Discrimination Law

Newsletter of the International Bar Association Legal Practice Division

Volume 14 number 2 December 2010 Long established as the trading and commercial hub of the Middle East, Dubai combines the excitement of a bustling commercial centre with the wide open spaces of a luxurious resort. Located at the cross-roads of Asia, Europe and Africa, and offering facilities of the highest international standards combined with the charm and adventure of Arabia, Dubai is sure to be another premier destination for the IBA Annual Conference 2011. What will Dubai 2011 offer? • The largest gathering of the international legal community in the world – a meeting place of more than 4,000 lawyers and legal professionals from around the world • More than 200 working sessions covering all areas of practice relevant to international legal practitioners • The opportunity to generate new business with the leading firms in the world’s key cities • Registration fee which entitles you to attend as many working sessions throughout the week as you wish • Up to 25 hours of continuing legal education and continuing professional development • A variety of social functions providing ample opportunity to network and see the city’s key sights • Integrated guest programme • Excursion and tours programme

To register your interest, please contact: International Bar Association 10th Floor, 1 Stephen Street, London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868 Fax: +44 (0)20 7691 6544 www.ibanet.org/conferences/Dubai2011 In this issue Newsletter Editors From the Chair 4 Donald Dowling, Jr White & Case LLP, New York Committee Officers 5 Tel: +1 (212) 819 8665 Feature articles Fax: +1 (212) 354 8113 [email protected] Gender discrimination in Argentina Iván Suárez María Alexia Aurelio 6 Bufete Suárez de Vivero SL, Barcelona Implementing CSR in an HR legal context Tel: +34 (93) 295 6000 Jeppe Høyer Jørgensen 9 Fax: +34 (93) 295 6001 [email protected] Is equal treatment regarding religion possible in the workplace in France? Anne-Laure Peries 12 International Bar Association 10th Floor, 1 Stephen Street Religious tolerance and constitutional rights in London W1T 1AT, United Kingdom Germany exemplified by the headscarf ban in state schools Tel: +44 (0)20 7691 6868 Kara Preedy and Feyzan Ünsal 14 Fax: +44 (0)20 7691 6564 www.ibanet.org It doesn’t matter whether you are employing a © International Bar Association 2010. man or a woman – protection for transgender All rights reserved. No part of this publication may be reproduced or employees transmitted in any form or by any means, or stored in any retrieval Susan Stelzner 16 system of any nature without the prior permission of the copyright holder. Application for permission should be made to the Head of Publications at the IBA address. Sex workers win some unfair dismissal rights from South African Labour Appeal Court Stuart Harrison 17 This newsletter is intended to provide general information Recruitment issues for UK-based employers regarding recent developments in discrimination law. Keith Corkan 18 The views expressed are not necessarily those of the International Bar Association. The UK Equality Act – an update Bettina Bender 20

Terms and Conditions for submission of articles 1. Articles for inclusion in the newsletter should be sent to the Newsletter Editor. 2. The article must be the original work of the author, must not have been previously published, and must not currently be under consideration by another journal. If it contains material which is someone else’s copyright, the unrestricted permission of the copyright owner must be obtained and evidence of this submitted with the article and the material should be clearly identified and acknowledged within the text. The article shall not, to the best of the author’s knowledge, contain anything which is libellous, illegal, or infringes anyone’s copyright or other rights. 3. Copyright shall be assigned to the IBA and the IBA will have the exclusive right to first publication, both to reproduce and/or distribute an article (including the abstract) ourselves throughout the world in printed, electronic or any other medium, and to authorise others (including Reproduction Rights Organisations such as the Copyright Licensing Agency and the Copyright Clearance Center) to do the same. Following first publication, such publishing rights shall be non-exclusive, except that publication in another journal will require permission from and acknowledgment of the IBA. Such permission may be obtained from the Head of Editorial Content at [email protected]. 4. The rights of the author will be respected, the name of the author will always be clearly associated with the article and, except for necessary editorial changes, no substantial alteration to the article will be made without consulting the author.

Discrimination Law committee NEWSLETTER December 2010 3 from the chair

Dirk Jan Rutgers DLA Piper, Amsterdam A look back at Vancouver dirkjan.rutgers@ dlapiper.com hat a wonderful IBA Annual Both the Discrimination Law and Conference we had in Employment and Industrial Relations Law Vancouver! The hospitality of Committees are currently working on the Wthe city was overwhelming and stand-alone conference in Brussels, 14-15 the conference programme of sessions was April 2011: ‘The changing world of work: more than worth the trip. The Discrimination responding to the challenges of the 21st Law Committee had a fair share in the event century from a global and EU perspective.’ and I would like to thank all who contributed The keynote speaker is Herman van Rompuy, to its success. During the Conference there President of the European Council. The full were sessions discussing health and safety in conference programme will be published the workplace and employment and privacy shortly – we hope you will join us there. issues in the hospitality industry. We also I am proud to introduce this newsletter to discussed how the application of human you. Our newsletter editors, Donald Dowling rights law in domestic courts took us to and Iván Suárez, have done a superb job the heart of what we would like to achieve: by bringing together so many interesting how can we bring international human law articles and topics. You will find, among standards work? The session about state- others, an article about gender discrimination sanctioned crimes against lesbian, gay, in Argentina; and sex discrimination in bisexual and transgender (LGBT) persons South Africa. But also don’t miss the articles strengthened over the firm belief that the IBA on freedom of religion in France and should continue to play a role in this area of recruitment and the Equality Act in the UK. great importance. The second meeting we Finally, I’m pleased to introduce two new had with the LGBT Working Group, under officers to our committee from 1 January the leadership of Ramyar Moghadassi, was 2011. Phil Berkowitz has accepted the role of promising; the idea is to further strengthen Newsletter Editor and Liaison Officer for the this working group to create a stand-alone North American Regional Forum, and Anthony subcommittee in the near future. The LGBT Hyams-Parish will become our new Membership party, held in the J-Lounge with late night Officer. We offer a warm welcome to them drinks and music, is something special both. Among the other appointments, I would to remember; everyone had a wonderful like to mention the following three. First of all, evening, not just because we had a lively Ignacio Funes de Rioja will join Cherie Booth as Lady Gaga tribute act! I would like to thank a Senior Vice-Chair. Ignacio has been a driving all the sponsors, and the great support of and inspiring force within our committee for the IBA which made this possible. You will many years. David Lowe and Susan Stelzer will understand that it will be difficult to repeat become the new Committee Co-Chairs. Both such an expression of freedom at the 2011 David and Susan are excellent lawyers and IBA Annual Conference in Dubai, but at fine colleagues. They have done so much to least we have this and other issues for debate. strengthen the work of our Committee in recent A final word on Vancouver; it was good to years, that I am in no doubt the leadership of meet colleagues at the joint dinner with the the Committee could not be in better hands. Employment and Industrial Relations Law This means that my time has come to step down Committee. This event, in the wonderful as Chair. Thank you all for your support. Bridges Restaurant, reconfirmed the strong Happy holidays and all the best for 2011. ties between our committees. I hope to see you all in Brussels.

