Proposed employment changes

This page outlines proposed changes relating to the employment rules. The proposed changes would not necessarily apply to Northern Ireland.

Resolving disputes

The government is to repeal the current statutory dispute resolution procedures, probably from April 2009. Tribunals will instead have power to adjust compensation if the employer or employee unreasonably fails to comply with (normally) the ACAS Code of Practice on disciplinary and grievance procedures. A consultation draft of the new ACAS Code is at www.acas.org.uk/CHttpHandler.ashx?id=880&p=0. This has purposely been kept short. ACAS will also publish fuller, free-standing, non-statutory guidance providing supporting information on handling workplace disciplinary and grievance issues.

The legislative changes are contained in the Employment Bill currently before Parliament - http://services.parliament.uk/bills/2007-08/employment.html

At present, the rules require written notification of the issue to the other side, a meeting between the two sides, and (if appropriate) an appeal. The tribunal can increase or decrease an award of compensation where the procedures are not complied with. In practice it has been found that the procedures tend to lead to disputes becoming formalised, and lawyers getting involved, at an earlier stage than had previously been the case.

The changes follow recommendations by the Gibbons review, and the subsequent consultation document issued by the government setting out measures to take the review forward: www.dti.gov.uk/consultations/page38508.html. The TUC has welcomed the Bill, saying it will ensure that workers who have been caught out by the complicated process of applying to take a grievance to a tribunal and who have made minor technical mistakes along the way are no longer barred from getting their cases heard - TUC Press Release 7/12/07 (link to TUC website).

June 2008 announcement on Equality Bill

In June 2008 (links on June 2008 announcement) the Government announced some proposed changes to strengthen enforcement of the DDA:

The new Equality Bill will give employment tribunals a wider power to make recommendations in discrimination cases. They will be able to make a recommendation even if it only benefits the wider workforce. This should help to prevent similar types of discrimination occurring in the future. At the moment a tribunal can only make a recommendation which benefits the individual who brought the claim - but often he will have left the organisation so that the Tribunal is left with no power to recommend anything. If the employer does not comply with a recommendation and a further claim is made, the tribunal can take the earlier recommendation into account, which may result in a tougher ruling.
The Government will also explore how it can ensure employers learn from tribunal judgments by looking to spread learning from individual cases in a systematic way

This extension of the power to make recommendations was recommended by all the (former) equality commisions, as something that would significantly improve the impact of cases on employers' poor practice (pages 12-13 of the DRC's A Framework for Fairness Response (on DRC website). The European and Human Rights Commission recommended that the new equality act should give employment tribunals in Great Britain certain powers which already exist in Northern Ireland, namely to recommend that the respondent 'take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on a person other than the complainant of any unlawful discrimination to which the complaint relates' - page 41 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).
The Government aims to support trade union equality representatives in their roles by building on previous initiatives.
The Government will consider the case for introducing representative actions in discrimination. It wants to see the findings and recommendations of the Civil Justice Council in this area - the Council is currently gathering evidence on the case for introducing representative actions. The Government recognises that currently, individuals who have been discriminated against have to shoulder the burden of bringing a claim. This carries financial, and emotional costs, as well as reputational risk. However, some discrimination is systemic and a number of employees may face the same kind of unfair treatment. Representative actions would enable bodies such as trade unions or the Equality and Human Rights Commission to take cases to court on behalf of a group of individuals as a single claim.

The DRC had recommended in A Framework for Fairness Response (on DRC website) (pages 5-7), that nterested parties such as trade unions should have the power to institute proceedings in their own name (or jointly with individuals) where there is a common problem affecting a number of people. This could help tackle 'group discrimination' and dismantle systemic discrimination. It said that representative actions can be useful for people who are unwilling or unable to bring claims themselves. The European and Human Rights Commission also supports representative actions "for certain types of cases" and subject to appropriate safeguards - pages 37-38 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

Further Disability Rights Commission and EHRC views on dispute resolution

The DRC, in its A Framework for Fairness Response (on DRC website), pointed to widespread non-compliance with the DDA and made the following further recommendations, which have not as yet been accepted by the Government:

The time limit for bringing an employment tribunal claim should be extended from 3 to 6 months. This would help people who simply do not know their rights, and also allow more time for informal resolution of disputes. (page 13)
Tribunals should be able to order reinstatement or re-engagement. It is an anomaly that this is possible for unfair dismissal claims but not under the DDA, and compensation is not adequate given the extreme difficulties disabled people can encounter in gaining alternative employment. (page 14) a)
The European and Human Rights Commission agrees with this recommendation, and also considers that a tribunal should be able to order that a person who has been repeatedly refused a job because of discrimination must be automatically offered the next equivalent post - pages 40-41 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

