30

Employment Law Series

Discrimination in the Workplace

the retirement age in the UK was axed in 2012. Have you seen any effects from this yet?

In our experience employers are either allowing employees to carry on working beyond 65 (until the employee decides to leave) or in some cases are preparing their managers to apply more strict performance management to employees as they near what would have been retirement age.

When the default retirement age was removed, employers had the choice of retaining a fixed retirement age or doing away with the notion of compulsory retirement. However if they did wish to retain a retirement age then in order to be able to defend claims of direct age discrimination employers would need to "justify" this by showing the retirement age was a proportionate means of achieving a legitimate aim. this is a difficult test to meet and as it would be decided in the event of a dispute on a case by case basis, it creates uncertainty. our experience is that employers are not prepared to take the risk and are in the main not attempting to keep a fixed retirement age, save in limited cases where a justification for a specific part of the business can be made out.

What are the main cases of discrimination in the workplace you see?

I have noticed an increase in the number of disability related discrimination claims and grievances in the workplace particularly around the requirement for employers to make "reasonable" adjustments to working practices to avoid a disabled person being placed at a disadvantage at work and around absence management at work. the perceived stigma about declaring oneself "disabled" seems to be less prevalent in the workplace (given the relatively low standard of proof required by the

www.lawyer-monthly.com

law to establish disability). also it is more common for employees to allege indirect sex discrimination to support applications for flexible working (particular those returning to work from maternity leave who wish to work part-time). I still see a surprising number of cases of harassment at work and in particular more recently regarding nationality in respect of Eastern European employees.

Last month, four christians who lost their individual cases at employment tribunals announced they are taking a combined case to the European court of Human Rights. What are your opinions on this?

Without going into the specifics of these cases, what we are seeing is uncertainty and challenge around the "manifestation" of religion or belief as opposed to merely having those beliefs and the right to which this manifestation should be protected where it potentially conflicts with the rights of others. there has also been development in the scope of which beliefs can be protected. Recently in the Redfearn case the Supreme court held UK law was in breach of the European convention on Human Rights because it did not make it unlawful for an employer to dismiss a driver who was a BnP member and held beliefs endorsed by that organization. Employers may be faced with a range of employees expressing opinions which may be contentious and divisive within the workplace and they will need to have to deal with this. For example what action will an employer be able to take if there is an altercation between an employee of a particular religious belief and an employee whose sexual orientation is one that religion does not approve of? or what if someone displays nazi symbols but seeks to argue they are protected from disciplinary action due to it being a philosophical belief.

JANUARY 2013

UK

Workplace discrimination has long been an issue, and the complexities and potential pitfalls are many. obviously this is an emotive subject for both employers and employees, and with legislation and case law evolving all the time, it is essential to have sound legal advice in order to stay compliant. to find out more, this month Lawyer Monthly speaks to alan chalmers, Partner in the Employment, Pensions and Benefits group at dLa Piper.

How do you think legislation can help?

the Equality act has been in place since 2010 and it harmonized much of the law to make it easier to understand and in theory easier to implement. However, case law develops all the time to interpret what is meant by statute. this means that there will always be uncertainty for employers when complying with the legislation or in particular when defending claims. By way of example, the test for indirect discrimination and the question of whether an adjustment made for a disability is "reasonable" or not are essentially subjective tests for a tribunal to assess in its opinion. this means employers can never be entirely sure they have done enough to comply with the law when for example not granting a flexible working request or when dismissing an employee off on long term absence. the UK government doesn't have much room to manoeuver when changing the legislation as the primary source for it is based on European directives. LM

contact:

alan chalmers Partner Employment, Pensions and Benefits Email: alan.chalmers@dlapiper.com