4 International Bar Association Legal Practice Division committee officers

Committee Officers

Chair Corporate Counsel Forum Liaison Officer Dirk Jan Rutgers DLA Piper, Amsterdam Regina Glaser Tel: +31 (20) 541 9829 Heuking Kühn Lüer Wojtek, Düsseldorf Fax: +31 (20) 541 9953 Tel: +49 (211) 6005 5276 [email protected] Fax: +49 (211) 6005 5270 [email protected]

Senior Vice-Chair Membership Officer Susan Stelzner Amit Bhasin Edward Nathan Sonnenbergs, Law Offices of Bhasin and Cape Town Bhasin Associates, New Delhi Tel: +27 (21) 410 2560 Tel: +91 (11) 4164 2189 Fax: +27 (21) 410 2555 Fax: +91 (11) 4164 0722 [email protected] [email protected]

Vice-Chairs Newsletter Editors Cherie Booth QC Donald Dowling, Jr Matrix Chambers, London White & Case LLP, New York Tel: +44 (0)20 7404 3447 Tel: +1 (212) 819 8665 Fax: +44 (0)20 7404 3448 Fax: +1 (212) 354 8113 [email protected] [email protected]

Ignacio Funes de Rioja Iván Suárez Funes de Rioja & Asociados, Bufete Suárez de Vivero SL, Buenos Aires Barcelona Tel: +54 (11) 4348 4100 Tel: +34 (93) 295 6000 [email protected] Fax: +34 (93) 295 6001 [email protected]

David A Lowe Website Officer Rudy Exelrod, Zieff & Lowe LLP, Anders Etgen Reitz San Francisco Magnusson, Copenhagen Tel: +1 (415) 434 9800 Tel: +45 8251 5109 Fax: +1 (415) 434 0513 Fax: +45 8251 5101 [email protected] anders.etgen.reitz@magnussonlaw. com

Secretary Lesbian, Gay, Bisexual and Helen McKenzie Transgender Issues Working Blake Dawson, Sydney Group Officer Tel: +61 (2) 9258 5718 Ramyar Moghadassi Fax: +61 (2) 9258 6999 Moghadassi & Associates, London [email protected] Tel: +44 (0)20 7667 6555 [email protected]

LPD Administrator Kelly Savage [email protected]

Discrimination Law committee NEWSLETTER December 2010 5 GENDER DISCRIMINATION IN ARGENTINA

Gender discrimination in Argentina

Legislation against gender discrimination by providing for aggravated compensation if a pregnant woman is dismissed. In Argentina there are extensive Moreover, Argentina adopted the constitutional, conventional, legal and Convention No 100 of the ILO (International administrative regulations against gender Labour Organisation) which stipulates in discrimination in all areas, particularly in the María Alexia Article 2, that ‘1) every member shall, by workplace. Discrimination against women is Aurelio means appropriate to the current methods illegal, but the reality does not always concur for determining rates of remuneration, Aurelio & Associates, with legal theory. promote and, insofar as is consistent with Buenos Aires The National Constitution, even prior to such methods, ensure the application to all [email protected] the 1994 reform, provided for ‘equal pay for workers of the principle of equal pay between equal work’ and that ‘all inhabitants are equal male and female workers for work of equal before the law and admissible to employment value.’ without any other requirement than their Law No 23,592 of 1988 established certain ability...’ general principles against discrimination After the 1994 reform, in Article 75 which also apply to the area of employment subsection 22, International Conventions law, as set in Article 1: ‘Those who arbitrarily signed by the Executive are given impede, obstruct, restrict or otherwise impair constitutional status and therefore take the full exercise on an equal footing of the precedence over other laws. It specifically rights and guarantees recognised in the mentions the Convention on the Elimination Constitution, shall be obliged, upon request of All Forms of Discrimination against of the victim, to repeal the discriminatory Women. Article 75 subsection 23 stipulates act or cease the discriminatory action and that it is up to Congress ‘to legislate and to repair the moral and material damage promote positive action to ensure equality caused. For the purposes of this Article of opportunity and treatment, and the it shall be deemed particularly discriminatory full enjoyment and exercise of the rights acts or omissions based on certain grounds conferred by this Constitution and by such as race, religion, nationality, ideology, international treaties on human rights, in political opinion or trade union affiliation, particular towards children, women, the gender, economic status, social or physical elderly and people with disabilities.’ characteristics.’ (Emphasis added.) Prior to the enactment of the Labour Law No 24,515 of 1995 created the Contract Law No 20,744 issued in 1974, National Institute against Discrimination, the principles of equal treatment between Xenophobia and Racism (INADI). Its actions men and women and equal pay for equal are aimed at those whose rights are affected work, already existed in the workplace. With by being discriminated against because of the passing of the Labour Contracts their ethnicity or nationality, their political Law (LCT), these principles have been views or religious beliefs, gender or sexual incorporated into several articles, such orientation, for having a disability or illness, as Article 172, which states that ‘women age or physical appearance. Its functions are may enter into any employment contract, to ensure the same rights and guarantees for and no collective bargaining agreements these people which are enjoyed by the society or authorised regulations can introduce as a whole, that is, equal treatment. any type of employment discrimination Later in 1998 Law 25,013 was enacted, based on sex or marital status, even if the which in Article 11 contemplates specifically marital status changes in the course of the figure of discriminatory dismissal, section employment’. Collective agreements or wage which was repealed by Law 25,877. rates negotiations developed must ensure the Law 25,212 of 1999 governs labour full observance of the principle of equal pay violations and states that: ‘The following for work of equal value. Article 178 of the are very serious infringements: (a) The LCT was included to protect working women employer’s decisions involving any type of