The European and Human Rights Commission also recommends that the results of employment tribunal and county or sheriff court discrimination cases should be easily accessible by members of the public. This is because reputation is a significant factor in influencing decisions by employers to avoid discrimination and to adopt good equality practice. Consideration should also be given to a system to refer findings of unlawful discrimination to any relevant licensing or qualification body. Pages 42-43 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

'Justification'

There are proposals for a new 'justification' test, so that employers have to meet a higher threshold to justify their actions. The employer would need to show that his conduct is a 'proportionate means of achieving a legitimate aim'.

This test has been used for some time as a defence to 'indirect discrimination' related to race or sex. For how the courts apply the test, see the EHRC website ("The legal test for justification in indirect discrimination cases").

The importance of the 'justification' test is that, if an employer can show 'justification', he normally has a defence to treating a person less favourably for a reason related to his disability (eg refusing to hire them, or dismissing them). The Government says that the new test will provide a higher threshold than the current DDA test applying to employment and vocational training. So employers would have a narrower margin of discretion.

The current 'justification' test is whether the employer's reason for less favourable treatment is material to the circumstances and substantial. This is quite a low threshold for employers to meet, partly because tribunals have refused to substitute their own decision as to whether the reason relied on by the employer is material and substantial. They have restricted themselves to deciding whether the reason was within the range of what a reasonable employer would have relied on as material and substantial. (More on current 'justification' test..)

The proposal is subject to consultation and is contained in the Green paper on proposals for a Single Equality Bill (para 1.46-1.53). The intention is that the different 'justification' tests for disability discrimination will be replaced by this single objective test, applying to service providers etc as well as employment.

The Disability Rights Commission supported a single objective justification test, particularly because of the low threshold which currently applies in employment cases. However, the DRC argued that the wording should be strengthened to reflect more closely EU directives. (A Framework for Fairness Response (on archived DRC website), p.33-36).

Victimisation

At the moment, victimisation generally requires that a person is treated 'less favourably' as a result of a 'protected act', such as bringing a DDA claim. In other words, there has to be a comparison with how someone else would be treated. It is proposed to remove the need to compare treatment with someone else. One might have the right simply not to be subjected to a detriment as a result of bringing a DDA claim, for example. This would be along the lines of other employment legislation.

The proposal is subject to consultation and is contained in the Green paper on proposals for a Single Equality Bill, para 1.60-1.62. The Disability Rights Commission supported the proposal (A Framework for Fairness Response (on archived DRC website), p.38).

Armed services and volunteers?

The Disability Rights Commision recommended that the armed services and volunteers should be brought within the scope of the DDA. In the case of the armed services, there could be a provision allowing discrimination for the purpose of ensuring the combat effectiveness of the armed forces. (A Framework for Fairness Response (on archived DRC website), p.41-42)

These recommendations are not as yet accepted by the Government.

Reasonable adjustment duty to be anticipatory?

The Disability Rights Commision recommended a proactive duty on employers to consider reasonable adjustments which may be required by disabled applicants or employees, similar to that which already applies in relation to service delivery and education. Employers would be required to think in advance about what reasonable adjustments they could make to remove barriers. Unlike service delivery, employees would be able to challenge potentially discriminatory rules before they had been put into effect.

For example, it may well be reasonable for an employer to provide for accessibility for disabled people in the specifications for a new telephone system which he installs. However, the costs of altering the system once in place might make a subsequent adjustment 'unreasonable' under current law. The anticipatory duty would not in itself be enforceable, but could be considered when an individual requires a particular reasonable adjustment.

This would help counter systemic discrimination, creating similar management thinking to that fostered by 'indirect discrimination' rules which apply to other grounds such as race and gender. (A Framework for Fairness Response (on archived DRC website), p.29-31).

New rules on disability-related enquiries before job offered?

The DRC believed that disability related enquiries before a job is offered should be permitted only in very limited circumstances. The DDA, it said, is proving inadequate in addressing recruitment problems. Asking questions about applicants' disabilities prior to job interview and selection enables employers who wish to discriminate to simply reject disabled applicants at an early stage. If an employer does not know that an individual has a disability, they will be unable to make prejudiced judgements on this basis. (A Framework for Fairness Response (on archived DRC website), pages 26-27).

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