Equal Opportunities Review - Issue 193 - October 2009

Author: Sue Johnstone

Work-life balance remains an important issue for employees, particularly carers, and this is reflected in the TUC's
equality audit 2009, which reveals that unions had most success in negotiating deals for working parents and carers.
The Government Equalities Office annual report also highlights the needs of carers and plans a campaign to raise
awareness of the right to request flexible working. In this issue, as well as the above reports, we have case studies on
three organisations that have successfully used flexible working to their benefit. ...(more)

Diary: Caster Semenya, gender identity and the Equality Bill

Topic(s): Equality & diversity
Author: Michael Rubenstein

As an avid sports fan, I have been enthralled by two stories in recent days: one uplifting, the other dispiriting.

Diary: Pay transparency consultation

Topic(s): Equal pay
Author: Michael Rubenstein

Kudos to the Equality and Human Rights Commission for getting out its first consultation on pay transparency
comparatively quickly. Whatever mechanism is adopted for reporting on the gender pay gap, it will be voluntary, at
least for the first four years, so cooperation with the business community is clearly a priority. ...(more)

Diary: Fact-checking discrimination law

Topic(s): Equality & diversity
Author: Michael Rubenstein

I recently returned from the United States, where for 10 days I read the New York Times, the newspaper of my youth.
Racy it may not be, but the New York Times draws a sharp distinction between fact and opnion.

Hertfordshire County Council: flexible work – an activity, not a place

Topic(s): Flexible working: policies/best practice
Author: Kate Godwin

Hertfordshire County Council is convinced that flexible working allows employees to best meet their own needs and
those of the organisation, and is therefore available to all employees regardless of their circumstances. Kate Godwin
examines the council's comprehensive approach to work-life balance.

Flexible working in the SME sector

Topic(s): Flexible working: policies/best practice
Author: Carol Foster

For small firms Loop Customer Management Ltd and Eden McCallum Ltd, work-life balance is not just an HR initiative
but a crucial business strategy. Carol Foster looks at how their flexible working policies have benefited both the
organisations and their employees.

EHRC sets out gender pay gap information options

Topic(s): Equal pay
Author: Michael Rubenstein

The consultation issued by the Equality and Human Rights Commission on the information that private sector
employers will be asked to provide in order to report on their gender pay gap suggests a range of possible options: the
overall average pay gap between male and female employees; the gap by reference to grade; by reference to job
description; or a combination of these factors. ...(more)

Distinction between discriminatory motivation and discriminatory motive

Topic(s): Age: direct discrimination; Race: direct discrimination; Religion or belief: direct discrimination;
Sex: direct discrimination; Sexual orientation: direct discrimination
Author: Michael Rubenstein
The EAT has reviewed the law relating to proof of direct discrimination, pointing out that whereas a finding of
discriminatory motivation is required where the act complained of is not inherently discriminatory, a benign motive is
irrelevant. Amnesty International v Ahmed (13 Aug 2009, EAT)

‘Piggyback’ claims can be brought

Topic(s): Equal pay: like work, defences
Author: Michael Rubenstein

The EAT has ruled that male workers employed on comparable work to that of women who have brought equal pay
claims can bring contingent claims comparing themselves to the women. Hartlepool Borough Council v Llewellyn (24
Jun 2009, EAT)

Failure to disclose full medical history was not misrepresentation

Topic(s): Disability: mental health
Author: Michael Rubenstein

The High Court has dismissed a local authority's claim of nearly £1 million in damages from its former managing
director for making negligent or fraudulent misrepresentations in her medical questionnaire by failing to disclose that
she had a history of mental illness. Cheltenham Borough Council v Laird (15 Jun 2009, HC)

Short report: Disability discrimination

Topic(s): Disability: meaning of disability
Author: Michael Rubenstein

It was open to a court hearing an employee's claim that he was entitled to an early retirement pension on grounds that
he had become permanently incapable to hold that a previous finding by an employment tribunal that the employee
was not disabled within the meaning of the Disability Discrimination Act acted as an issue estoppel making it
impossible for the claimant to satisfy the burden of proving that he was permanently disabled. So holds the Court of
Appeal in Booth v Oldham Metropolitan Borough Council (18 Aug 2009).