6 International Bar Association Legal Practice Division GENDER DISCRIMINATION IN ARGENTINA discrimination in employment or occupation and guarantee them to be effective. Part of on the grounds of race, colour, national this protection is to declare the nullity of origin, religion, sex, age, political opinion, the provisions which establish inequality. In social origin, trade union, residence or family this case it was determined that the responsibilities...’. employer cannot discriminate on the basis In 2009, Law 26,485, the Comprehensive of gender in the workplace and that the Protection Act to prevent, punish and concept of discrimination at work covers eradicate violence against women in areas the pre-employment selection process, the in which they develop their interpersonal employment relationship during and post- relationships, as a matter of public policy and employment. It was proven that the company implementation throughout the national (Freddo SA), had acted discriminatorily, territory is enacted. Its purpose is, inter preventing the recruitment of women. For alia, to ensure: ‘(a) The elimination of that reason it sentenced Freddo SA to hire discrimination between women and men in only female staff in the future until the all walks of life... (c) The conditions suitable produced inequality is fairly and reasonably to raise awareness and prevent, punish compensated. To this end the company is and eradicate discrimination and violence obligated to submit an annual report to against women in all its forms and areas... (e) monitor compliance with this condition. The removal of socio-cultural patterns that Another significant and very recent promote and sustain gender inequality and decision on gender discrimination was power relations on women...’. Furthermore, dictated by the Supreme Court of Salta in this law guarantees all the rights recognised the case Sisnero Mirtha Graciela; Caliva Lía by the Convention on the Elimination of All Verónica; Bustamante, Sandra y Women in Forms of Discrimination against Women, the Equality Foundation v. Tadelva SRL; Ahynarca Convention on the Prevention, Punishment SA; Alto Molino SRL and Others – Salta Superior and Eradication of Violence against Women, Tribunal, CSJ, 8 June 2010. the Convention on the Rights of Children In the field of public transport, this and Law 26,061 regarding Comprehensive sentence is very interesting when you consider Protection of the Rights of Children and that there is no concrete act of discrimination Adolescents. The law expressly states that one that should cease in the case presented by of its objectives is to achieve real equality of the individuals, but that there is certain rights, opportunities and treatment between behaviour that should be reviewed in order to men and women. prevent inflicting damage to the equal rights of women and to comply with the principles established by Law 26485 and international Practical applications of these laws in the conventions. For that reason the Tribunal Argentine system imposed an obligation on transport firms The principles embodied in the various pieces to submit information to the enforcement of legislation mentioned have been applied in authority in order to study how the selection practice in the examples shown below: of drivers is made and to avoid discrimination. The Court said: ‘in the workplace in question, just go to any bus stop to view the lack of Discrimination against women in the field presence of women driving these buses. The of private activity defendants themselves accept this practice or, In the field of civil justice we highlight the more strictly, the practice of non-admission National Civil Appeals Court ruling in the of women to the ranks of the “bus drivers”, case of Women in Equality Foundation and though, and worth repeating again, it has other v Freddo SA about ‘amparo’, (amparo not been proved to be due to impairment is a legal action to claim for the safeguard by employers or lack of initiative to date of of a constitutional privilege) from 16 women themselves. But as from today, when December 2002. It was shown that Freddo advised of the possibility that they might (an ice cream parlour and coffee shop chain) be discriminated against even by purely hired 638 men but only 18 women in 1998 practical factors, and considering the need and this pattern was repeated during the for companies to adapt, for example, shifts following year, when Freddo hired 297 men in connection with maternity, among others, and only 33 women. The Appellate Court state authorities must assume the obligation ruled that it is not enough to recognise the to avoid any situation of discrimination.’ rights but it is also necessary to promote In conclusion, the sentence applies only

Discrimination Law committee NEWSLETTER December 2010 7 GENDER DISCRIMINATION IN ARGENTINA

for preventive purposes, so that in future Discrimination against women in the field contracts, it will ensure that the nomination of public or political activity of women will be analysed by transport In the action of ‘amparo’ (an amparo is a companies regardless of their gender, but legal action to claim for the safeguard of a based on the same requirements as those constitutional privilege), Zigarán, María Inés, required to men.’ Sandoval, Patricia and others v State Provincial

