How many of your employees care for elderly relatives or those with disabilities?

You have probably got used to the idea that employees with 26 weeks’ service have been able to request flexible working since April 2007 provided they have caring responsibility. You may even have had requests from such staff and may have said “no” using one of the eight business reasons you are entitled to use under the Flexible Working Regulations such as productivity or customer care suffering. Whilst the flexible working regime in itself poses relatively little risk, provided you follow the correct procedures to meet with the employee to discuss their request, employers who refuse requests are perhaps unwittingly running the risk of discrimination arguments, with this area having become much more complex recently.

Since many carers are women, refusing requests for changes in working hours or patterns can amount to indirect sex discrimination, in which case you would need to be able to objectively justify the refusal or risk an award for unlimited damages. Furthermore, the case of Coleman v Attridge Law & Steve Law has recently set a further cat amongst the pigeons as regards all forms of discrimination. The facts of the case itself involved an employee with a disabled child who claimed she had been discriminated against and harassed by her employer on the grounds of her child’s disability (her complaints related to refusing to allow her to return to her role after maternity leave, failure to be given the same flexibility as employees with non-disabled children, using her child to manipulate her working conditions and not dealing with her grievances inadequately). The Employment Tribunal referred the question to Europe over whether discrimination by association should be protected, as our UK legislation only prohibits discrimination “against a disabled person”.

The Advocate General (whose opinion is usually followed by the European Court of Justice when it rules on the subject) has stated that direct discrimination and/or harassment by association is prohibited by the relevant Directive (Equal Treatment Framework Directive). The rationale put forward was that the dignity and autonomy of the (in this case) disabled person is still being disrespected if the behaviour is indirect. Just because the employee who is the object of discrimination is not disabled herself, makes no difference. The Directive protects against discrimination “on the grounds of” disability, and the “ground” which serves as the basis of the discrimination the employee suffers continues to be disability.

Although the case itself focussed on disability, the Advocate General indicated that the same principle will apply to any of the prohibited grounds listed in Article 1 of the Directive (namely religion or belief, disability, age or sexual orientation). This means that the Directive would, for example, protect a person from discrimination because he or she is married to a person belonging to a particular religious group.

On the face of it, the Disability Discrimination Act 1995 does not prohibit discrimination by association - so, if the ECJ agrees with the Advocate General, the next hurdle for Miss Coleman will be to see if the UK courts are prepared to interpret UK law by, for example, implying additional wording into the DDA to achieve the purpose of the Directive. The same will apply to equivalent claims under the Age Regulations, for example, when an employee who wants to care for their elderly relative asks to work flexibly. In the end, the Government may need to change the relevant legislation if necessary to bring it in line with the Directive.

What will you need to do? Right now, you may decide to wait and see what the outcome is, but assuming Miss Coleman is protected, you will need to amend your equal opportunities and flexible working policies to make it clear that you won’t tolerate this kind of discrimination. You will need to provide refresher training to line managers on dealing with flexible working requests and generally how to avoid discriminating, such as not making negative judgments about reliability for someone who asked in an interview for part-time work because they care for an elderly parent or making allowances when managing absence for someone who was off sick because their child had a medical condition such as asthma. That is not to say you will never be able to refuse flexible working requests or take action when someone has lots of time off work but you may need to make sure you treat requests consistently and consider these issues in the decision-making process.

Morgan Denton Jones LLP

Redundancy Masterclass hailed as a great success

The 3 partners of Morgan Denton Jones held an intimate training session for 13 organisations on April 10th 2008 which delegates gave top marks for. (We agreed to protect the anonymity of those in attendance for obvious reasons). When asked what was most useful about the event, feedback suggested it was the “practical approach to redundancy situations” and the “very clear and practical guidance provided”. For more information about the next Masterclass events email info@mdjlaw.co.uk

The Recruitment Best Practice event

Organised by Marble Recruitment at the Copthorne Hotel, Cardiff on Thursday 3rd April was attended by over 40 delegates from a variety of organisations. Anna Denton spoke about legal best practice and recent changes to the law on checking entitlement to work in the UK. Katey Mears held an open discussion on interview tips and techniques which proved very popular: Deborah Mumford of Penn Pharmaceuticals Limited said the session was “informative, interesting and easy to understand”. Richard Thorne, Group HR Manager for Admiral commented “It’s good to be reassured that we’re pretty much on the right track”.

The next event we are holding with Marble will be in July: for further information email info@mdjlaw.co.uk

With Government plans to double the number of apprenticeships, employers may need to brush up on the way apprenticeships work, says Anna Denton

Once upon a time apprenticeship involved a period of 7 years of living with and learning from your “master” under the auspices of a craft guild. Despite this system all but breaking down, the key elements of this archaic relationship persist: the core purpose is training, taking place over a fixed-term period during which the employer has restricted abilities to dismiss.

Whilst increased funding and incentives and the desire to plug the skills gap is attracting employers back to this model of engagement, they need to be aware of the special implications of such a relationship.

Firstly, in order for an apprenticeship to be formed it needs to recorded in writing, unlike a contract of employment which can come into being as a result of an oral agreement.

Secondly, the fixed term nature of the relationship needs to be appreciated. Unlike a normal employment relationship the employer cannot bring the contract to an end, for example, because of a downturn in work or because of a change in funding arrangements. If you did try and terminate the relationship earlier, you would not only face a claim for damages for the loss of wages for the rest of the fixed-term but also compensation for the loss of training and loss of status, the argument being that the apprentice is less employable because they did not complete their training. You could expect damages to be much higher than for unfair dismissal alone.

