In other news………….

POSITIVE ACTION

A recent Employment Tribunal case illustrates how employers can inadvertently discriminate against employees whilst using positive action as a tool to boost diversity in the workplace.

In this case, a job applicant, a white heterosexual male, successfully brought a claim for discrimination.

The employer had incorporated positive action into its recruitment process by implementing a simple “pass” or “fail” after an assessment and interview. It was found that this created an artificially low threshold, meaning substantial numbers were considered as equally qualified when this was clearly not the case.

The Tribunal made it clear that selection must ultimately be based on merit. It is only when faced with candidates of equal merit that the employer may take into account a protected characteristic to tip the balance, provided it is a proportionate way of addressing the under representation or disadvantage.

COMPENSATORY REST BREAK

The Court of Appeal has allowed an appeal from an employer finding that it had provided “adequate compensatory rest” to its shift workers.

Most workers are entitled to an uninterrupted rest break of 20 minutes when they have worked for more than 6 hours. Where a worker is unable to take this break, in special circumstances, compensatory rest of equal length must be taken.

The Court ruled, however, that compensatory rest need not, necessarily, be an uninterrupted period of 20 minutes.

What is “adequate compensatory rest” will, of course, depend on the circumstances.

AGENCY WORKERS

The Court of Appeal dismissed an appeal from an end-user and held that it was liable to pay compensation for the failure to give agency workers equal terms after 12 weeks of employment.

In this case, although the end-user concerned had already given the shortfall in pay to its agency believing that this would be passed to the workers, the Agency failed to do so.

The Agency then went into liquidation, having received the money from the end-user but the payments remained outstanding to the workers!

The Court of Appeal found the fact that the end-user had already paid the shortfall was irrelevant. The bottom line was the workers were not at fault and the end-user, which had chosen to work with that particular Agency, remained responsible to the agency workers.

If you have any queries or concerns please contact Andréa Hopson or Rachel Stephens.