Damages for "stigma" loss flowing from the pursuit of a claim

The Court of Appeal has held, in the case of Chagger v Abbey National plc, that an employer who unlawfully discriminates in dismissing an employee can be liable for compensation reflecting the stigmatising consequences of the dismissal and the proceedings, for example where the employee finds it difficult to get new employment because he is suing his former employer.

Mr Chagger was made redundant from his position with Abbey National, and an employment tribunal found that he had been discriminated against on racial grounds.  Mr Chagger was awarded compensation of £2,855,650, which included an award of £1,325,322 for future loss of earnings.  This was on the basis that he would never again be able to find employment in the financial services industry, following evidence being led from four companies who had refused to employ him, at least in part, because he had begun legal proceedings against Abbey. 

The Court of Appeal concluded that the original employer must remain liable for so-called stigma loss.  The unlawful actions of the third party employer did not break the chain of causation flowing from the original employer's discriminatory act.  Stigma loss will not be a separate head of claim, but will be taken into account by a tribunal when calculating future loss of earnings and the employee's ability to mitigate. 

In calculating loss, tribunals can apply the "Polkey" principle and ask whether Mr Chagger would have been made redundant anyway, even if there had been no discrimination.  If so, the award can be reduced.

Impact on employers 

• In principle, this decision opens the doors for Claimants to recover increased damages from their former employer if the stigma of having brought discrimination proceedings prevents them being employed in future.  The amounts involved could be significant.
• Before this decision, an employee had to bring separate victimisation claims against a prospective employer who turned down his job application because he was suing for discrimination. Now, though, that will not be necessary as he can look to his old employer to compensate him for the damage to his career.
• This type of claim will be difficult to prove and the Claimant will need to show "very extensive evidence of attempted mitigation, failing to result in a job".  It is relatively rare that an employee genuinely finds himself unemployable in his particular field because of legal action taken against a former employer.
• Where the discrimination claim relates to dismissal, employers can use the argument that the employee would have been dismissed in any event to seek to reduce the compensation awarded.

10 December 2009

Courts address conflict between religious belief and sexual orientation

The EAT has held that a Christian relationship counsellor, dismissed because he did not feel that he could provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs, failed in his claim for discrimination (McFarlane v Relate Avon Limited).

The EAT held, following its earlier decision in London Borough of Islington v Ladele (which concerned a Christian registrar who refused to conduct civil partnership ceremonies), that Mr McFarlane's  dismissal did not amount to direct discrimination under the Religion or Belief Regulations.  He was not dismissed because of the beliefs he held but because, on account of those beliefs, he would not commit to carry out the full range of duties required of a Relate counsellor.

Although the requirement to make their services available without discrimination to same-sex and heterosexual couples put persons of the same religion or belief as Mr McFarlane at a particular disadvantage, Relate was able to justify the indirect discrimination.  It had the legitimate aim of providing services equally to all users and requiring staff to participate in the provision of services was a proportionate response, even if it created a conflict with the religious beliefs of certain individuals. 

Impact on employers

• Employers often have to balance competing interests in the workplace and may face difficulties where an employee's beliefs cannot be reconciled with their duties or the employer's obligations to other employees, its customers or service users or its own business objectives.
• Employers can take some comfort from the distinction that the courts continue to draw between the holding of a belief and the actions taken by an individual because of their beliefs. Where such actions are discriminatory, intimidatory or affect the individual's ability to do their job, the employer will not necessarily fall foul of the Religion or Belief Regulations if it disciplines, dismisses or refuses to employ the individual because of those actions.
• Employers should note that the issue of justification will always be sensitive to the particular facts.  Here, Relate could legitimately insist that all employees provided services on the same basis, because to do otherwise would conflict with the very principles that Related espoused.  However, in other circumstances, the position may not be so clear cut.  Employers faced with conflicting interests should take a common sense approach and (if appropriate) consult with the employees concerned to consider whether there are any accommodations or changes to duties that can be implemented to resolve the conflict.
• The case of Ladele is awaiting a decision by the Court of Appeal and we will report any further developments.

10 December 2009

TUPE: compensation for failure to provide information in good time

In Cable Realisations Ltd v GMB Northern, the EAT upheld a protective award for failure to provide relevant information "long enough before a transfer" and confirmed that information must be provided to representatives in sufficient time for voluntary consultation to take place, even where there is no statutory obligation to consult affected employees under TUPE.