Discrimination against women in the field – JUJUY Administrative Court, 27 May 2010, of sport stated: ‘...the system of quota shares [the quota share system guarantees that every At the administrative level and within the political party presents a percentage of claims that have been submitted to the women candidates at each election] brings INADI include Ruling No 032/09, which in a mechanism of democracy to political originated in the complaint filed by Ms participation on equal terms for men and F R R against the Argentine Football women which guarantees and protects gender Association (AFA). In this case, the INADI parity and the non-discrimination of women considered that the conduct of the AFA in political life... [thus] acknowledging those fell within the terms of Law 23.592 and rights as “fundamental human rights”, the therefore was a discriminatory attitude. The violation of which implies the infringement conduct that the complainant said to be of a “collective right” ... Therefore, exposed discriminatory is the existence of a set of to the action of “amparo” filed by the constraints (linked to her gender) made by plaintiffs against the Provincial Government the defendant to her admission as a referee and ordered the executive and legislative and access to promotion and the fact branches of the Province to implement the that she receives lower pay than the male constitutional mandate of Article 37 last referees of the same category. paragraph, and second transitional provision The court therefore recommended a series of the National Constitution, to sanction of guidelines to the entity, such as: and promulgate the regulatory law required • incorporating women candidates in thereby, within three months, under warning a proportion of at least one third to of penalty payments and legal costs to the organisations qualified for overseeing, Provincial Government which was defeated.’ sorting into ranks, promoting, downgrading The last paragraph of Article 37 of the or excluding referees; National Constitution states that real equality • incorporating changing rooms and of opportunity between men and women bathrooms for referees in all stadiums in access to elective and political party shall where matches are played and organised by be warranted by affirmative action for the the denounced entity; regulation of political parties and electoral • mitigating or easing requirements and systems. conditions to become a staff member of the denounced institution; Conclusion • adjusting the set of physical requirements for referees to match the parameters The Argentine regulatory system embodies currently set by FIFA (International equality between men and women in all Federation of Football Associations), should spheres, particularly in the workplace. these impose less stringent requirements for The Argentine Judicial System guarantees women referees; equality and rejects gender discrimination, • paying women referees the same condemning discriminatory attitudes compensation or fee as that paid their male towards women and declaring null and void counterparts in the same rank, irrespective any discriminatory dismissal or forcing the of whether the referee conducting the perpetrators of discrimination to adopt match is a man or a woman, until standards behaviour consistent with the International for quality assessment are adopted, thus conventions and laws approved by Argentina. ensuring transparency, objectivity and equal While in practice, complete equality treatment; and between men and women at work has not • carrying out on-going advertising and been achieved, I believe that the necessary training events, aimed at achieving full conditions and prerequisites for progress in respect, protection, and making sure this area are in place and this is supported by that gender diversity is observed within the legal and administrative precedents. Argentine football.

8 International Bar Association Legal Practice Division Implementing CSR in an HR legal context

Implementing CSR in an HR legal context

Jeppe Høyer Jørgensen MAQS Law Firm, ‘Lose money for the firm, I will be very The relevant tool for implementing such Copenhagen understanding. Lose a shred of reputation of strategies would, in most countries, be employee policies or codes of conduct. In jeppe.hoeyer. the firm, I will be ruthless.’ this respect, there are a number of issues that joergensen@ Warren Buffet when taking over as Chairman of Solomon Brothers (now City Group) in 1991. in most jurisdictions could prove relevant dk.maqs.com as subject for such CSR-related policies, etc. These CSR-related issues concerning Introduction employees focus on the areas: equality Corporate social responsibility (CSR) has and diversity, work life balance, working become an integrated part of the strategy environment and welfare and pro bono and and business of multinational companies social work. today.1 In this respect, it has become Below is a list of relevant issues for CSR- increasingly relevant and a rising challenge related policies. The list is not exhaustive and for HR departments in MNCs (multinational is only meant for inspiration and illustration corporations) to find out how to define and of the various areas where HR departments implement CSR in respect of its employees. may focus but also face challenges when The challenges involved are not only relating implementing CSR strategies in the workplace. to communication and leadership but is also of a legal nature. Many jurisdictions, Equality and diversity not least within the EU, have a detailed web of anti-discrimination laws and mandatory • Policy on equality and diversity on the provisions around which HR departments workplace; have to manoeuvre when implementing CSR • policy regarding registration and statistics and facing sensitive issues, such as how to on the number of employees with a secure more diversity in the workplace. different racial or ethnic origin, employees This article will focus on outlining the over a certain age, employees divided into areas that, at least from an EU perspective, gender with a view to implement equality have shown to be relevant for CSR-related and diversity in the workplace; initiatives, and some of the legal challenges • policy regarding freedom of religion implementing such initiatives that may give (prayer rooms, religious public holidays and rise to an HR legal context. This article will policy on the use of religious symbols and take an EU-perspective with a relevant outline clothing relating to the work in question); of experiences from my practice as a lawyer • policy on handling of racism and difficulties specialised in labour and employment law relating to co-operation between employees and on CSR-related issues in Denmark. based on lack of tolerance or understanding of differences relating to culture, racial or ethnic origin and religious beliefs; Possible CSR-activities in a HR legal context • recruitment policy, encouraging the Activities within CSR could be diverse and employment and promotion of persons of must be adapted to the cultural values and a different racial or ethnic origin and other business strategy of the multinational company minority groups; in question. In addition, CSR strategies in • policy for the promotion of recruiting, relation to employees must take into account employment and promotion of disabled the various – sometimes major – economical, employees and practical handling of the social, cultural as well as legal differences daily workplace and working life including between various jurisdictions. Adopting measures that may assist the disabled to common cross-border CSR strategies in work on equal terms; different countries is a challenge. • promotion of ‘light jobs’ including possible