In addition, you will be expected to manage performance and absence issues in a manner which results in the apprentice achieving the required standards. Generally, you can only terminate the apprenticeship if their conduct is such that it makes it impossible for you to carry out the central purpose of the relationship ie:- teaching them their trade. This is a much higher threshold than you will be used to.

What should an apprenticeship agreement cover?

Apprenticeship is not only a relationship of employment but of learning and teaching, in fact the law views it as learning foremost with any work you get out of the apprentice as very much a secondary element. As a minimum therefore any written agreement should detail what skills the apprentice can expect to learn or the programme of training that will be put in place. The Agreement should make it clear what is expected of the apprentice and what will need to be demonstrated in order to be proficient enough to pass out of the scheme. For example, this might be the obtaining of externally assessed qualifications.

If you are not providing all the training yourself but a third party training provider is, you may want to put in place a tripartite agreement setting out what the apprentice can expect from the third party but at the very least you should not warrant the quality of training that that third party is responsible for, or leave yourself exposed to claims for failing to provide the training adequately, if this is out of your control. Unless otherwise stated you will be expected to help the apprentice to secure the relevant qualification to enable them to pursue a full-time career.

You may also want to consider the following provisions in any written agreement:-
· The length of the fixed-term the apprenticeship is to last for (there is no set period in the law);
· If the apprentice is under 18, signature by their parent or guardian;
· A probationary period prior to the commencement of the formal apprenticeship to make it easier to remove any unsuitable candidates at the outset;
· The appointment of a mentor or person with special responsibility for apprentices, who will take care of their welfare during the apprenticeship;
· Details of how progress will be reviewed and monitored and how regular this will be;
· The ability to terminate the relationship if the apprentice does not attain the necessary standards after a sufficient opportunity to do so;
· Requiring those who leave after the end of the apprenticeship to pay back certain training fees if they do not stay with you for a stated period of time; and
· Arrangements to transfer the apprentice in the case of a redundancy situation or at least to make reasonable efforts to find alternative work for them to enable them to complete their training.

The signing of this written agreement should be witnessed by independent witnesses who are able to confirm that the signatories entered into the agreement freely and willingly.
What other obligations will I have towards an apprentice?

Your duties in discrimination law, and in the case of public authorities, wider equality duties, will apply to apprenticeships just as much as to other forms of worker. In particular employers need to take care not to apply age limits to apprenticeship schemes, especially as the Government has lifted former age restrictions on funding. Other eligibility criterion should be reviewed to ensure they are not indirectly age discriminatory, for example, requiring recent GCSEs.

You must comply with the National Minimum Wage Act 1998 – whilst there are provisions entitling you to pay lower rates to younger staff and a lower rate for those in “accredited training” that will only last for 6 months. Likewise you will have obligations under the Working Time Regulations as regards rest breaks and paid holidays and the usual health and safety obligations akin to those for all staff.

However, you should also make sure you that you entitle your apprentices to the same benefits as other staff, unless you can objectively justify treating them differently. Clearly if they are treated differently you could risk discrimination claims including under the legislation protecting Fixed-term Employees.

Anna Denton, Morgan Denton Jones LLP
adenton@mdjlaw.co.uk

When was the last time you trained your line managers about harassment related issues?

In recent times employers have probably been more concerned to ensure their staff are aware of the risks of encountering liability for age discrimination or for discrimination on the grounds of religion or belief or sexual orientation to have been focussed on the law relating to sex discrimination. However recent developments in the law could have significant impact for employers who are responsible for what goes on in the work place when it comes to harassment, unless the employer can be seen to have taken all reasonable steps to prevent such harassment occurring.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amend the Sex Discrimination Act 1975 (SDA) following a High Court's decision in last year in Equal Opportunities Commission v Secretary of State for Trade and Industry (, being yet another occasion on which a court has ruled that the UK has failed to implement EC law properly. The 2008 Regulations, which came into effect on 6 April 2008, widen the definition of sex harassment, and make employers liable in certain circumstances for the harassment of an employee by a third party, amongst other things.

Under the SDA a person harasses a woman where, "on the ground of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her". The 2008 Regulations amend the definition to encompass "unwanted conduct related to her sex or the sex of another person" that has the necessary purpose or effect. This is a wider test: for example, an employee would be entitled to complain about sexist remarks directed at someone else or about jokes relating to another woman, such as a celebrity. Would your staff realise they shouldn’t be making comments in work about the size of Jordan’s bust in the latest copy of Hello magazine?

The law also widens an employer’s liability for harassment of an employee by a third party such as a visitor, customer, supplier or other service user. The employer is responsible where "A third party subjects the woman to harassment in the course of her employment"; this would cover customers in a restaurant making lewd remarks to a waitress or builders working on your roof woolf-whistling at your employees as they come to work. However liability would only arise if "The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so"; and "The employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party". Thus in our example, if the restaurant manager had been informed by other staff of previous comments made by the diner, and failed to warn the diner that such comments would result in him being barred from the restaurant or failed to put signs up in the restaurant warning customers not to be offensive to staff, the restaurant owner could be liable for unlimited damages.

Many readers will say “didn’t we already know this”? after the famous Bernard Manning racial harassment case Burton v De Vere where waitresses were abused by the notoriously rude comedian. Indeed, there are similarities in this law but actually Burton was much wider. The hotel owner didn’t need to know of any previous acts of harassment; the core issue was whether they could reasonably have prevented the harassment in question. Under this new test, even if the third party in question is notorious for having harassed employees in the past and the employer takes no action to prevent further harassment, a new "victim" will have no remedy until she herself has been harassed three times which seems rather odd.

Morgan Denton Jones
April 2008