Issue 74 - 11th December 2009

Friday 11 December 2009

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European Commission

The European Commission sent two reasoned opinions to the United Kingdom for incorrectly implementing EU rules prohibiting discrimination in employment and occupation on the grounds of gender (2002/73/EC) and rules prohibiting discrimination based on religion or belief, disability, age or sexual orientation in employment and occupation (Directive 2000/78/EC). This is the second stage of the infringement procedure. Both countries now have two months to respond.

The reasoned opinion for incorrect transposition of Directive 2002/73/EC raises the following issues:

  • the definition of indirect discrimination is too narrow, as it does not cover potential discrimination;
  • the exceptions to the principle of non-discrimination on the basis of sex for certain jobs are too wide;
  • the exceptions to the principle of non-discrimination for "office-holders" in political institutions are not defined with sufficient precision;
  • the right of associations to support victims of discrimination before the courts is not established with sufficient clarity.

In the reasoned opinion sent to the United Kingdom, for incorrectly implementing EU rules prohibiting discrimination based on religion or belief, disability, age or sexual orientation in employment and occupation (Directive 2000/78/EC the Commission pointed out that:

  • there is no clear ban on 'instruction to discriminate' in national law and no clear appeals procedure in the case of disabled people;
  • exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1780&format=HTML&aged=0&language=EN&guiLanguage=en

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1778&format=HTML&aged=0&language=EN&guiLanguage=en

Court of Appeal

Discrimination - Stigma damages
Chagger v Abbey National plc [2009] EWCA Civ 1202

The Court of Appeal holds that employees who suffer stigma when looking for a new job as a result of having brought a discrimination claim against their previous employer are entitled to be compensated for their resulting loss by that employer. In most cases, stigma loss will not need to be considered as a separate head of loss, it will simply be a factor to be considered when assessing how long the claimant will remain unemployed. Read more.

Practice and Procedure

The Governing Body of St Alban's Girls' School & anr v Neary [2009] EWCA Civ 1190

An employment judge considering an application for review of a sanction is not under an obligation to expressly consider each of the potentially relevant factors set out in CPR 3.9. Employment Tribunals are not and never have been courts. It should be inferred that Parliament deliberately did not incorporate CPR 3.9 into employment tribunal practice. Read more.

EAT

Discrimination - Damages for injury to feelings
Da'Bell v National Society for the Prevention of Cruelty to Children UKEAT/0227/09

The EAT holds that the Vento guidelines should be uprated to take account of inflation. The top of the lower band rises from £ 5,000 to £ 6,000; the top of the middle band rises from £15,000 to £18,000; and the upper limit rises from £ 25,000 to £30,000. Read more.

Discrimination - Religion or Belief
McFarlane v Relate Avon LtdUKEAT/0106/09/DA

The EAT upheld the Tribunal's to dismiss claims of discrimination (direct and indirect) contrary to the Employment Equality (Religion or Belief) Regulations 2003 and of unfair dismissal A Christian counsellor who dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples. (London Borough of Islington v Ladele followed)
The reason for the Appellant's dismissal was his refusal to comply with the employer's equal opportunities policy. Any indirect discrimination was a proportionate means of achieving a legitimate aim. Read more.

Practice and Procedure
Bias, misconduct and procedural irregularity

Ross v Micro Focus Ltd UKEAT/0304/09/SM
The Appellant complained of the conduct of a lay member at the Tribunal including her body language and gestures being supportive of the Respondent, particularly during the cross-examination of the Respondent Company's Chairman.
The EAT accepted that the tribunal member's body language had been inappropriate and that she had not taken "particular pains to disguise her agreement with some of the points made on [the employer's]' behalf". However the EAT pointed out that there is a substantial difference between falling below the appropriate standard for professional judging, breach of which would or could amount to discourtesy, and being biased. The appropriate test here was whether an obvious display, by body language, of approval of what a witness was saying was sufficient to evidence a mind which had been made up before conclusion of the hearing. The EAT found no case of pre judgment or closed mind made out and consequently no real possibility of the Tribunal being biased. Read more.

National Minimum Wage
Hamilton House Medical Ltd v Hillier UKEAT/0246/09/CEA

The EAT confirmed that the Minimum Wage Regulations must relate to basic rate of pay even if employee normally only works nights or weekends and receives enhanced pay. Ansell J stated: "The philosophy of the National Minimum Wage Regulations is clearly that an employee's basic minimum wage before overtime enhancement or other allowances should not fall below the statutory minimum and it seems to me that it would be completely contrary to the purpose of the legislation if that obligation could be avoided simply because an employee chooses to normally work those hours when she would be in receipt of some enhancement." Read more.

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