Discrimination Law committee NEWSLETTER December 2010 9 Implementing CSR in an HR legal context

home-based workplaces in relation to One of the first general challenges is that employees with disabilities themselves or who in order to identify if and to what extent have family members who are disabled; measures relating to diversity are needed, • policy on promotion of employment of it is necessary to have an overview of the members from different minority groups on degree of diversity within the company in trial or special terms including examination question. However, it is often very difficult to of financial support from public authorities register and monitor the degree of diversity or funds for this purpose; – for example in relation to racial or ethnic • specific targets as to the degree of diversity origin and the disabled in the workplace based on nationality, racial, ethnic origin, – without violating EU-based and national gender, age or disability in various parts of laws on anti-discrimination and laws of the company; and protection of personal data. These laws are • policy on staff over a certain age and specifically aimed at preventing registration agreements allowing to maintain senior and monitoring based on criteria such as staff and their know-how including by racial or ethnic origin and disability such as offering selected training classes, a decrease EU Council Directive 2000/43/EF, 29 June in working hours and guidance on the 2000, on implementing the principle of equal transition from work into retirement. treatment between persons irrespective of racial or ethnic origin. Work/life balance, working environment In Denmark, the Danish Ministry of Labour and welfare has tried to solve this problem by offering a service to all companies of employers • Policy on work/life balance; furnishing personal registration numbers • policy on health promotion and welfare, for all employees (this information is including policies on smoking in the usually already exists for the purposes of tax workplace; reporting) to the Danish Statistics Agency (a • policy to promote a healthy mental public body). The Agency will then compare working environment, the handling of the personal registration numbers with problems relating to bad mental working information in the public registration files environment, harassment and bullying; regarding state citizenship of the employee, • policy to promote environmental friendly registered birthplace and the state citizenship measures, focus on ‘green’ company and and birthplace of the parents (the so-called reduction of CO in all respects of the 2 ‘personal registration number-method’). workplace including in the production, On this basis, the Agency will prepare administration, choice of building elements a schedule outlining the number of and recycling of materials; and employees who are of a Danish/Western • promotion of consultation and information and non-Western origin. The Agency will of employee regarding policies and decisions maintain anonymity and secure that no affecting the working environment and person-specific information may be derived welfare and diversity of the workforce. from the schedule but that it will provide the company with a useful overview of the Pro bono and social work degree of diversity without violating the anti- • Policy regarding pro bono work including discrimination laws and data protection laws. social or community-related work by Another general challenge is the job employees including providing the freedom application and interview process. Promoting and necessary support to this. diversity may require the recruitment of staff based on their ethnic origin or disability, and may run counter to EU-based and national Legal challenges with implementing CSR laws on anti-discrimination and laws of initiatives in an HR legal context protection of personal data. For example, this As mentioned in the introduction, there means that job applications must avoid any are, however, certain legal challenges when references to ethnic origin or disability. One adopting and implementating CSR initiatives. disadvantage to this is that job vacancy adverts In particular, in relation to the desire to in the general media may not attract the attract and employ employees with a different target minority groups. ethnic origin and/or people with disabilities One way of solving this dilemma may be or from other minority groups, as it will raise to choose a more suitable media for the job a number of legal challenges. application by providing the job application

10 International Bar Association Legal Practice Division Implementing CSR in an HR legal context in an electronic format, on a webpage or in a will undoubtedly continue to create cases and magazine that is known to be read by and will issues for lawyers and courts to solve. be relevant to the relevant target group. This In Denmark, 2005, a Supreme Court procedure could be relevant if, for example, Judgment ruled in favour of a shopping mall the attempt is to attract disabled people to chain who had issued a ban on the use of a particular post. Another possibility is to headscarves for employees sitting at counters adopt the job application in more than one with direct contact to customers. The Court language thereby enhancing the likelihood of found the ban to be indirectly discriminatory attracting people of various ethnic origins. against Muslim women but also found that A third general legal challenge is related the shopping mall chain had provided a to the fact that the ordinary line of work justified, objective reason for the ban. The and general policies in a company may run judgment lead to peaceful actions where counter to the use of certain religiously Muslim woman employees wore a headscarf required or recommended clothing, such with the logo of their employer showing as headscarves, headwear or jewellery. In that they maintained their religious symbol recent times a number of cases have been and that they were understanding of the raised and tried in local jurisdictions – as commercial interests and business needs of well as before the Human Rights Tribunal – their employer. relating to, for example, the legality of a ban Perhaps creativity and different thinking on headscarves for certain job functions. In like this may help to solve some of the most jurisdictions, the issue in these cases issues relating to implementing CSR-related revolves around the fact that although the measures in an HR legal context. policy adopted by the company in question is not directly discriminatory, it may well be indirectly discriminatory. In such cases the Note company must prove a valid and objectively 1 In the 10/20 Survey: Looking to the Key Human Resources Legal Issues of the Next Decade, prepared by the IBA Global justifiable reason for the policy. Employment Institute, September 2010 ‘Balance of The clash between an employers’ need to professional and personal life of employees’ and ‘CSR in issue policies and directions in the workplace a post-crisis context’ came in 2nd and 7th place in the list of issues regarded as most critical HR legal issues and to fit the business needs, and the anti- challenges facing MNC’s over the next decade. discrimination laws and principles including the freedom to express an religious belief,

Discrimination Law committee NEWSLETTER December 2010 11 Is equal treatment regarding religion possible in the workplace in France?

Is equal treatment regarding religion possible in the workplace in France?

