nationals, are considered to be at significantly greater risk of ill treatment or violence than others.


Finding


The EAT held that the employer's motive is irrelevant in establishing whether an individual has been discriminated against on the grounds of race. The employee's non-appointment to the new role constituted direct discrimination contrary to the Race Relations Act 1976, notwithstanding any potentially justifiable reasons for the decision. Amnesty International was unable to successfully defend its actions on the grounds that sending the employee to Sudan would have meant it breached its duty as her employer under the Health and Safety at Work etc. Act 1974.


However, the EAT concluded that Amnesty International's conduct was not sufficient to breach the mutual term of trust and confidence, entitling the employee to claim constructive dismissal. In this regard, the employer's motive was relevant in that Amnesty International had reached its decision following a thorough and reasoned process, which was not influenced by racial prejudice.

Workplace parking levy schemes

The Workplace Parking Levy (England) Regulations 2009 will come into force on 1 October 2009. Under these regulations, local authorities in England (excluding Greater London) will be able to introduce a workplace parking levy scheme. Details of how each scheme will operate will be the responsibility of each local authority. It is hoped that by imposing a levy on the amount of workplace car parking provided by employers, car-commuting will reduce in favour of alternative means of transport.


The Regulations do not specify charging levels, exemptions and discounts which will be decided by the Local Authority in light of local circumstances. Guidance will be issued to Local Authorities by the Department of Transport as to which issues should be taken into account in workplace parking levy schemes. No workplace parking levy scheme will come into operation until 2011, and no levy is expected to commence before April 2012. 


Employers may have to consider the parking offered to their staff following the introduction of any workplace parking levy schemes and will have to have regard to any implied contractual right to parking.

Review of the default retirement age

Under the Employment Equality (Age) Regulations 2006, the statutory default retirement age is 65. It was originally intended that this would be reviewed in 2011. However, due to the change in economic circumstances, the government has announced in its strategy 'Building a Society for All Ages' that this review will be brought forward to 2010.


Currently, the government is gathering evidence to inform the review. If, as a result of the review, it is found that the default retirement age is no longer necessary, any changes would not be implemented until 2011. This will give employees and employers sufficient time to prepare for any changes, and allow employees additional time to consider their retirement plans. Employers will be encouraged to give employees more choice over their retirement as part of the Age Positive initiative. This government initiative will also work with employers to promote the recruitment and retention of older workers.

Employment claims in decline?

In July, Acas published its annual report for the year ending March 2009. Interestingly, the report revealed that the total number of employment claims actually declined by 8 per cent despite the widely reported issues faced in the job market. In addition, Acas noted a 13 per cent fall in the number of equal pay claims.


Despite the overall decline in the number of claims reaching employment tribunals in 2008/09, closer analysis of the figures revealed an increase in Acas' conciliation and mediation services and a significant shift in the nature of claims pursued. Acas' report highlighted a 29 per cent rise in unfair dismissal claims and a 36 per cent rise in redundancy claims. The shift in the type of claims has been largely attributed to the current recession which has required many employers either to reduce headcount or restructure their workforce.


In addition to recording the annual number of claims, the report revealed that Acas received 78,670 cases for conciliation from the employment tribunals representing a rise of 18 per cent from last year. Unsurprisingly, Acas confirmed that the economic downturn led to a rapid and sustained increase in the number of cases passed to them for conciliation in the second half of 2008/09. In addition, Acas' mediation service saw a 24 per cent increase in demand over the preceding year with resolution rates remaining very high at just over 90 per cent.


Therefore, despite the fact that fewer claims are reaching employment tribunals, there is little doubt that the economic downturn has prompted a sharp rise in workplace disputes. 


The Acas helpline, which has long acted as a barometer for the state of the workplace, predictably showed a dramatic increase in calls for advice on redundancy and lay-offs, from employers and workers alike. With commentators predicting that unemployment is likely to continue to rise in the coming months and into 2010, employers are well advised to seek specialist advice to minimise their exposure to employment claims.

HMRC threatens to get tough with dodgy recruitment agents

The Revenue has recently published a brief announcing that it is going to get tough with recruitment agencies and umbrella organisations which breach tax and national insurance legislation when offering temporary workers. HMRC will be working with the Department for Business Innovation & Skills, and the Gangmasters Licensing Authority to identify businesses acting in contravention of legislation and will penalise breaches of the law as they are identified. Businesses which use temporary workers need to make sure that the supplier is operating within the law to avoid the risk of putting their own reputations and businesses at risk