In the course of the sale of its business, Cable provided the union with the information required by regulation 13(2) of TUPE on 15 August, 19 days in advance of the sale.  However, Cable's factory then closed for its annual two-week shutdown, during which time no consultation could take place.  Neither Cable nor the buyer envisaged taking "measures" so there was no statutory requirement to consult under TUPE.  However, because of the shutdown, there was little opportunity for any consultation to take place, if the employees had wanted to consult, before the TUPE transfer took place on 3 September. 

The EAT found that Cable was in breach of TUPE by failing to provide the required information long enough before the transfer and that transfer date could have been deferred to allow an opportunity for consultation.  It upheld a protective award of 3 weeks' pay per employee.

Impact on employers

• The requirement to provide information under TUPE in good time before a transfer is a standalone obligation, breach of which could result in the maximum protective award of 13 weeks pay being made.
• Even if there are no "measures" about which to consult, employers should provide information in good time to allow consultation to take place.  This needs to be built into the transaction timetable.

10 December 2009

Protection of volunteers – discrimination and unfair dismissal

Two recent cases have confirmed that a genuine volunteer does not have the protection of the law on discrimination or unfair dismissal.

In X v Mid Sussex Citizens Advice Bureau, the claimant was a part-time unpaid volunteer with Mid Sussex Citizens Advice Bureau (CAB), working under a volunteer agreement which was expressly stated to be "binding in honour only" and not to be a contract of employment.  She was asked to cease to attend the CAB as a volunteer, and brought a claim on the grounds that she was discriminated against because of her disability. 

The EAT struck out her claim holding that volunteers are not protected by either the DDA or the European Framework Directive. Her position was not covered by the definition of "employment" because of the lack of a legally binding contract, nor did the prohibition on discrimination as regards "occupation" extend to cover voluntary workers. The EAT held that "occupation" refers to qualifications and professional requirements needed for access to employment or promotion.  Further, the EAT held that the claimant was not a "worker" in terms of the DDA or the Directive.  In the claimant's case, there were insufficient obligations on the parties to create the mutuality of obligation that is a fundamental element of an employment relationship.

The principles in the case extend to discrimination on all other grounds. 

In Roberts v Salvation Army, the tribunal held that it did not have jurisdiction to hear an unfair dismissal claim from a former Salvation Army officer whose agreement with the Salvation Army specified that there was no intention to create a legally binding relationship.  Captain Roberts signed an agreement which stated that he gave himself "in response to the call of God and of my own free will to the work of the Salvation Army".  The agreement also provided that the parties' relationship was spiritual, not legal, no contract of service was created and the parties had a genuine intention to avoid any legal rights and obligations

Impact on employers

• These decisions will come as a relief to the many organisations that rely on volunteers (it is estimated that approximately 1.75 billion volunteer hours were worked in 2007/08 in the UK).
• However, it should be noted that the decisions are limited to volunteers without legally binding contracts. 
• Volunteers who contract personally to do any work may be protected from discrimination by virtue of being workers or even employees. 
• Charities and other organisations that rely on volunteers should review their current practices and documentation in relation to the use of volunteers.  Two areas of concern in particular are the termination of volunteer arrangements and the preparation of relevant documentation so that the volunteer is not elevated to the protected status of worker or employee.

10 December 2009

Holidays and sick pay – where are we now?

From our recent E-Bulletins on the evolving issue of how statutory holiday relates to sick leave, you will know how complex this area has become.  This article is an update following another recent ECJ case on the subject, Pereda v Madrid Movilidad SA, and looks in particular at how the position may differ for public sector and private sector employers.

Note that this article refers to the statutory right to holiday under the Working Time Regulations (WTR).  Rights in relation to any contractual holiday over and above the legal minimum depend upon the terms of the worker's employment contract or any collective agreement, policy or practice operated by the employer.  Please click on the blue headings below to view the guidance on each question:

• Does a worker accrue holiday entitlement when they are on sick leave?
• Can a worker choose to take holiday when they are off sick?
• Must a worker who is off sick at the end of the holiday year be allowed to carry over unused entitlement?
• Can a worker be required to take holiday during a period of sickness absence?
• Can a worker who falls ill during a pre-planned holiday request that the holiday be reallocated?
• How much must a worker be paid for holiday taken during sick leave?
• What if a worker leaves or is dismissed while they are absent due to illness?
• What about "back pay" for holidays from previous years?
• What should employers do now?

