SEYMOUR-SMITH RESULT

The House of Lords delivered its opinion yesterday in Seymour-Smith.

The majority (Lords Nicholls, Goff and Jauncey) held that the increase in the qualification period for claiming unfair dismissal from one year to two years in 1985 DID have the effect that a considerably smaller percentage of women could claim unfair dismissal. Accordingly, it WAS indirectly discriminatory against women, although the "figures are in borderline country (Lord Slynn)".

However, they found that the Secretary of State had discharged the burden of showing objective justification for the increase - accordingly the increase was lawful and Mrs Seymour-Smith lost her case.

The minority (Lords Slynn and Steyn) held that the increase in 1985 did NOT have the effect that a considerably smaller percentage of women could claim unfair dismissal, thus there was no indirect discrimination.
Accordingly it was unnecessary to consider the issue of objective justification.

The full judgment is available from
http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000
217/seymou-1.htm

Age Discrimination

The government has launched a media campaign to combat age discrimination in the workplace, based upon raising the profile of the recent (non-statutory) Code of Practice on Age Diversity in Employment (issued on 16th June 1999 - see bulletin of that date).

The full text of the press release appears below...

AGE PREJUDICE? YOU'RE OLD ENOUGH TO KNOW BETTER
- HODGE

"It's time for businesses to wake up to the benefits that an age
diverse workforce can bring. We need to change the culture of a
society where a person's age consigns them to early retirement and
life on the dole. Outdated prejudices based on age are shortsighted.
All too often they mean that a company does not employ the best
person for the job," said Margaret Hodge, Minister for Employment and
Equal Opportunities today at the launch of a media campaign to
challenge age prejudice in the workplace.

Mrs Hodge continued:

"In the next ten years 40 per cent of the workforce will be over 45
but only 17 per cent will be under 24, so it makes sense for
employers to change how they think about older people now and give
them a chance. A number of leading edge employers are already doing
just that, including Tesco, B&Q and ASDA. They are reaping the
rewards from making good use of skilled and experienced workers.
They are enjoying business benefits from employing a diverse
workforce which reflects and is sensitive to their diverse customer
base."

Sharing a platform with Martha Lane Fox, Co-founder and Director of
lastminute.com and Howard Davies, Chairman of the Financial Services
Agency and Employers Forum on Age, Mrs Hodge made it clear that there
was a lot to do, even to get people to acknowledge that they have
these prejudices.

Mrs Hodge added:

"Drive, energy, and good ideas are not the prerogative of any
particular age group. The people sharing the platform with me today
are a testament to that fact, as are other examples I've come across.
Tom Hopperton who works at Tesco's hyperstore in Pitsea, Essex roller
skates around the huge store at speed collecting forgotten items for
customers - at 70!

"Diana Hoff, aged 55, recently became the oldest woman to row
single-handed across the Atlantic. The journey took 113 days -
challenging the assumption that older people lack strength and
stamina. These are just two examples - we all know others who defy
the traditional image of older people.

"Since we launched the Code of Practice on Age Diversity in
Employment last year, over 40,000 copies have been sent out - so we
know this is an important issue for many employers.

"The Government cannot tackle age prejudice on its own. We are today
launching a national media campaign to raise the profile of the
benefits of an age diverse workforce, and the Code promotes good
practice. With the help of our partners in business, we can make sure
that more people wake up to the message that age prejudice should not
be tolerated - and is damaging to business and society as a whole."

Martha Lane Fox of lastminute.com said:

"The Age Diversity Campaign is about encouraging us all to think
differently and negate the stereotypes and perceptions that exist in
the workplace. The point is, today's business climate is exciting,
challenging and more than ever requires an outlook that is forward
thinking and open-minded.

"I suppose in some ways I do represent those changes and I
wholeheartedly believe that nobody can afford to ignore the business
benefits and opportunities, which should be open to all not just the
few."

Howard Davies said:

"The EFA welcomes the Government's Age Diversity campaign as a
positive step forward in tackling what is a very real and pressing
issue in Britain today. It is important that we recognise the
benefits of age diversity, both to businesses and the nation's
economy.

"It is too often assumed that older workers have high rates of
absenteeism, poor technical skills, cost more and think rigidly,
while it is assumed that younger workers are poor attendees,
irresponsible and inexperienced. Research shows these stereotypes to
be completely fictional. Our ambassadors today are testament to this
fact. This awareness campaign is designed to encourage everyone to
really take on board the fact that age diversity is good news for
everyone in Britain."

