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3 Things We Learnt In Law This Week (3 January 2019)

UK Government Annouces New Code Of Practice To Tackle Workplace Sexual Harassment 

A new statutory Code of Practice will be developed by the Equality and Human Rights Commission in order to guide employers on their legal responsibilities regarding sexual harassment in the workplace. This was one of 12 actions recently announced by the UK government as it makes confronting workplace harassment a priority.

The announcements are in response to the July 2018 recommendations of the UK Women and Equalities Committee, which called for (1) putting sexual harassment at the top of the UK government’s agenda; (2) requiring regulators to take a more active role in tackling harassment; (3) making enforcement processes work better for employees by setting them out in the Code; (4) cleaning up the use of nondisclosure agreements (NDAs) used in employment contracts and settlement agreements; and (5) collecting robust data on sexual harassment in the workplace at regular intervals.

On 18 December, the UK Government Equalities Office published a package of 12 announcements regarding its intention to tackle sexual harassment in the workplace. Most significant was the announcement to introduce a new statutory Code of Practice (Code) to tackle sexual harassment at work. The new statutory code of practice on sexual harassment will be developed by the Equality and Human Rights Commission and the Government will also carry out awareness raising work with ACAS, the EHRC and employers on how to prevent and address sexual harassment at work. Other measures include consultation on the use of non-disclosure agreements, a new legal duty on employers to prevent sexual harassment at work, strengthening and clarifying the laws on third party harassment in the workplace, exploring the evidence for extending tribunal time limits for Equality Act 2010 cases and whether further legal protections are required for interns and volunteers. 

Supreme Court Gives Guidance On Unfavourable Treatment For The Purpose of Disability Discrimination

In the case of Williams v Trustees of Swansea University Pension [2018] UKSC 65, the Supreme Court has upheld the decision of the Court of Appeal that a disabled employee had not been treated unfavourably when he was granted early ill health retirement at the age of 38 and his benefits were calculated with reference to his part-time salary notwithstanding that the employee had reduced from full-time to part-time hours as a result of his disability. 

Mr Williams commenced employment with Swansea University in June 2000. He suffers from Tourette’s syndrome and other conditions that satisfy the definition of a “disability” under the Equality Act 2010. During the course of Mr William’s employment, his hours had reduced from 35 hours a week to 17.5 hours a week. This reduction was made at Mr William’s request as a reasonable adjustment because of his disability. Mr Williams applied for ill-health early retirement in May 2013. His application was successful. Under the University pension scheme, Mr Williams was entitled to certain payments, without any actuarial reduction for early receipt. These were calculated with reference to his actual salary at the date of retirement and the length of service if he had continued in his current employment until the age of 67.  Those payments were calculated with reference to his reduced working hours. Mr Williams raised a claim against the University and the pension trustees. He argued that this constituted discrimination arising from his disability and was unfavourable treatment in consequence of his disability.

The argument before the Supreme Court was based on the fact that Mr Williams had only been working part time as a result of his disability, and that the unfavourable treatment in question was the use of the part time salary in the computation of the pension enhancement. The Supreme Court unanimously dismissed the appeal. Ultimately, in determining whether there has been unfavourable treatment for the purposes of section 15 of the Equality Act 2010, it is necessary to first establish the treatment in question. Lord Carnwarth stated that the treatment in question here was the early award of the pension (and not the manner in which it is calculated), and that there was nothing unfavourable or disadvantageous about that. If he had been able to work full time he would not be entitled to any early ill health pension at all. 

ACAS Publishes New Guidance on Performance Management

Acas published new guidance on performance management and treating staff fairly. It was published following research which found that only one in four organisations adapt their processes to consider staff with disabilities. The research findings also included one in ten employers said that their performance management system was demotivating for staff and only one in ten used their systems for planning and monitoring training and development.

The new guidance promotes the active consideration of workforce diversity and the Equality Act 2010 provisions when assessing performance management arrangements. For instance, it requires employers to be proactive in making reasonable adjustments for employees with disabilities if the organisation’s performance measures would otherwise disadvantage such employees. The advice also suggests discussing and addressing problems as they arise, in line with previous advice to deal with matters informally in the first instance, and offers tips for avoiding favouritism. The last is perhaps the most interesting as it highlights the fact that whilst simple favouritism, absent a discriminatory basis, would not be covered by the Equality Act 2010 it could still make the process unfair, and thereby and action ultimately leading to dismissal unfair. As with all ACAS guidance it is not mandatory for organisations to follow but failure to do so may put the employer on the back foot in a tribunal hearing.

SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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