Does a worker accrue holiday entitlement when they are on sick leave?
Yes.  Any worker who is off sick for any period will accrue holiday under the WTR during their period of absence.  Even if a worker is off sick for an entire holiday year, or for a large part of a holiday year, he will continue to build up his entitlement to paid statutory holiday under the WTR (28 days since 1 April 2009). 

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Can a worker choose to take holiday when they are off sick?
Yes.  Workers on sick leave can give notice to their employer that they wish to take holiday, even though they are on sick leave at the time the holiday is taken.  They may wish to do this once their sick pay runs out.  An employer can refuse such a request by giving an appropriate counter-notice.  However,  if this would prevent the worker from taking holiday in the relevant leave year and they are not allowed to carry forward their unused days (see below), the employer may face a claim for compensation for breach of the WTR.

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Must a worker who is off sick at the end of the holiday year be allowed to carry over unused entitlement?
This is unclear.  Recent ECJ rulings conflict with the position in the UK under the WTR.

The ECJ position is that, if workers are prevented from taking holidays because of sickness, they must be allowed to take them on their return to work, even if this means carrying them over into the next leave year.

However, the WTR expressly prohibit carry over of any of the 20-day minimum holiday entitlement under the Directive.  Employers may, but are not obliged to, permit workers to carry over the additional 8 days' statutory entitlement under the WTR to the next holiday year, provided this is set out in a "relevant agreement".  If no such agreement is in place, the WTR effectively prohibit carry over of the full 28-day statutory entitlement.

This conflict between the ECJ rulings and the WTR may result in differing treatment for public and private sector workers:

• Public sector workers may be able to rely directly on the ECJ decisions to carry over to a later holiday year unused statutory holiday entitlement that accrues during sick leave (Stringer, Pereda).  This right definitely applies to the 20 day minimum annual leave entitlement under the Directive, but its application to the additional 8 days of annual leave under the WTR is also arguable.
• Private sector workers do not have such a right to carry over.  Therefore until the WTR are amended, private sector employers should be able to rely on the WTR to prevent carry over of any unused statutory entitlement accruing during sick leave.  However, given the direction the Courts are taking in litigation about holiday rights during sickness, employers who deny workers on sick leave the right to carry forward unused holiday may become liable to compensation claims, including claims for years of accrued but unused holiday.

Both the Directive and the WTR prohibit payment in lieu of holidays except on the termination of employment, so employers cannot legitimately seek to prevent untaken holidays building up or being carried over by paying in lieu of any untaken holiday at the end of each holiday year.

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Can a worker be required to take holiday during a period of sickness absence?
This has not been decided, but, by implication, if a worker can designate days of sick leave as annual leave, an employer should also be able to give notice to a worker under the WTR that they must take holiday on particular dates, even if the employee is on sick leave, provided that the employer pays the associated holiday pay.

The Pereda case may cast some doubt on this, but we consider Pereda to apply to particular circumstances (see below). 

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Can a worker who falls ill during a pre-planned holiday request that the holiday be reallocated?
A key point about the case of Pereda was that the employee was already off sick with a long-term injury when the period of pre-planned annual leave began.  It has been suggested that the case could technically allow a worker who fell sick after the commencement of their holiday to make a request to reclassify the holiday as sick leave, thus allowing any worker who catches a cold during their holiday abroad to reclaim some of their holiday time.  However, in our view, Pereda should be taken as applying only where long-term sickness prevents a pre-planned holiday being taken.

• Public sector workers may be able to rely on Pereda directly, but employers can use sickness reporting procedures to combat abuse and insist on satisfactory evidence of the illness.
• Private sector workers cannot rely directly on this decision and so cannot insist on leave being re-allocated due to illness.

Until the issue is further clarified, all employers would have some justification in refusing to reallocate holiday "spoiled" by illness, unless, as in Pereda, the illness was already known about when the holiday came round.  A case by case approach is best for the time being as making changes to policies that are published to employees is likely just to flag up problematic issues. 

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How much must a worker be paid for holiday taken during sick leave?
A worker must be paid at their normal rate of pay for any statutory holiday that they take during a period of sick leave, even if they have used up any contractual or statutory sick pay they are entitled to receive.

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What if a worker leaves or is dismissed while they are absent due to illness?
As is often the case, the worker will be entitled to be paid in lieu of any outstanding accrued statutory holidays for the current holiday year at their normal rate of pay.  Employers may also face claims upon termination for pay in lieu of outstanding holiday for a previous year or years, in which a worker has not taken holidays  due to sickness absence (see below for more details).