ue to international mobility, result, public authorities and civil servants are Anne-Laure Peries globalisation and immigration expected to stay neutral with respect to politics Capstan Avocats, between various continents, the or religion when they carry out their duties. Montpellier Dworkplace increasingly reflects the State education was the first sector to be [email protected] multiculturalism of employees, and religion is concerned by religious issues in France; entering the workplace more visibly than ever. religious manifestations are considered In France, a law passed on 11 October 2010 undesirable in state primary and secondary prohibiting the wearing of any face-covering schools which are supposed to be neutral in public spaces (this includes burkas and spaces where children should learn without other full-length veils). Although this law any political or religious pressures. will only become applicable in April 2011, Religious symbols were officially banned and mostly to employees working in public from all public buildings (for example, areas, it has raised various questions about the schools, government offices, hospital) by a expression of religion in French workplaces. law dates September 2004. This law has been Religion does not have a legal definition considered by the European Court of Human in France, but the Constitution (preamble Rights as compatible with the principle of of 27 October 1946) guarantees the all religious freedom (Court’s decisions of 4 freedom of religion. December 2008, No 2705805). Other principles can also apply to The European Court considered that protect religion: the freedom of expression the principle of secularism had the rank of or thought (Article 9 of the European constitutional right in France. Convention of Human Rights applicable Since 13 April 2011, employees in France to all employees) and the principle of non- who are working in a public space could be discrimination (sanctioned by the French banned from wearing any piece of clothing Labour Law Code and by the French penal that will hide their face. This law is only code). applicable to public spaces, defined as public Indeed in France, religious beliefs are ways, any building opened to the public or considered to be part of an individual’s any government related building. freedom of expression or thought and an employer is prohibited from taking religion Companies whose activity is exercised in a into account in the way that it treats job public space applicants and employees regarding their working conditions. The 11 October 2010 law imposes a fine of€ 150 In the past, Roman Catholicism was and/or a citizenship course for wearing a face- recognised as the faith of the majority of covering veil or any piece of extensive clothing French citizens. Judaism and the Lutheran and also penalises anyone who forces another and Reformed Churches were also named person to wear face-coverings with a fine of as being officially recognised by the state, €30,000 and a year’s imprisonment. but none of them were given the status as a These prohibitions concern employees who: religion of the state. • work in a public space (streets, roads or A law of 1905 established a strict separation any passage or place opened to the public between the church and the state, prohibiting – parks, cafes, public transport, shops), or the state from recognising or promoting any places dedicated to a public service (town religion (‘the Republic does not recognise hall, schools, hospitals); and any religion’). • wear clothing which hide the eyes, nose and The French Constitution states that France mouth of the person. is a ‘secular republic’ (‘république laïque’). As a

12 International Bar Association Legal Practice Division Is equal treatment regarding religion possible in the workplace in France?

On the basis of this law, the employer could piece of clothing showing the employee’s ban an employee from covering his/her face religious beliefs. without having to demonstrate that this piece The employer would need to prove that the of clothing is not compatible with health rules ban is not discriminatory, is well proportioned or with public order. and justified with regard to the task to be There are some exceptions to these carried out in these circumstances. prohibitions if covering the face is prescribed If an employer in France wants to apply or authorised by legislation or regulations strict equality regarding religion in France, for professional reasons. This would be the he can restrict the expression of religion case for work involving welding or cleaning either by using the internal rules (a general asbestos (Article R 4534-131 and R 4412- document for all employees on hygiene, 128 of the labour code). The protection safety and discipline) or by invoking the of the face for professional reasons can principle of ‘good faith’ which is an implicit also be founded on a collective bargaining obligation for both parties to an individual agreement, internal rules of the company, employment contract. employment contract or at the simple request The internal rules cannot set out a of the employer (Article L.3121-3 of the general ban on religious expression at work labour code). (Administrative Supreme Court, 25 January 1989); they need to specify precisely the Companies whose activity is not carried restrictions and narrow them to certain out in a public space specific job positions. Also, a guideline from the HALDE of 6 April 2009 recommends that Employees will not be concerned by this law. before any disciplinary action is taken, the This will be the majority as most workplaces employer and the employee should discuss are private spaces. In this context, the the conditions of the religious restrictions. employer cannot ban face-covering on the In brief, since it is a case-by-case assessment, basis of the law of 11 October 2010. internal rules are not a very satisfactory tool French labour laws do not require the to restrict religious expression at work. employer to take steps to accommodate The employer can argue that the employee employees religious beliefs, such as allowing must carry out his/her duties in good faith, them to take time out of the working day as it results from the employment contract – for prayer. for instance, a butcher cannot later refuse to The employer may restrict the exercise of work, arguing that the meat he is obliged to religious freedoms at work, based on case handle does not comply with his new religious law and guidelines from the Halde (High beliefs. Autority for Anti-Discrimination Measures In this regard, the employer can base its and Equality) on two grounds: case on various aspects of the employment • if the freedom of expression/thought relationship, listed below. has been abused notably with insults, defamation, proselytism which can put at risk the rights and freedom of other Medical examinations at work citizens/employees. The wearing of a These regular examinations are compulsory, headscarf is not an act of proselytism in whatever the religious beliefs of the employees itself, outside any other circumstances or are (Supreme Court, 29 May 1986). pressure (Supreme Administrative Court, 27 November 1996); or • if there are objective, relevant and justified Strict observance of the working hours and criteria. However, in such cases, the of the date of holidays agreed with the restrictions imposed by the employer must employer be compatible with the nature of the task A Muslim teacher, for example, cannot to be accomplished and be in proportion demand to be dispensed from working on to the aim sought. In practice, the criteria Friday, in order to pray, and an employer can revolve around health and safety for the refuse some requests for leave or absence, employee and/or his/her colleagues and provided the refusal is objectively justified contacts with the public/clients but in the by the functioning of the company and not latter case, only in specific circumstances by any discrimination based on religion, due to the nature of the job. according to the HALDE. Simple contact with a client is not enough to justify a restriction to the right to wear some

Discrimination Law committee NEWSLETTER December 2010 13 Religious tolerance and constitutional rights in Germany exemplified by the headscarf ban in state schools

