Wednesday 16th June 2010

Equality & Case Law

Equality Act

The Equality Act is due to become law in October 2010 and it's aim is to harmonise the raft of discrimination law which is applicable to employment. The protected characteristics are Age, Disability, Gender reassingment, Marriage & Civil partnership, Pregnancy and maternity, race, religion or belief, sex, sexual orientation.

All of the laws carry different definitions of what consitutes discrimination and so the Equality Act seeks to harmonise the terminology.

In summary employees may be able to claim (under any of the protected characteristics):

• Discrimination by association
• Discrimination on ground of incorrect perception
• Third party harassment
• Claims on joint grounds - maximum of 2. Employees have the ability to claim that they have been discriminated against because of a combination of two protected characteristics, for example an older female would have to prove that she has been disrciminated because of her age, and the fact that she is a female, not try to prove one or the other.
• Use of pre-employment questionnaires

This has been a welcomed piece of legislation as it the harmionisation of the terms of discrimination, however we recognise that it will cause further headaches for employers seeking to defend a claim. Employers should really think carefully about decisions regarding employees carefully, and that decisions are based on merit. We will post more details on this in the run up to October 2010.

Case Law

We thought we would give a quick update on recent case law, which will and has had several implications on employment practices.

Firstly two key cases which determined the right to legal representation at disciplinary hearings. The statutory right, and our usual advise is that employees are entitled to be accompanied by a trade union representative, or a fellow employee. However two cases, where the nature and allegations of the case where of such a serious nature and that the severity of the consequences were so high that the employee was entitled to legal representation. A Human Rights defence (article 6.1) allowing the employee to a fair hearing, coupled with the severity of the consequences, a teacher losing their ability to work in the profession again, was deemed to be reasonable.

In a similar case, where the severity was deemed to be career-threatening disciplinary charges, the employee was allowed, following an appeal.

Although both of these cases were public sector employers, the implications are far reaching, in that those private sector organisations regulated by external bodies, where the implications of the case has serious consequences, may be wise to consider allowing legal representation, where requested.

To follow further details on the case, please see G v The Governors of X School and Kulkarni v Milton Keynes Hospital NHS Foundation Trust.