Employment Eye Wednesday 17 November 2010

1. Employment EyeWednesday 17 November 2010 The Equality Act 2010 An age-old problem? Val Lockhart

2. CONTENTS • Reprise Age PC, relevant prohibited acts, obligations at recruitment, liability and enforcement (5 mins) • Sideburn v Aberchem Ltd – the likely claim and defence (5 mins) • Some relevant cases (10 mins) • Myths and (my)reality of the Equality Act (10) • Avoiding Sideburn v Aberchem Ltd - what they did wrong, and how to get it right (15)

3. Age PC • ‘Age’ defined by ref to age group – when people fall within the same age group, they share the PC of ‘age’ • Age groups can be wide or narrow (‘people under 50’, people in their mid-40s) or relative (‘people older than we are’, ‘middle-aged’) or contextual (‘youthful’, ‘the grey workforce’) • All ages protected

4. Direct and Harassment • Direct – a person A discriminates against another B if • Because of ‘age’ • W treats B less favourably than A treats (or would treat) others • Except where • direct age discrimination can be justified • Occupational Requirement • Other express permitted exception • Harassment Unwanted conduct related to age Which has the purpose or effect of either • Violating a person’s dignity or • Creating an intimidating, hostile, degrading, humiliating or offensive environment

5. Obligation to job applicants and employees • Employers must not discriminate against or victimise job applicants in: • The arrangements they make for deciding who should be offered employment • In the terms on which they offer employment, or • By not offering employment to the applicant • ‘Arrangements’ – policies, criteria, practices, tools used in the R&S process, decision processes, scores matrices, adverts, application systems, interviews • Unlawful for employers (or agents such as OHS providers) to ask any job applicant about disability or health prior to (conditional) job offer • 6 exceptions including reasonable adjustments during recruitment process, monitoring, ‘function intrinsic to the job’ • No standalone claim, but can be used to draw inference re BOP • (Designed to ensure that disabled applicants assessed purely on merit, but applies to all) • Employers (or agents) must not harass job applicants

6. Liability • Employers liable for discrimination/ harassment / victimisation carried out by their employees or agents (eg: agencies, or OHS providers) • Whether or not they know about or approve of the acts • Unless took all reasonable steps to prevent (not just ‘practicable’) • Employee or agent committing discriminatory act personally liable • In cases where employer has reasonable steps defence • In cases where employer also held liable • Even if employee not know act unlawful (new), unless • Reasonably relies on employer saying is lawful • Person (including employee) knowingly aiding a discriminatory act personally liable unless reasonably relies on employer saying is lawful

7. Enforcement • ET jurisdictions – Part 9 (Work), Part 10 (relationships ended, instructing and aiding), OPS declarations • (draft) Code of Practice express reference to internal dispute resolution ‘to avoid having recourse to an ET’ • Procedure for obtaining information • Burden of Proof • C must prove facts from which ET could decide, or draw an inference that, an unlawful act has occurred • ET hears all the facts • if prima facie case then burden shifts to R • R to prove on balance of probabilities, that did not act unlawfully • if explanation is inadequate or unsatisfactory, ET must find act unlawful

8. Remedies • Make a declaration as to the rights of the parties • Award compensation to C for any loss suffered • Make an ‘appropriate’ recommendation – that R takes specified steps to obviate or reduce the adverse effect of any matter relating to the proceedings on C and / or others who may be affected • Often focus on processes • Not contractually binding • Failure to comply can result in • Increased compensation awarded to C, or order for compensation if none awarded earlier) • Used in evidence against R in subsequent cases • Award interest on compensation • Award expenses if appropriate (failure to comply, ‘vexatious, abusive, disruptive or otherwise unreasonable’ action in bringing proceedings, or that bringing or conducting the case was misconceived )

9. Sideburn v Aberchem – the facts? • Job advert uses age-related terminology ‘youthful enthusiasm’ • Remaining criteria are vague and open to subjectivity • Interviewer’s early responses to Mr S abrupt and unwarranted • Despite Mr S’s attempts to address questions, interviewer distracted and uninterested • Not asked for his CV, so no level playing field on career background, experience • 90% of questioning relating to stereotypical assumptions of ‘older people’ • Blatant and continuous reference and direct questions relating to Mr S’s age • Ignoring Mr S’s attempts to address relevant job related matters • Unlawful questions relating to Mr S’s health • Challenging his answers to the health questions • Interviewer comparing Mr S with her own grandfather, in pejorative terms • Refusing to pick up on Mr S’s clear offence at the end of the interview

10. The claim? Direct discrimination By treating Mr S less favourably because of age in • The arrangements they make for deciding who should be offered the Sales Rep job, and • By not offering Mr S the job Harassment By subjecting Mr S to unwanted conduct related to age With the purpose or effect of either • Violating his dignity or • Creating an intimidating, hostile, degrading, humiliating or offensive environment for him Who’s the Respondent? Aberchem Ltd Alison Lumgair, personally?