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What about "back pay" for holidays from previous years?
There are now a number of ways in which workers may claim for previous years' statutory holiday, which they have been unable to take due to sickness absence, either while still employed or upon termination of employment.

• Public sector workers may be able to rely directly on the carry-over provisions established in Stringer (see above).  Where they have been prevented from taking holiday due to sickness absence in previous years, they may succeed in arguing that their statutory entitlement should be carried over into the current holiday year and treated in the same way as the current year's entitlement, either by allowing the worker to use the carried over portion while off sick, allowing them to save it for their return to work, or making a payment in lieu upon termination.
• Private sector employers may be able to rely upon the WTR to prevent carry over of any unused statutory holidays from previous years.  If, however, the Courts continue in their current direction, such reliance may not be successful.  Employers may be particularly vulnerable to claims for back-dated holiday if they have not actively encouraged the worker to use their holidays while on sick leave.

The Stringer decision opened the way for all workers to claim for previous years' unpaid holiday pay as unlawful deductions from wages, if they can show that there has been a series of "deductions" or failures to pay over a number of years and the claim is brought within three months of the last deduction.   It may not be necessary for the worker to have requested holiday during or at the end of each holiday year to be able to make such a claim.  The chain of deductions may, however, be considered broken, thus denying the worker the chance to bring any claim for previous years, if the employment has ended more than three months into a new holiday year, and the worker receives holiday pay for the current year.

Even if a worker cannot claim their unpaid holiday pay in the employment tribunals under the WTR or as an unlawful deduction from wages, they may be able to bring a claim for breach of contract in the civil courts, where the limitation periods are five years in Scotland and six years in England.  If a contractual provision for pay in lieu of untaken holiday upon termination is not limited to the holiday year in which termination takes place, it is possible that an employee could claim, under contract, for unpaid holiday relevant to their entire period of employment (See the unusual case Beijing Ton Ren Tang (UK) Ltd v Wang in which an employee successfully claimed 131.5 days of holiday pay from previous years).

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What should employers do now?

• Communicate problem areas to key line management to ensure awareness within the business.
• Examine whether policies need to be amended, particularly for carry over of holiday. For example, if private sector employers want to rely on the "use it or lose it" provisions of the WTR to prevent carry-over of unused entitlement, they should make it very clear that workers must take their holiday entitlement in the relevant holiday year, even if they are on long-term sick leave.
• Review permanent health insurance arrangements.  If a worker is in employment and receiving benefits under a PHI scheme, employers should consider providing that the PHI benefit payment includes holiday pay. This may be subject to future challenge following the Stringer decision, but in the meantime it seems inappropriate to pay holiday pay to a "permanently" incapacitated employee.
• Review any terms in workers' contracts that relate to contractual holiday over and above the statutory minimum to ensure, where possible, that the terms limit accrual and payment in relation to long-term absence and that additional costs are limited to those arising out of the minimum statutory entitlement.  In particular, they should review terms that relate to payment in lieu of unused holiday upon termination of employment, to ensure that such pay in lieu is limited to holidays accrued in the year in which termination occurs.
• Be prepared to consider the facts and circumstances of each worker on long-term sick leave on a case by case basis, bearing in mind potential issues of disability discrimination. For example, if carry over is permitted, it may be possible for an employee returning after long-term sick leave to use outstanding holiday entitlement as part of a phased return to work.
• If they have not already done so, put in place procedures to ensure that sickness absence is properly managed and that employees are helped to return to work where possible, or dismissed when it becomes clear that they cannot return.

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10 December 2009

Corporate manslaughter and health and safety sentencing guidelines

The Sentencing Guidelines Council for England and Wales recently published draft guidelines for the sentencing of corporate manslaughter and health and safety offences causing death. The Council has recommended a minimum penalty of £500,000 for corporate manslaughter and £100,000 for health and safety offences causing death. The guidelines also provide for publicity orders for convictions for corporate manslaughter.  It is likely that the Scottish courts would apply a similar approach to sentencing for corporate homicide and health and safety offences.  For more information on the draft guidelines and their application, see our briefing.

10 December 2009

Corporate governance and regulation of remuneration

The FSA Code on remuneration practices comes into force on 1 January 2010.  See our Corporate Finance E-Bulletin for more detail.

