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News & Updates

Employment Law April Briefing

In this edition of our monthly employment law e-briefing we cover

• Age, Religion and Sex Discrimination
• Corporate Homicide
• Minimum Wage
• Unusual interviews

How not to dismiss

This month we have news of an 18 year old office administrator who was dismissed and apparently told she was too young for the job. Her employer argued that there were errors in her work and the dismissal was on grounds of capability but the employment tribunal found that age was the predominant reason for the dismissal. This case warns against the assumption that age discrimination laws protect only elderly workers. This young worker had been in her post for only ten weeks yet the tribunal awarded her more than a year's loss of earnings and £5,000 for injury to feelings.

Another noteworthy point from this case is the importance of following the statutory dismissal procedures where there is a risk of a discrimination claim, as the year's service requirement for unfair dismissal claims does not apply to discrimination cases.  The three step procedure had not been followed here so the tribunal awarded a 50% uplift on compensation.

Headscarf hairdresser

A Muslim woman is claiming over £30,000 in a religious discrimination claim against a central London hair salon.   The stylist made clear at her interview that wearing a headscarf was essential to her religion and that she would not remove the headscarf at work. She was refused the job as a result.

Changes to sex discrimination law

Pregnant workers and others affected by sex discrimination will benefit from increased protection from 6^th April 2008. Changes to the Sex Discrimination Act were required in order to comply with European law. When the changes take effect pregnant workers and those on maternity leave will be able to raise discrimination claims without having to identify a comparator. They will no longer have to prove that they were treated less favourably than a man or a woman who was not pregnant.

It will also be easier to claim harassment under the Sex Discrimination Act. An individual may claim they were harassed even if the offensive conduct was directed at a third party. If the effect of the conduct was to create an intimidating, humiliating or offensive environment for any individual present, that individual may claim harassment even if the conduct was directed at someone else.    

Employers will also be vicariously liable for discrimination by third parties. This will include customers, clients and visitors. An employer must take steps to prevent harassment by a third party if an individual has been the subject of harassment at work on at least two previous occasions. 

Corporate Homicide

Employers should take note that from 6^th April 2008 it will be easier to convict organisations of culpable homicide. This is the date on which the Corporate Manslaughter and Corporate Homicide Act 2007 comes into force.   An organisation may be convicted where a gross failure in the way activities are managed or organised results in a person's death.

Before this change to the law, organisations could be convicted for corporate manslaughter only if a "directing mind" at the top of the company was also personally liable. The new offence does not introduce new obligations but makes it easier to convict because it allows an organisation's liability to be assessed on a wider basis. Courts will look at management systems and practices across the organisation and at whether an adequate standard of care was applied to the activity which resulted in death. Although a substantial part of the failing must have been the fault of senior management, there is no need to prove that any individual was also personally liable. Individuals may still be prosecuted for other offences related to health and safety but the new corporate homicide offence applies only to the organisation itself.

An organisation convicted of the offence may receive an unlimited fine, a publicity order requiring it to publicise details of the offence and conviction and a remedial order requiring it to address the cause of the fatal injury. The offence will apply only to the most severe cases where there has been a gross breach of a duty of care but nonetheless, this is an important time for organisations to ensure that they comply with all health and safety requirements. Employers should consider their organisation's strategic approach to health and safety, carry out risk assessments and review systems of work, adequacy of equipment and employees' levels of training.  

Enforcing the minimum wage

When the Employment Bill comes into force, one of the changes will be a new penalty regime for enforcement of the national minimum wage. Enforcement officers will be expected to issue penalties in almost all cases of underpayment. This will mark a change from the current regime under which only two firms have been prosecuted. The low level of prosecution is not because all companies are complying with the minimum wage. There have been only two prosecutions because most employers tend to pay up when they are found out. Employers may well face tougher penalties when the new regime comes into force.

April Fools' Day is over but......

Travelodge would appear to be planning speed-date style job interviews. The hotel chain intends to recruit 100 new managers but instead of a traditional interview process the applicants will spend just 3 minutes with their potential employer. Those whose ‘dates' go well will be invited back for a second interview of unspecified duration.  The job advert explains that applicants should have had "a past relationship" with the retail or leisure industry and among other desired traits they should have a "GSOH".

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