11. The defence • BOP – prima facie case made out? • Prove no less fav treatment because of age? • Show there was, but that treatment can be objectively justified? • Was the conduct which was unwanted and age-related? • Show that the conduct of the interview did not have the purpose of violating etc? • Show that the conduct ought not reasonably be considered as having the effect of violating etc? • No liability because took all reasonable steps to prevent employee’s conduct • BOP – prima facie case made out? • Prove no less fav treatment because of age? • Show there was, but that treatment can be objectively justified? • Was the conduct which was unwanted and age-related? • Show that the conduct of the interview did not have the purpose of violating etc? • Show that the conduct ought not reasonably be considered as having the effect of violating etc? • No liability as carried out tasks in normal course employment / emplr advised conduct was lawful

12. Compensation • C put in the position s/he would have been in, but for the unlawful conduct (MOD v Cannock, 1994 ICR 918) • (In cases of unintended indirect discrimination, only where another remedy is not more appropriate) • Awards against individuals • Financial loss • Past loss, from date of act • Future loss, expected to be incurred following hearing • Injury to feelings - Vento guidance (Vento v CC West Yorkshire No 2 2003 ICR 318) • Top band, most serious cases, lengthy campaign of harassment (up to £30k) • Middle band, serious cases not falling into highest band(up to £18k) • Lower band less serious cases eg: one-off or isolated occurrence (up to £6k) • Less than £500 to be avoided • Aggravatedand exemplary damages (avoiding overlap between awards) • (Award for failure to notify (6-month retiral notification letter) – up to 8 weeks pay)

13. Costs of getting it wrong? Costs relating to • the pre-hearing procedures • preparation • hearing itself • legal advice and representation • reputation damage • workforce dissatisfaction costs • loss of knowledge and skills • confidence of line managers • supporting employees personally sisted as R, and finally • the award

14. Some relevant cases McCoy v James McGregor & Sons Ltd – IT(NI) 19.12.07 (237/07) Canadian Imperial Bank of Commerce v Beck – EAT 24.8.10 Chappell v Vital Resources Ltd – ET Case no 1301251/07 Lyons v The Leeds Teaching Hospitals NHS Trust – ET Case no 1803471/07 Ferguson v Anglia Water Services – ET Case 1500997/07

15. MAIN MYTHS THEMES • Complicated – hundreds of things you can’t do • Managers can’t just make a decision anymore and get on with things • Lose the right to manage – can’t ask legitimate questions, hands tied behind managers’ backs • Encourages grievances, complaints and claims • Serial litigants and ambulance chasers • Increases costs to businesses – systems, admin, awards • All about being PC and undermines business performance • Managers can’t manage anymore • Encourages complaints and litigation • Harms business

16. Pick of the Pops ‘The Equality Act is a dangerous joke’ …The likely result is it will poison relationships between colleagues and employer-employee. It urges us all to view ourselves as victims in need of state intervention to police our working lives BigBrotherWatch Invisible Man is a woman's best friend …First, women won the right to the same pay as a man doing the same job. Then came entitlement to equal pay for different work done by a man if the work was of equal value. Now, under the new Equality Act, women will be entitled to claim the same pay as someone who does not exist www.dailymail.co.uk Bannatyne: 'Equality Act will damage honest employers' …Then there's the 'Third Party Harassment' section, which is beyond a joke. In fact, it's enough to give an employer a sense of humour failure. It means that any member of staff can sue their employer if they take offence to office banter, even if it has absolutely nothing to do with them. Think how many times a day you could sue your employer if you were so minded. The Telegraph

17. Purpose of Equality Act? • ‘Consolidates, harmonises and clarifies existing piecemeal anti-discriminatory primary and secondary legislation’ • The European dimension – social justice, tripartite social partners approach • Atlee, 1946 – The NHS ‘not just to provide services to the sick, but to make a healthy nation’ • Not just about combating discrimination, but also to promote healthy (fair)workplaces • Fits with HR values and approaches over the decades • Compliance (rights and obligations) V good PM practice (relationships and expectations)

18. HR APPROACHES… • The ‘psychological contract’ – from Schein to Guest • Intrinsic performance – from Kohn to Brown • Fair treatment – from Equal Opportunities to Diversity • Employee relations – from Hawthorne to Macleod • Stereotyping -> prejudice –> discrimination from controlling behaviour to shaping values? • CSR as part of employer branding

19. What’s good about the Equality Act?The 3 Themes again! • Support enforcement of rights and obligations (more streamlined and consistent) • In a way which reflects employers’ needs and circumstances (provides flexibility to manage treatment) • All comes down to OJ • If is handled in appropriate way (management style) • Encourages practices which support change within workplaces – cultural change and change in management practice • ‘because of’ • Burden of proof • All reasonable steps • Liability for the acts of others • (ETs’ power re recommendations)