Walker review
The final recommendations of the Walker review of corporate governance in UK banks and financial institutions have now been published. These relate, amongst other things, to remuneration of "high end employees", namely executive directors and other employees who perform a "significant influence function" or whose activities have or could have a material impact on the risk profile of the firm.  The recommendations include that firms should:

• disclose the remuneration of employees earning £1m or more.  Disclosure should be in bands, noting the number of employees in each band, the areas of business activity in which they are involved (where possible) and, within each band, the main elements of salary, cash bonus, deferred shares, long-term incentive awards and pension contributions;
• use deferred incentive payments as the main mechanism for adjusting risk, with the specific recommendations that:
  
  • at least half of variable pay in any year should be in the form of a long-term incentive scheme;
  • short-term bonuses should be paid over a three year period, with no more than a third payable in the first year; and
  • "clawback" mechanisms should be used to recoup payments in circumstances where there has been misstatement and misconduct;
• ensure that the remuneration committee has responsibility for remuneration policy and the oversight of remuneration packages for high end employees not on the board.

The Treasury has already introduced the Financial Services Bill (see above), which permits regulations to be made in relation to the disclosure of remuneration and gives the FSA powers to regulate remuneration. 

The Financial Reporting Council is consulting on a review of the Combined Code, which is to be renamed the UK Corporate Governance Code, and the proposed amendments reflect those of the principles behind the Walker recommendations that the FRC considers to be appropriate to all listed companies

NAPF advocates pay restraint
Continuing the theme of restraint, the National Association of Pension Funds (NAPF) has written to the chairmen of FTSE 350 companies restating its view that there should be restraint in executive pay and that executive remuneration should be aligned with the long-term interests of shareholders.  For more information on NAPF's recommendations, see our Corporate Finance E-Bulletin. 

10 December 2009

Case round up

In this round up of recent cases, we consider EAT decisions on whether overtime or shift payments count towards the national minimum wage, what constitutes a religious or philosophical belief, and when employers are exempt from the duty to make reasonable adjustments under the DDA.

Overtime or shift payments do not count towards the national minimum wage (NMW)
The EAT has confirmed that, in determining whether a worker has received the NMW, the amount by which any overtime or shift payment exceeds the lowest hourly rate payable to a worker should not be taken into account.  In Hamilton House Medical Ltd v Hillier, the claimant's basic pay was below the NMW, but in practice she received an enhanced rate of pay because she only ever worked nights and weekends.  The EAT considered that the NMW Regulations require a worker's basic salary, excluding enhancements, to be above the minimum.  Employers should not be able to rely on the fact that an employee chooses to work shifts in order to receive enhanced pay to avoid its obligation to pay the NMW.

Spiritualism can be a religious or philosophical belief
Following the decision that a belief in climate change can be protected by the 2003 Religion or Belief Regulations, the EAT has now confirmed that a belief in the use of mediums is similarly entitled to protection from discrimination.  A former police officer with Greater Manchester Police claimed he was unfairly dismissed because he is a spiritualist and believes that messages from the dead can help in criminal investigations.  The EAT accepted that his beliefs in life after death and the use of mediums had sufficient "cogency, seriousness, cohesion and importance" to fall into the category of a philosophical belief for the purposes of the Regulations.  However, following a full hearing, the tribunal has since held that the police officer was not discriminated against on the grounds of his beliefs and instead found that his dismissal was due to inappropriate behaviour.

When is an employer exempt from the duty to make reasonable adjustments?
The DDA provides that an employer is not required to make reasonable adjustments to a provision, criterion or practice (PCP) where the employer does not know, and could not reasonably be expected to know, that the person is disabled and likely to be placed at a disadvantage in relation to the PCP.  In Secretary of State for the DWP v Alam, the EAT set out a two-stage test for determining whether this exemption applies.  First, the duty to make reasonable adjustments will not apply where an employer does not know both that an employee is disabled and that his disability is liable to place him at a substantial disadvantage.  Second, the employer must also show that it could not reasonably have been expected to know both of these facts.

10 December 2009

Legislative round up

Queen's speech – Equality Bill, Agency Workers, Financial Services Bill
The government has outlined its proposals for three employment-related bills in the next Parliament, namely the Equality Bill, the Agency Workers Regulations and the Financial Services Bill. 

The Equality Bill
It is anticipated that the Equality Bill will receive Royal Assent in Spring of 2010.

