Discrimination law and family friendly rights

Discrimination law and family friendly rights

Ellen Temperton and Colin Leckey

Discrimination: Changes to the Equality Act

Abolition of Discrimination Questionnaires

Current Proposed

• Claimant/would-be Claimant can serve Questionnaire on employer in connection with discrimination claim

• Statutory procedure abolished

• Failure to reply within 8 weeks, or evasive/equivocal reply, may lead to inference of discrimination (transferring the burden of proof to the Respondent)

• But “gap” filled by new “informal approach”, supported by ACAS guidance

Questionnaire Repeal: A bit of a muddle...(1)

• Why did we ever have Questionnaires in the first place?

Hard to prove discrimination: employer holds cards; much discrimination subconscious

Consequent desirability of mechanism for employees to elicit information to establish whether there is a basis for a claim

Fits within the burden of proof framework

• With us since December ‘75

Questionnaire Repeal: A bit of a muddle (2)

• Concerns re: burden to business, use as “ fishing expedition” – BUT can still ask questions by other means

Consultation of 15 May 2012

Questionnaires not achieving “intended purpose” of:

“Encouraging settlement of claims without recourse to tribunals/courts”

Improving “efficiency of claims process for cases that reach a court/tribunal

Questionnaire Repeal: A bit of muddle (3)

83% of respondents opposed repeal.....

.......but Government still supported, as Questionnaires “prescriptive and potentially threatening to employers”, and procedure “encourages undesirable micro-management of the process by Government”.

Government response to consultation – October 2012

Questionnaire Repeal: A bit of a muddle (4)

• Still plan to repeal......

......but supplemented by “guidance produced by ACAS [which] will include advice on how individuals can ask questions and why [emphasis added] employers and service providers should respond”. To enable business to “better challenge any unreasonable requests for information which they have told us they currently experience with the statutory provisions”.

Government progress report: 14 March 2013

Practical Implications

• None, until repeal takes effect (expected soon)

• Burden of proof regime will still make it risky to ignore questions

• Greater flexibility to push back on irrelevant questions – but fairly flexible at the moment?

• Will ACAS Guidance assist in addressing uncertainties?

• Same questions, different format? New uncertainty over how soon to reply?

Abolition of third party harassment

“Three strikes and you’re out”:

• Employer liable for third party harassment if:Failed to take reasonably practicable steps to prevent,

andKnows that employee has been harassed on at least two

other occasions by a third party (whether same or different)

Abolition of third party harassment

• Repeal proposed as “unnecessary regulation introduced without any real or perceived need”

• Other recourse available:Health & Safety lawConstructive dismissal NegligenceProtection from Harassment Act 1997Ordinary harassment provisions in Equality Act

Abolition of third party harassment

• Date now unclear (same timeframe as Questionnaires)

• Only 20% of respondents supported repeal

Likely future battleground:

General harassment provisions: “unwanted conduct”

Principal / agents provisions in EA

Equal Pay Audits

• New power to order equal pay audit where employer loses sex discrimination/equal pay claim. But not if:

Audit carried out in past 3 yearsEmployer has transparent pay practices“Good reason” why not useful

• Detail to be fleshed out in regulations (subject to further consultation)

Equal Pay Audits

• A new incentive to settle?

• A new battleground in remedies hearings?

• Civil penalty for non-compliance

And finally...

• Government last week ruled out legislating to outlaw caste discrimination

The new flexibility: the Children and Families Bill

Flexible working: A more flexible approach?

• Right to request to extend to all employees with 26 weeks’ service

• Statutory procedure to be abolished

• Replaced by general requirement to consider requests in “reasonable manner” – with decision within 3 months

• Supported by new ACAS Code of Practice (1.5 pages!) (“presumption that you will get”)

Flexible working: A more flexible approach?

• Same grounds for saying “no” as under present regime

• Expanded range of discrimination risks? How to prioritise competing claims?

Shared parental leave – key proposals

• New system of shared parental leave from April 2015

• Option for parents to share up to 50 weeks of leave and 37 weeks of pay (i.e. everything not related to compulsory maternity leave)

• Leave can be taken concurrently or in consecutive blocks

• Minimum one-week blocks

Shared parental leave - eligibility

• Length of service26 weeks’ continuous service by 15th week before EWCWorked 22 out of 66 weeks prior to EWC...

• Economic Testearned minimum average specified amount for 13 of

those 66 weeks

• Working for same employer throughout

• Open to adoptive parents

Shared parental leave – what about maternity leave?

• 52 weeks of maternity leave default position for all employed women

• Must take two weeks’ compulsory maternity leave

• If both parents qualify, woman can end maternity leave and pay then, and share remainder

Shared parental leave - pay

• Shared parental pay to match statutory maternity payCurrently £135.45 per week

• Often enhanced pay for mothers...

• ...but what if no enhanced pay for fathers?Uptake likely to be low – unless this is finally the tipping point

towards a more “Scandinavian” approach?Risk sex discrimination claim from men if women are offered

enhanced pay? More likely than under APL regime

Shared parental leave – practical implications

• Organisational and administrative challengesFinding coverPotential fraud – establishing entitlement?

• Agreeing patterns of leave

• Sharing pay – avoiding discrimination claims

Shared parental leave – the new consultation (1)

• Government launched new consultation on 25 February 2013‘Shared Parental Leave and Pay – Administration

Consultation’

• Open until 17 May 2013

Shared parental leave: the new consultation (2)

Other parental leave proposals (1)

• Paternity leave and payTo remain at current level of 2 weeksAdditional paternity leave and pay to be

abolishedConsulting on notice periods

Other parental leave proposals (2)

• Adoption leave and payStatutory adoption leave to be ‘day one’ rightNo qualifying conditionsConsulting on notice in “fostering to adopt”

placements

Other parental leave proposals (3)

• Unpaid parental leaveIncreased from 13 to 18 weeks in March 2013Age limit to increase from 5 years to 18 years in

2015

Other parental leave proposals (4)

• Antenatal appointmentsFathers and partners of pregnant womanUnpaid time off to attend two antenatal

appointments with the mother

Thank you