Tuesday 26 October 2004

New EAT Decisions

Porn and Pensions

Two new EAT cases today: one on porn, one on pensions. No prizes for guessing which will have the highest click-through rate!

Daniel Barnett

Office Porn

The EAT has held that it amounts to sex discrimination for men to download porn in the office, if there is a woman in the room, unless the woman has participated in, or enjoyed, the downloading.

It overturned a tribunal decision that there was no discrimination on grounds of sex because the woman employee had not complained at the time.

Applying the Barton v Investec Guidelines, the EAT held that downloading porn in a place where it could be seen by a woman gave rise to a prima facie case of less favourable treatment (by affecting the woman's dignity and creating an intimidating atmosphere). This shifts the burden of proof onto the employer to establish a non-discriminatory reason, such as the woman was party to, or enjoyed, what was going on.

On the facts of the case, the employer had been debarred from defending, so the shifting of the burden of proof meant that the EAT substituted a finding of sex discrimination.

Moonsar v Fiveways Express

Calculating Pensions Losses

Last year, a committee of employment tribunal chairmen developed the 3rd edition of the Employment Tribunal: Compensation for Loss of Pension Rights booklet (see bulletin 21/11/03).

This booklet replaced the much-criticised 2nd edition, published in 1992.

The Employment Appeal Tribunal has held that it is an error of law for a tribunal to adopt the pension loss calculations set out in the Guidelines if the parties have their own credible evidence relating to pension losses. The Guidelines, say the EAT, are a fall-back position only if the parties do not have their own evidence, or if their own evidence is not credible.

Port of Tilbury v Birch

Monday 18 October 2004

Is 'length of service' automatic justification for different pay for men and women?

The Court of Appeal has, today, published its judgment in Cadman v HSE (judgment was officially handed down last week, on Friday, 15th October).

Ms Cadman received less pay than men in the same grade as her at the Health & Safety Executive. But they had been employed for longer, which was the reason they were paid more.

It was common ground that in this country (and across the EC), the length of service of female workers, taken as a whole, is less than that of male workers.

The employment tribunal, relying on the ECJ case of Danfoss, held that the use of length of service as a criterion in a pay system does not require specific justification.

The Court of Appeal analysed subsequent decisions of the ECJ in detail. It noted that there have been indications in subsequent decisions which would seem to require justification for a 'length of service' criterion.

Although Danfoss has never been expressly departed from, the Court of Appeal noted that the ECJ has a tendency to just ignore previous decisions it dislikes rather than expressly overrule or depart from them. Indeed, in all the years of the ECJ's existence, there is only one recorded instance of the ECJ expresly overruling its own previous decision!

Thus the fact that some subsequent cases had cast doubt meant that the Danfoss decision had to be viewed with caution.

The Court of Appeal accordingly remitted the issue to the ECJ, for the ECJ to decide whether the use of 'length of service' as a factor in a pay system requires objective justification.

Cadman v HSE

Monday 11 October 2004

ACAS E-Learning Information and Consultation

ACAS has just published its Electronic Learning (E-Learning) Guide on the new Information and Consultation laws. As readers will know, they start to come into force (for large businesses) in April 2005.

This is the second E-Learning Guide ACAS has produced (the first was on discipline and grievance procedures).

They can be accessed for free on ACAS's website, although visitors need to register first.