Short report: Religious belief or political opinion

Topic(s): Religion or belief: definition of 'religion' or 'belief'
Author: Michael Rubenstein

The Fair Employment and Treatment (Northern Ireland) Order 1998 prohibits "discrimination on the ground of religious
belief or political opinion". The facts of McConkey v The Simon Community (20 May 2009) specifically concern political
opinion, which, of course, is not protected by the comparable British legislation, but there is guidance from the House
of Lords that also extends to discrimination on grounds of religion or belief.

Requirement to work weekends was not indirect sex discrimination

Topic(s): Flexible working; Sex
Author: Sue Johnstone

An employment tribunal holds that a requirement for part-time employees to work two weekend days every four weeks
did not amount to indirect discrimination, as the claimants could not show that weekend working put women at a
particular disadvantage. Carr and McManus v The Chief Constable of Lincolnshire Police Force (4 Aug 2009,
ET/20600564/08, ET/20600565/08)

Refusal of homeworking was not indirectly discriminatory

Topic(s): Flexible working: discrimination; Sex
Author: Sue Johnstone

An employment tribunal in this case finds that the employer's refusal to allow the claimant to work from home,
although it put women at a particular disadvantage, was a proportionate meansof achieving a legitimate aim.
McKinnon v Automated Control Services Ltd (28 Jul 2009, ET/3104607/08)

Refusal to allow job-share was not justified

Topic(s): Flexible working: discrimination; Sex: indirect discrimination
Author: Sue Johnstone
The employment tribunal finds that the respondent's refusal to allow an administrative assistant to reduce her hours or
to allow her to job share was because of a "disinclination" to change rather than for practical reasons. This was not a
justification for indirect sex discrimination, as required by the legislation. Savory v The Governing Body of St Cyres
School (25 Jun 2009, ET/1601607/08)

Requirement to inform when working was not discrimination

Topic(s): Flexible working: discrimination; Sex
Author: Sue Johnstone

A claimant resigns, apparently in the belief that she was being asked to work fixed hours, but an employment tribunal
finds that the employer had not prevented the employee from working flexibly, and had only requested that she inform
her employer when she was working, in accordance with the employer's lone workers policy. Chappell v (1)
Betteklean Ltd (2) Wallis (30 Jul 2009, ET/1200364/09)

Tribunal required statistical evidence of childcare responsibilities

Topic(s): Flexible working: discrimination; Sex: indirect discrimination
Author: Sue Johnstone

An employment tribunal rejects claims of direct and indirect sex discrimination where the respondent reduces the
number of part-time posts, leaving the claimant with no job. The tribunal, in relation to indirect discrimination, states
that it had not been presented with any statistical evidence that the requirement to work full time would be a particular
disadvantage to women in these circumstances. Atkins v Poundworld Retail Ltd (22 Jun 2009, ET/2500816/09)

Withdrawal of adjustment led to discrimination

Topic(s): Disability: duty to make reasonable adjustments
Author: Sue Johnstone

As a result of the respondent's vigorous enforcement of its "look" policy, an employee with a prosthetic arm was
discriminated against in that there was harassment of her by one manager and, in effect, the removal of a reasonable
adjustment when that manager told the employee to leave the shopfloor for breach of the look policy because she was
wearing a long-sleeved cardigan, even though the employee had been given permission to wear the garment. The
tribunal criticised the respondent's lack of awareness of diversity issues, in particular in dealing with disability. Dean v
Abercrombie & Fitch (11 Aug 2009, ET/2203221/08)