Dress code In practice, some companies in France take a more pragmatic view, especially when He actual workplace plays an important role the majority of staff have some religious and the nature of the employee’s tasks will requirements (eg, Muslims in the automotive determine if the employee can ‘show their industry). In this case companies try to adapt religion’ through the clothing he/she wears. by granting days of leave during religious In a clothing shop, a Muslim worker who festivals; and some breaks during the working insisted on wearing a religious headscarf was day to let some employees pray. dismissed with cause as the employer argued The limit should be that religious practices that it was not consistent with respecting the cannot interfere with the normal functioning clients’ various religious convictions. This of the company, that is, the individual and argument did not however prevail in the case collective performances as the team must of a call centre where the contacts with the work efficiently, irrespective of individual clients were limited to a telephone hotline beliefs. or when there was no need to represent the company’s brand image. Religious tolerance and constitutional rights in Germany exemplified by the headscarf ban in state schools Kara Preedy recent decision made by the Constitutional Court also ruled that each Pusch Wahlig Legal, German Federal Labour Court has individual state could ban the wearing of Islamic Berlin caught the public’s attention and headscarves by women teachers, and that this Arevived much discussion among would not infringe the constitutional protection [email protected] Germany’s legal experts about whether public of freedom of religion. The headscarf ban officials have the right to wear headscarves. is defended mainly by citing the religious The court had ruled that a woollen hat which freedom of the pupils. In combination with the fully covers the hair and ears worn by Muslim parents’ personal right of education, a school women while teaching in a public school must education which is neutral in religious matters be considered as an Islamic symbol and could must be guaranteed in German state schools. be banned from state schools on the basis of a This neutrality is aimed at preventing religious corresponding statute. influence by authorities, in this instance the The issue raises difficult questions about teachers, from which children cannot escape religious tolerance and constitutional rights during school hours and which can have a more in Germany. This matter has become a major serious impact, the younger the pupils are. controversy following a decision by Germany’s However, according to the Federal highest court, the Federal Constitutional Constitutional Court, a ban could only Dr Feyzan Ünsal Court (‘Bundesverfassungsgericht’) in 2003.1 The be implemented by state law and not by Pusch Wahlig Legal, judges ruled in favour of a teacher of Afghan administrative decisions. Berlin origin, who was denied a job in the state As a consequence, eight of Germany’s school system because she wore a headscarf. 16 states – Baden-Württemberg, Bavaria, [email protected] Although the court ruled that the decision to Berlin, Bremen, Hesse, Lower Saxony, deny the teacher employment as a teacher was North Rhine-Westphalia and Saarland – unconstitutional because she wore a headscarf, issued restrictions on wearing the Islamic it did not question the constitutional ability of headscarves by amending the respective State states to enact laws imposing such restrictions School Acts. Under the amended school acts, per se. Since education in Germany is the teachers at state schools are not allowed ‘to responsibility of the individual states of the exercise political, religious, ideological or Federal German Republic, which each has its similar manifestations that may endanger own education ministry, the German Federal or disturb the neutrality of the state towards

14 International Bar Association Legal Practice Division Religious tolerance and constitutional rights in Germany exemplified by the headscarf ban in state schools

pupils or parents or the political, religious It is worth noting that in those states where or ideological peace of the school.’ The no exemption is made for Christian or Western Act deems as ‘particularly illegitimate’ any cultural symbols, no case law has occurred. ‘behaviour that can appear to pupils or The same applies to those states which banned parents to be a teacher’s demonstration all religious symbols in public institutions, against human dignity, gender equality including the Christian crucifix and the Jewish according to Article 3 [of the Constitution], yarmulke. Those states are actually consistent the rights of freedom or the free and with a precedent from 1995 where the democratic order of the constitution.’ traditionally Roman Catholic Bavaria battled for The Islamic headscarf is not mentioned the right to display crucifixes in the classroom. explicitly in the laws, but has arisen in In its ruling, the Federal Constitutional Court6 explanatory documents or parliamentary prohibited such display by ruling that crucifixes debates in all eight states, and all the legal were religious symbols and therefore by their challenges to its ban that have gone before the nature negated the obligation of neutral state courts until now have concerned the headscarf.2 school education. Despite this ruling, some This attitude is even more apparent in the states have exempted Christian clothing and states of Baden-Württemberg, Saarland, Hesse, symbols from their bans. To support their Bavaria, and North Rhine-Westphalia, where position, they argue that such exception does the relevant section of the School Act which not privilege Christianity, because such clothing bans religious symbols goes on to say that ‘the and symbols are in line with and preserve values display of Christian and Western religious and expressed in their state constitutions, themselves cultural traditions and values will continue to be influenced by Christianity. They claim that admissible’. By enacting this law, it was assumed Christian clothing and symbols do not therefore that the states intended to prohibit state school risk compromising the neutrality or peace of teachers from wearing the Islamic headscarf, the school. Nevertheless, it is not debatable that these states are facing several lawsuits while permitting teachers to continue to challenging the law as discriminatory and wear Christian religious clothing and symbols accusing them of hypocrisy. It may very well take such as the nun’s habit. Consequently, the a ruling of the Federal Constitutional Court to courts in these states were faced with several create a clearer picture of religious tolerance lawsuits involving individual challenges to the and especially equality of religions in Germany prohibitions. The courts of appeal have so far – even if it results in an across the board ban of issued rulings upholding or clarifying the bans. religious symbols in state schools. A ruling of a Regional Labour Court in 20073 received widespread public attention. Notes 1 Federal Constitutional Court, 24 September 2003, 2 BvR It concerned a social worker specialising in 1436/02, www.bundesverfassungsgericht.de/entscheidungen/ education who had worn a headscarf for some rs20030924_2bvr143602.html, last accessed 14 May 2010. years while working in a state school, replacing 2 See, for instance, explanatory comments in the Bavarian it with a rose-coloured woollen hat which government draft law, Gesetzesentwurf der Staatsregierung zur Änderung des Bayerischen Gesetzes über das Erziehungs-und fully covered her hair and ears, following the Unterrichtswesen; first reading of draft law in state parliament of new School Act. The court judged that the North Rhine-Westphalia, minutes of plenary proceedings function of the hat was the same as that of a 14/12, p 1018, 9 November 2005; second reading of the draft headscarf and as such must be banned from law amending the school law in the state parliament of Saarland, minutes of plenary proceedings 12/69, 12th the school. In April 2008, the State Labour election period, 69th session, 23 June 2004, p 3684, www. Court4 affirmed the lower court’s ruling in the landtag-saar.de/dms/Land069.pdf, last accessed 14 May 2010; case. According to the State Labour Court, and debates in the state parliament in Baden-Württemberg at the social worker expressed her religious the first reading of the draft law amending the school act on 4 February 2004, plenary proceedings, 13/62, 13th election belief by wearing the woollen hat, thereby period, 62nd session, www.landtagbw.de/Wp13/ violating neutrality and the ‘negative’ religious Plp/13_0062_04022004.pdf, last accessed 14 May 2010. freedom of pupils. Recently, the German 3 Labour Court of Düsseldorf, 29 June 2007, 12 Ca 175/05. Federal Labour Court (‘Bundesarbeitsgericht’) 4 State Labour Court, 10 April 2008, 5 Sa 1836/07, www. lag-duesseldorf.nrw.de/beh_static/entscheidungen/ upheld the decision given by the State Labour entscheidungen/sa/1836-07.pdf, last accessed 14 May 2010. Court.5 The Federal Labour Court applied the 5 Federal Labour Court, August 20, 2009, 2 AZR 499/08, prohibition on the headscarf for teachers in http://juris.bundesarbeitsgericht.de/cgi-bin/ rechtsprechung/document.py?Gericht=bag&Art=pm&Dat such a way that also included substitutes that um=2009&anz=82&pos=0&nr=14046&linked=urt, last cover hair, shoulders and ears like an Islamic accessed 14 May 2010. headscarf, and considered such substitutes as a 6 Federal Constitutional Court, 16 May 1995, 1 BvR religious symbol. 1087/91, http://sorminiserv.unibe.ch:8080/tools/ainfo. exe?Command=ShowPrintVersion&Name=bv093001, last accessed 14 May 2010.