The Agency Workers Regulations
As we reported last month, the government recently launched a second consultation on draft Regulations to implement the Temporary Agency Workers Directive. The Regulations will come into force in October 2011.

The Financial Services Bill
HM Treasury has now published the Financial Services Bill which, if enacted, will give the Treasury power to make Regulations concerning the disclosure of remuneration and will require the FSA to require regulated companies to have remuneration policies that are consistent with effective risk management and international standards, including those adopted by the G20.  The Bill will also give the FSA the power to prohibit terms in employment contracts that encourage excessive risk-taking or include multi-year remuneration guarantees and to require any payments made under such void arrangements to be clawed back.
 
Consultation on amendments to implement recast European Works Council Directive
Under the existing European Works Council Directive, multinationals based in the EU are required to keep employees informed of developments at a European level. The government has launched a consultation on implementation of the re-cast Directive, which improves the enforcement provisions that currently exist. The aim of the changes is to increase the uptake of Work Councils.

Consultation on increase in maximum penalty for breach of DPA to £500,000
The government is currently consulting on plans to introduce a maximum penalty of £500,000 for serious breaches of the Data Protection Act.  This penalty will only apply in the most serious DPA breaches, such as those that are likely to cause either substantial damage or distress. Additionally, the Commissioner must be satisfied that the breach was either deliberate or that the data controller knew or ought to have known that there was a risk of breach.  For more information, see our IT and Data Protection E-Bulletin.

Right to request time off for training
The Apprenticeships, Children and Learning Act received Royal Assent on 12 November. Under it, employees with more than 26 weeks' service will have the right to request time off work to undertake study or training. Employers will have to consider all applications seriously, however employees will only be permitted to make one application every 12 months. The measures will come into force on 6 April 2010 and will affect employers with more than 250 employees. From April 2011, the right will be extended to all employees, regardless of the size of their employer.

10 December 2009

News round up

In this round up of recent news stories we look at new rules on advertising jobs for skilled workers, the employer jailed for presenting forged documents to the employment tribunal, a new database with details of serial litigants, new guidance on preventing workplace harassment and violence, and the European Commission's action against the UK for failing to fully implement European equality laws.

New rules on advertising for skilled workers
With effect from 14 December 2009, the period for which an employer must advertise a job in order to show that it cannot be filled by the UK resident labour force will increase to four weeks.  This need not be a continuous period of four weeks but may be split into shorter blocks.  Only once this requirement has been satisfied can a vacancy be offered to a non-EEA national.

Employer faces jail for perjury in the tribunal
In a warning shot to anyone tempted to be overly creative in the discovery of documents or to avoid the truth in order to bolster their defence to a claim, an individual has been sentenced to 4 months in prison for perverting the course of justice during employment tribunal proceedings. He presented a fake contract and disciplinary warning letter in defence of proceedings brought by a former employee, who claimed she had never been given a contract to sign.  Not only does the individual now face time in prison and have a criminal record, but the employer lost the tribunal case with the employee receiving an award in excess of £29,000.  Honesty is always the best policy!

Serial litigants exposed
Employers sometimes wonder if a claim against them is being brought by a serial litigant, making money because employers will often settle rather than face the time and costs involved in tribunal proceedings.  Now they can find out.  An online database has been launched, which in return for a fee will provide information upon whether a particular individual has won or lost other tribunal cases.

Guidance on preventing workplace harassment and violence
Collaborating for the first time, the TUC, CBI and Partnership of Public Employers have produced guidance on preventing workplace harassment and violence.  ACAS and BIS also support the guidance, which implements a framework agreement of the European Union social partners and aims to raise awareness and to provide a framework for identifying and managing problems.

Commission claims UK equality laws do not properly implement equality directives
The European Commission has sent a Reasoned Opinion to the UK government claiming that its equality laws fall short of properly implementing the Equal Treatment and Framework Directives.  In particular, in relation to equal treatment, the Commission complains that the definition of indirect discrimination does not cover potential discrimination, and that the exceptions to the principle of non-discrimination on the grounds of sex are too wide.  In relation to discrimination on the grounds of religion or belief and sexual orientation, the Commission considers that UK legislation is at fault because there is no ban on instructions to discriminate and the exceptions on the basis of sexual orientation for religious employers are too wide.  If the Commission is not satisfied with the UK's response it can refer the breach to the ECJ.  The government has an obvious opportunity to rectify any breaches in the Equality Bill currently on its way through parliament.

10 December 2009