In the news

Careful thought

The TUC has just produced a new guide for trade unions on monitoring lesbian, gay, bisexual and transsexual workers.

It warns both employers and trade unions to think very carefully before embarking on a monitoring exercise.

Unless handled sensitively, the TUC says that any monitoring exercise could at best be a waste of time and at worst backfire, with staff refusing to answer the questions honestly. It says that employers and unions therefore need to work closely together to establish what is best for their own particular workplace.

For the guide, go to: www.tuc.org.uk/equality/tuc-9303-f0.cfm.

Equal pay reviews

Patricia Hewitt, the Trade and Industry Secretary, told parliament in January that the number of equal pay reviews carried out by large organisations by 2006 should exceed the Government's target.

She said that 15 per cent of large employers had carried out an equal pay review by November 2003, 10 per cent were in the process of doing one and 26 per cent were planning to do one. If these are all completed, the Government's 35 per cent target will be exceeded.

But it has now upped the ante - it wants 45 per cent of large organisations to have undertaken pay reviews by April 2008.

Better life chances

The Prime Minister's Strategy Unit has recently published a document that it claims will "transform the life chances of disabled people".

The report makes recommendations across four key areas: independent living, early years and family support, transition to adulthood and employment.

The government also promises to establish a new Office for Disability Issues, a strategic unit responsible for coordinating government work on disability and ensuring that this fits with the wider equalities agenda.

To view the report, Improving the Life Chances of Disabled People, go to www.strategy.gov.uk. Contact the Strategy Unit at strategy@cabinet-office.x.gsi.gov.uk or 020 7276 1881 to access the report in other formats.

Race equality

The Government has launched a strategy - Improving Opportunity, Strengthening Society - which it says will increase race equality and build a strong and cohesive society.

Measures outlined in the strategy include:

a greater commitment to working across government to boost race equality
closer working between the Commission for Racial Equality and public service inspectorates to monitor race equality
closer working between the Home Office and the Office of the Deputy Prime Minister to strengthen the leadership skills of those working in local authorities to tackle racism
a commitment to help young people from different backgrounds learn and socialise together
the introduction of a pilot Citizenship Day later this year to provide a focal point for activities linked to the concept of citizenship In addition to the strategy the Home Office has published a number of other documents, including:
Race Equality in Public Services - bringing together race equality data for the key public service areas
The Home Office Race Equality Schemes - setting out how the Home Office will meet its duties under the Race Relations (Amendment) Act 2000
The Home Office Diversity and Equal Opportunities Report bringing together findings from a range of diversity monitoring processes in the Home Office
"Trust and Diversity" - an analysis of Home Office Citizenship Survey data on the relationship between diversity in socioeconomic and ethnic groups and levels of trust in an area.

All these documents can be found at www.homeoffice.gov.uk.

Making more of ADR

ACAS (the Government's conciliation and arbitration service) has produced the first in a series of discussion papers.

Entitled Making More of Alternative Dispute Resolution, it is designed to stimulate debate about the use of ADR in employment relations, whatever the size of the organisation.
To contribute to the debate, go to
www.acas.gov.uk/publications/pdf/AcasPolicyPaper1.pdf (PDF file).

Temporary employee

In an important judgement, the High Court has said that a worker should be deemed to be a temporary employee, making his employer liable for his conduct.

In Hawley v Luminar Leisure, David Hawley (a fire fighter from Southend), brought a personal injury claim against a nightclub doorman who hit him so hard that he suffered permanent brain injuries.

The doorman was employed by ASE Security Services who were contracted to provide doormen to Luminar. The company denied liability on the grounds that the doorman was neither an employee nor a temporary deemed employee of Luminar.

However, the judge disagreed and said that the control that the nightclub had over ASE's employees was "such as to make them temporary deemed employees of Luminar for the purposes of vicarious liability."

Mr Hawley was backed by the FBU which instructed Thompsons.

Credit conflict

The EAT has handed down two conflicting decisions recently on whether unfair dismissal claimants should be credited for monies already received.

In Morgans v Alpha Plus Security Ltd, it said that tribunals must deduct any incapacity benefit in full from a compensatory award. In Voith Turbo Ltd v Stowe, on the other hand, it said that a claimant did not have to give credit for earnings in a new job although this coincided with the period of paid notice by the former employer.

This issue will therefore have to be resolved by the higher courts.

The way ahead

The decision of the High Court in Kaur v MG Rover Group Ltd (see LELR 89) that certain employees could not be made redundant has been overturned by the Court of Appeal.

It has said that a provision in a collective agreement that there would be no compulsory redundancies had not been incorporated into Mrs Kaur's contract of employment. It was an "aspiration" rather than a binding contractual term.

This was because of "the vagueness of the term and because any entitlement would depend on the activities of others in the workforce," the court said.

The court added: "In so far as the statement formed part of a bargain with the unions, the commitment was solely on a collective basis."

EAT says burden shifts to employer

In Webster v Brunel University, the EAT has overturned the decision by a tribunal about when the burden of proof shifts to the employer.

In this case, Ms Webster, an Indian woman, was having a telephone conversation with another employee when she heard someone else in the background use the term "Paki". It was not clear whether the person was an employee or a visitor.

The tribunal said that because she failed to establish that the person was an employee the burden of proof did not shift to the employer. The EAT has now said that once she established that the person could have been an employee the burden shifted to the employer. The decision has been appealed.

First sexual orientation ruling

Although he may not have welcomed the publicity, Rob Whitfield has become the first person to win a case under the Employment Equality (Sexual Orientation) Regulations introduced in December 2003.

In Whitfield v Cleanaway UK, he brought a claim against his employer on the basis that he had suffered a campaign of sustained abuse and homophobic insults. The taunts were made not just by co-workers but also by senior managers who, by their behaviour, indicated that they thought such discrimination was acceptable.

Mr Whitfield was awarded over £35,000 in compensation and his case has graphically highlighted the need for legislative protection for lesbian, gay and bi-sexual workers.