‘Disfigurement’ was not a disability

Topic(s): Disability: meaning of disability
Author: Sue Johnstone

An employment tribunal, using a visual test, concludes that the claimant was not disabled as the employment judge
could not see any "severe disfigurement". Griffiths v Lancashire County Council (17 Apr 2009, ET/2408001/08)

Claimant found to be disabled despite employer’s perception of abilities

Topic(s): Disability: meaning of disability
Author: Sue Johnstone

An employer's perception of an employee's abilities to carry out day-to-day activities were found to be wrong by an
employment tribunal. It concluded that although the claimant, who wore an ileostomy bag, had adjusted her lifestyle to
minimise the impact, the consequences of the claimant's condition had a substantial impact on her daily life. O'Brien v
Nottingham Building Society (26 May 2009, ET/2603452/08)

Employee able to attend grievance meetings was disabled

Topic(s): Disability: meaning of disability
Author: Sue Johnstone

An employee with mental ill health was found to be disabled within the meaning of the DDA, even though she was
able to attend grievance meetings and put together detailed documentation to support her case. Cullum v Mid
Staffordshire General Hospitals NHS Trust (19 May 2009, ET/1301521/08 and ET/1306739/08)

Gender pay gap in the financial services sector

Topic(s): Equal pay: statistics and reports
Leading finance companies are paying their women employees around 80% less in bonuses than they pay men, finds
an inquiry by the Equality and Human Rights Commission.

Transferable maternity leave for parents

Topic(s): Parental rights: maternity rights, paternity rights, parental leave

The Government has announced new proposals that will give families greater flexibility in how they use maternity and
paternity leave.

More Government support for people with mental health problems

Topic(s): Disability: mental health

Thousands of people with mental health problems will get extra support managing their condition to remain in the
workplace, Jim Knight, Minister of State for Employment and Welfare Reform, has announced.

Union success for working parents and carers

Topic(s): Equality & diversity: policies/best practice

The aspect of equality on which most trade unions report success in negotiations is for deals covering working parents
and carers, according to the TUC 2009 Equality Audit.

Weak firms benefit from female directors

Topic(s): Sex: statistics and reports

Firms with weak governance would benefit from having more women on the board, concludes new research from the
London School of Economics and Political Science (LSE).

Government focuses on women and carers

Topic(s): Equality & diversity

Narrowing the gender pay gap is a key priority in the coming year for the Government Equalities Office (GEO), the
policy department responsible for the Government's overall strategy and priorities on equality issues, according to its
latest annual report.

One-third of employees report having problems at work

Topic(s): Equality & diversity

Some 34% of respondents to a new survey from the Department for Business, Innovation and Skills say they have
had a problem at work. In the past two years these problems mainly involved employment rights (24%), unfair
treatment (13%), discrimination (7%) and bullying and harassment (7%).

EHRC guidance on revising disability equality schemes

Topic(s): Disability: disability equality duty

The Equality and Human Rights Commission has published detailed guidance to help public authorities complete their
first three-year review of their disability equality scheme (DES). It covers topics such as what the three-yearly revision
involves and what needs to be included.

Parents struggle with up-front childcare costs

Topic(s): Parental rights

More than half of parents (58%) find it difficult to meet up-front childcare costs, reveals a new survey from the Daycare
Trust.

Employers not ready for an older workforce

Topic(s): Age: policies/best practice; Disability: policies/best practice

The majority of employers are not ready to make the adjustments needed to address hearing loss among older
employees, reveals a new report from the charity RNID. According to the charity, hearing loss affects 55% of people
over 60.
Negative attitudes towards mental illness
Topic(s): Disability: mental health

More than half (56%) of survey respondents would not employ someone because of their mental illness, even if they
considered the person to be the best candidate for the job, finds a new study from "Time for Change", the mental
health campaign run by charities Mind and Rethink.

Recently published
Topic(s): Disability: mental health

Acas has published its latest policy discussion paper, From stress to distress: the impact of the economic recession
on mental health at work.