20. Inhibitors Drivers • Inconsistent management styles based on attitudes of individual managers • Poor trust levels • Reactive decision-making • Poor or opaque communication • Low levels of advocacy • Command and control cultures • Conflict within teams • Value statements and policies enforced consistently • Believing manager • Feeling informed about what is happening and why • Freedom (encouragement?) to voice ideas (and feel listened to) • Participative and consultative cultures • Workers feel treated with respect, problems dealt with

21. Sideburn v Aberchem – the facts? • Job advert uses age-related terminology ‘youthful enthusiasm’ • Remaining criteria are vague and open to subjectivity • Interviewer’s early responses to Mr S abrupt and unwarranted • Despite Mr S’s attempts to address questions, interviewer distracted and uninterested • Not asked for his CV, so no level playing field on career background, experience • 90% of questioning relating to stereotypical assumptions of ‘older people’ • Blatant and continuous reference and direct questions relating to Mr S’s age • Ignoring Mr S’s attempts to address relevant job related matters • Unlawful questions relating to Mr S’s health • Challenging his answers to the health questions • Interviewer comparing Mr S with her own grandfather, in pejorative terms • Refusing to pick up on Mr S’s clear offence at the end of the interview

22. EHRC (draft) Code of Practice – Part 2 • Ch 16 – Avoiding discrimination in recruitment • (Ch 17 – Avoiding discrimination in employment) • Ch 18 – Equality policies and practice in the workplace • (Ch 19 – Termination of employment)

23. Chapter 16 – avoiding discrimination in recruitment (1) • Defining the job • accurate, sufficient and objectively justifiable job descriptions and person specs (NB: importance of language) • Health or fitness requirements (and other PCP) objectively justifiable • Job adverts accurate and avoid suggestion of or intention to discriminate (or ORor +ve action) • Standardised, objective application process, with minimal personal information for shortlisting • Standardised shortlisting process using more than one person, objective marking system, using only relevant job-related information

24. Chapter 16 – avoiding discrimination in recruitment (2) • Selection, assessment and interviewing • processes which avoid stereotypical assumptions or prejudice • Objective and fair processes which treat applicants equitably • Records retained which track decision processes and outcomes • Selection tests and assessment centre tools to be well-designed, related only to the job in question, applied to all candidates (bar H&S or RA) and objectively justifiable • Interviews most vulnerable to stereotyping and discriminatory judgements • Interviewer awareness • Objective scoring method • Questions solely job-related • Avoid questions related to PCs (unless OJ) • References, eligibility to work in UK, health issues and other personal issues addressed on conditional job offer • Feedback to shortlisted, unsuccessful candidates

25. EHRC COP – Part 2 • Ch 17 Avoiding discrimination in Employment Avoiding disputes and conflicts (Ch 17 CoP) • Embed culture of dignity and respect within workplace • Action to resolve workplace disputes and conflict at early stage • Facilitate dialogue and communication • Processes for dealing with grievances • Intervene to prevent discrimination / take action on identifying it • Ch 18 Equality Policies in Practice Planning and implementing an equality policy • Contents • Promotion and communication • Responsibilities • Training • Monitoring and reviewing

26. Other Guidance • Avoiding liability for harassment (Ch 10, Part 1, EHRC CoP) • Have a policy on harassment • Notify employees, agents and third parties that harassment is unlawful and will not be tolerated • Include terms in all contracts requiring adherence with policy • Encourage employees to report incidents • Take action on every complaint • ACAS Guidance – Age in the Workplace - ‘What to do if someone complains’ • Formal and informal routes • Find out what happened • ADR • Taking steps if employer finds was unlawful discrimination • Taking steps if find there hasn’t been discrimination

27. HOW ABERCHEM MIGHT HAVE AVOIDED CLAIM • Properly planned and implemented Equality Policy • Basic job analysis identifying tasks and selection criteria • Standardised application and interview processes with job-related questions by competent personnel • Good records of process, decision-making and outcomes • Candid and sensitive feedback to the candidate • Clear and well communicated Harassment Policy • Examples of how diversity / fairness is managed positively within company • Providing a forum to hear his concerns? • Demonstrable measures to show how Alison Lumgair acted outwith the course of her employment

28. CONCLUSIONS • Equality Act endorses range of progressive HR practices – demands nothing new • CoP consistent with existing good practice • Impact on 3 levels • Outcomes – defence, cost avoidance, psychological contract gains

29. References and contact details EHRC (Draft) Code of Practice on Employment http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employment_code_05.10.10.pdf ACAS Employer’s Guide – Age in the Workplace http://www.acas.org.uk/CHttpHandler.ashx?id=588&p=0 Government Equalities Office Guidance http://www.equalities.gov.uk/equality_act_2010.aspx CIPD Diversity Guidance http://www.cipd.co.uk/subjects/dvsequl/general/divover.htm Val Lockhart odia@subsea7.com or tel 01224 526431