Jeff Rooker, Chairman of the Inter-Ministerial Group for Older People
said:

"We want to help people remain active as they grow older and for
society to value their contribution. "Ageism" is a signficant barrier
that we must eradicate from all areas of daily life. This will be a
top priority for the Ministerial Group for Older People to tackle
following the International Year of Older People."

Consultation Document on Compulsory Trade Union Recognition

The government has published its consultation document on two aspects of compulsory recognition of trades union following a workplace ballot (to be brought in shortly under the Employment Relations Act 1999). The consultation document is attached to this message in Word for Windows format.

The consultation document, to which replies are required by 20th March 2000, deals with:

• a Code of Practice on a union's access to workers voting in recognition or derecognition ballots organised by the Central Arbitration Committee (CAC) under the statutory procedure; and,

• the Secretary of State's order specifying a method of conducting collective bargaining, which the CAC must take into account when it imposes a method of conducting collective bargaining on an employer and a union under the statutory recognition procedure.

H of L decision in Glasgow City Council v Marshall

The House of Lords handed down its opinion last week in Glasgow City Council v Marshall.

Issue
Whether the equality clause imposed under the Equal Pay Act 1970 can operate in the absence of evidence of sex discrimination.

Facts
The Respondent is an education authority. For historical reasons to do with different negotiated payscales, teachers and non-qualified 'instructors' at special schools operated by the Respondent were paid significantly different salaries, even though they did work of the same kind.

Seven women instructors claimed they were employed on like work with male teachers, and that they were therefore entitled to the same pay as their respective male counterparts. Conversely, one male instructor claimed he was employed on like work with female teachers, and that he was entitled to the same pay as female teachers.


First Instance Decision
The industrial tribunal, following a 52 day hearing, found the instructors and trachers were employed on 'like work'. They then went on to consider the EPA 1970, s1(3) defence (is the difference in pay due to a material factor which is not the difference of sex, and which is a material difference between the woman's case and the man's case?).

The education authority relied, for the purposes of s1(3), on the historical reasons for the difference in pay, namely the different pay scales resulting from different collective bargaining structures from different groups of trades union. They also relied on statistics demonstrating the absence of sex discrimination, which the applicants did not challenge.

The industrial tribunal held that the education authorities had failed to establish the section 1(3) defence. All they had done was point to a historical basis for the disparity in pay. That was not enough, and was simply demonstrative of inertia on the part of the employer. It held that the admitted absence of sex discrimination was not enough to establish the defence, and said that lack of sex discrimination was simply a factor, rather than conclusive, in establishing the 'material difference' defence.


The House of Lords' Decision
Lord Nicholls delivered the main speech, with whom the rest of the House agreed.

The House held that the industrial tribunal was wrong. It was inconceivable that the equality clause should operate where there is no suggestion of sex discriminatinon. To do so could not be reconciled with the gender-related elements of the statutory equality clause.

On the Applicants' interpretation of the Act, what matters is not sex discrimination but whether, within one establishment, there is a variation in pay or conditions between one employee doing like work with another. The sex of the employees would be neither here nor there, save that to get the claim off the ground the comparator would have to be of the opposite gender. That could not be right, for it would allow the Equal Pay Act to be called into action whenever mixed groups of workers were paid differently for doing work of equal value. Indeed, on the facts of this case, both male and female instructors would succeed on the Applicants' interpretation of s1(3) - and it would be most curious that, on the same facts, claims by both men and women of sex discrimination succeed.

Lord Nicholls said that the correct interpretation of the Act is as follows. There is a rebuttable presumption of sex discrimination, which arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex discrimination. In order to discharge this burden the employer must satisfy the tribunal on several matters:
1. that the proffered explanation, or reason, is genuine, and not a sham or pretence
2. that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a 'material' factor, that is, a significant and relevant factor
3. that the reason is not 'the difference of sex'. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect
4. that the factor relied upon is or, in a case within section 1(2)(c), may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case.
Lord Nicholls went on to say that when section 1 is analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a 'good' reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.


Comment
This decision is one of common-sense, and echoes previous decisions (eg BRS v Loughran or Enderby - neither of which were mentioned in the judgment).

It would be absurd if the Equal Pay Act could be used to boost the pay of lower-paid employees when there exists a reason for the difference in pay other than sex discrimination. The grievance of the instructors was, in essence, not that the pay structures were discriminatory on grounds of sex, but that they were not 'fair'! In the absence of legislation rewarding work with 'fair' pay, the discrimination statutes should not be used to achieve the same result by the back door.