In the news

ACAS CP guide

The conciliation service ACAS has published a short guide for employers on civil partnerships.

The guide sets out employers' duties to provide to employees who are civil partners, and to their civil partners, the same benefits they give to married employees and their spouses. These could include survivor pensions, flexible working, statutory paternity pay, paternity and adoption leave, health insurance or time off before or after marriage/registration.

There are no legal requirements to offer such benefits to couples of either the same or opposite sex who have not entered into a marriage or civil partnership. However, where benefits are made available to unmarried opposite sex couples, they must be extended to same sex couples who have not registered a civil partnership.
 

New compensation limits

A number of new compensation limits came into force on 1 February 2006. These include:

*There is no limit where the employee is dismissed unfairly or selected for redundancy for reasons connected with health and safety matters or public interest disclosure ("whistleblowing"), or the dismissal is contrary to discrimination law.
 

Equality 200 years off

In its annual survey of women's representation, the Equal Opportunities Commission (EOC) suggests that it will take 20 years before there are equal numbers of men and women in the top civil service; 40 years for directors of FTSE 100 companies; 40 years for the senior judiciary; and up to 200 years for Parliament.

Thirty years after the Sex Discrimination Act (SDA) came into force, "Sex and Power: Who Runs Britain? 2006", showed that women represent only 11 per cent of directors at FTSE 100 companies, 20 per cent of MPs and 16 per cent of council leaders.

The survey also shows that women make up just nine per cent of the senior judiciary, 10 per cent of senior police officers, and 13 per cent of editors of national newspapers.

While women are reaching critical mass in some areas, such as heads of professional bodies (33 per cent) and national arts organisations (33 per cent), in most fields there has been little change since the EOC first published the survey two years ago.

The EOC is calling for:

• all political parties to take action to improve women's representation before the sunset clause in the law makes positive action impossible
• more high-quality, high-paid, flexible and part-time work at all levels
• a legal requirement for employers in the private sector to promote sex equality and eliminate sex discrimination, similar to a new duty on public sector employers expected in 2007.

New benefit rates

The Government has announced new rates of statutory benefits, all of which apply from April 2006. These include statutory maternity, paternity and adoption pay, as well as a new level for statutory sick pay.

From April 2006:

• the standard rate of statutory maternity, paternity and adoption pay rises from £106 to £108.85 per week
• the standard rate of statutory sick pay goes up from £68.20 to £70.05 per week
• the earnings threshold for these payments increases from £82 to £84 per week.

Grievance dispute

In line with regulation 14 of the Dispute Resolution Regulations, the employment appeal tribunal (EAT) has ruled that a statutory questionnaire cannot be counted as a statement of grievance.

In Holc-Gale v Makers UK Ltd, Ms Holc-Gale served her employer with an equal pay questionnaire before bringing her claim. She did not lodge a grievance beforehand.
Instead, she argued that the statutory questionnaire should be considered in two, separate parts. The first part, in which the claimant sets out the information about the case, should be regarded as the grievance statement. It is only the second part, in which the claimant asks her questions, which should not.

The employment appeal tribunal disagreed. It said that the policy behind regulation 14 was to exclude the antidiscrimination questionnaire procedure from the statutory definition of grievance. The EAT also rejected her argument that the requirement to lodge a statutory grievance before making a claim was a breach of the Equal Pay Directive.

Male to Female Pensions

In the UK, men currently receive their state pension at 65; women at age 60. But how does that affect transsexuals?

The Advocate General (who advises the European Court of Justice in making their decision) has said that it was contrary for a member state to refuse a retirement pension to a male to female transsexual before the age of 65, if that person would have been entitled to a pension at age 60 under national law.

Sarah Margaret Richards, a male to female transsexual who had gender reassignment surgery in May 2001, applied in February 2002 for a pension to be paid from her 60th birthday, which was in 2002.

The Department for Work and Pensions refused on the grounds that it was more than four months before her 65th birthday, as it still considered her to be a man.

The ECJ has still to give its verdict, and although it does not always follow the opinion of the Advocate General, it usually does so.

Equally valued

Just when the courts seemed to have accepted that pay differences in equal pay cases should all be viewed with suspicion (Sharp v Caledonia Group Services, LELR 107), the Court of Appeal has ruled the opposite.

It has decided in Armstrong and ors v Newcastle Upon Tyne NHS Hospital Trust that employers do not have to provide justification for a pay disparity unless the reason for it - the genuine material factor - is itself tainted by sex discrimination.

This is in complete contrast to the decision of the employment appeal tribunal (EAT) in Sharp, which said that employers have to objectively justify all material factor defences. Although the Court of Appeal decision does not refer to Sharp, it takes precedence over any decision by the EAT.

This decision will be covered in more detail in the next LELR. 

A rub down

A woman prison officer was directly discriminated against when she was required to do rub down searches of male prisoners in a men's prison, an employment appeal tribunal (EAT) has ruled.

The officer, Mrs Carol Anne Saunders, took a claim of sex discrimination against the Home Office after she was transferred to a women's prison, having refused to do the searches of male prisoners because she found them degrading and distasteful. Although male prison officers are not allowed to do rub down searches of women, women prison officers in male prisons are required by the rules to carry them out on men. The EAT has confirmed in Home Office v Saunders that the correct comparator for a female officer carrying out a search on a male prisoner was a male officer carrying out a search on a female prisoner.

Mrs Saunders had therefore been directly discriminated against when she was required to carry out a rub-down search of a male prisoner when a male colleague was specifically prohibited from carrying out a rub-down search of a female prisoner. To hold otherwise, said the EAT, would be to "defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals".