Backbench Move to Increase Redundancy Payments Clears First Hurdle

The Private Member’s Bill to increase the level of statutory redundancy payment has cleared its first Commons hurdle having received 85 votes to 17 after a second reading. The statutory payment is currently capped at £350.00 per week and the numbers of years’ service is capped at 20. It is estimated that the current limit is just over half of average earnings and the Bill is Labour MP Lyndsay Hoyle’s bid to link the limit to average earnings. With the number of redundancies increasing rapidly, the Government is under pressure to take action. Minister Pat McFadden has said that, whilst sympathising with its aims, the Bill was “flawed” and it would be a severe blow to employers who were already hit hard by the recession. Similarly, the British Chamber of Commerce said that the Bill will simply add to businesses’ cash flow problems.

Increases to Statutory Sick Pay and Maternity, Paternity and Adoption Pay

The draft Social Security Uprating Order 2009 has been published, containing the revised weekly rates of statutory sick pay, statutory maternity pay, statutory paternity pay and statutory adoption pay for 2009 – 2010. The draft Order states that from 6 April 2009 :-

1. The weekly rate of statutory sick pay will be £79.15 (up from £75.40).

2. The weekly rate of the other benefits will be £123.06 (up from £117.18).

Guidance on Harassment under the Race Relations Act 1976

In Richmond Pharmacy –v- Dhaliwal, the Employment Appeal Tribunal considered the necessary elements of harassment under the Race Relations Act and gave guidance for Tribunals to consider in its reasoning which is worthwhile for employers to understand. The case involved an Indian employee where reference was made by the employer to the possibility of her being “married off in India”. Whilst the remark was not intended to violate the employee’s dignity, the Employment Appeal Tribunal agreed that it had that effect. In considering such a case a Tribunal should focus on :-

1. Whether there was unwanted conduct.

2. Whether the purpose or effect of that conduct was to violate the person’s dignity (or to create an environment which was intimidating, hostile, degrading, humiliating or offensive).

3. Whether the conduct was on the grounds of the person’s race (or ethnic or national origins).

4. Whether, if the person felt their dignity had been violated (or that a hostile or intimidating environment had been created), it was reasonable for them to feel this way.

The case demonstrates that where the conduct consists of overtly racial abuse, the employer could be found to be acting on racial grounds even if that was not the intention.

Dismissals for Promoting Religious Beliefs is Not Religious Discrimination

In Chondol –v- Liverpool City Council the Claimant was dismissed for a number of reasons, including his employer’s belief that he had been inappropriately promoting Christianity to its service users. The Tribunal rejected Mr Chondol’s allegations that he was directly discriminated against and he appealed the decision. The Employment Appeal Tribunal dismissed the Appeal and endorsed the Tribunal’s finding that Mr Chondol was dismissed not on the grounds of his religion but on the ground of his employer’s perception that he was improperly voicing his religion on its service users.

Tribunal Confirms “Malcolm” Comparator Test Applies to Disability Related Discrimination in Employment

For many years the leading case on Disability Related Discrimination was Clark –v- TTG Ltd t/a Novocold in which it was held that the appropriate comparator for such a claim is not simply a non-disabled person, but someone to whom the underlying reasons where the Claimant’s treatment does not apply. Therefore, if a disabled person is dismissed for being off sick for 6 months, and that absence was related to their disability, the comparator would be someone (whether disabled or not) who had not been off sick for 6 months. This made it relatively easy to make out a claim on this basis. In a decision benefiting employers in London Borough of Lewisham –v- Malcolm the House of Lords has decided that a disabled person must compare themselves with a non disabled person who is otherwise in the same circumstances. Using the example above, a disabled employee who is absent from work due to illness and is dismissed must now compare themselves with an employee who is also absent from work for the same time due to illness but is not disabled. The Malcolm case clearly tips the balance in the employer’s favour. However, this situation is likely to be short lived. The Government has acknowledged that it is now difficult for employees to establish a claim of disability related discrimination and has proposed to use the forthcoming equality bill in order to remedy this situation and introduce indirect Disability Discrimination.