Discrimination Law committee NEWSLETTER December 2010 15 It doesn’t matter whether you are employing a man or a woman – protection for transgender employees

It doesn’t matter whether you are employing a man or a woman – protection for transgender employees Susan Stelzner Edward Nathan he Labour Court in South Africa the opposite sex imprisoned in the wrong Sonnenbergs recently pronounced for the first body. The remedy is surgery which aligns the Cape Town time on transgender issues affecting person’s body with the psychological gender. [email protected] Tapplicants for employment, and in The judge did not accept the company’s so doing reaffirmed the protection accorded argument that it dismissed Atkins for to such persons by the South African dishonesty. It was clear that the only reason Constitution and specific labour legislation. for the dismissal was his disclosure that he Datacentrix (Pty) Ltd interviewed a Mr was going to undergo a sex change. This, Atkins for a position as an IT technician. said the court, was clearly discrimination They were impressed with his credentials on the basis of gender. Such discrimination and offered him the job. While he was is prohibited by both the Labour Relations still working out his notice with his old Act and the Employment Equity Act. More employer, Atkins advised Datacentrix that importantly perhaps was that the company’s he was planning to undergo a sex change argument presupposed that Atkins was under operation, after which he would be a an obligation to disclose his proposed sex woman. The company withdrew its offer of change when attending an interview. The employment claiming that Atkins should have judge said he was under no such duty. disclosed this information to them at his pre- The judge wanted to award Atkins employment interview. In effect he had been substantial damages to teach employers that dishonest and this, said the company, was the they can no longer live in the Dark Ages, but reason for the dismissal (nothing to do with because Atkins had remained employed by his plans to change his sex). his old company he had not suffered much Mr Atkins took the case to the Labour loss. He was therefore awarded five months’ Court claiming automatically unfair pay as compensation. If he had been able to dismissal (on the basis that the company prove further losses he may have received had discriminated against him on the basis more. Employers in South Africa need to be of gender) and the Labour Court gave aware that employees are protected by the judgment in this case in December last year. Constitution against unfair discrimination on It accepted that Atkins was transsexual which any listed or arbitrary ground. Ignoring this is a recognised psychological condition where can lead to serious damages claims. people perceive themselves as members of

16 International Bar Association Legal Practice Division Sex workers win some unfair dismissal rights from South African Labour Appeal Court

Sex workers win some unfair dismissal rights from South African Labour Appeal Court

Stuart Harrison he Labour Appeal Court in South If the Labour Appeal Court had stopped Edward Nathan Africa recently handed down the above findings, Kylie’s victory would Sonnenbergs, judgment in the case of a sex worker have been a largely Pyrrhic one as she Cape Town (referred to as Kylie) who was unfairly would have been left with no practical and T 1 dismissed by the brothel employing her. effective remedy against the brothel that [email protected] The judgment represents a step forward in unfairly dismissed her. However, the Labour the rights of sex workers in South Africa. It Appeal Court went on to find that an unfairly overturned the previous judgment of the dismissed sex worker like Kylie could well be Labour Court to the effect that, although a entitled to monetary compensation if her sex worker employed by a brothel was dismissal was procedurally unfair, because an employee for purposes of the South such compensation is for the loss by an African Labour Relations Act, such a worker employee of her right to a fair procedure, would not be entitled to protection against and not compensation for rendering illegal unfair dismissal. services. Awarding compensation for the The Labour Appeal Court held that the infringement of the right to fair procedure constitutional right to fair labour practices is would not offend the Sexual Offences Act, expressed in the South African Constitution and as such would be appropriate. as vesting in ‘everyone’, which was wide Unless one of the parties appeals against enough to include a person employed in an this judgment, Kylie must now return illegal activity, such as a sex worker. It pointed to the statutory dispute resolution body out that, just because the work performed by that declined jurisdiction to deal with the a sex worker is illegal, this should not deny dismissal claim in the first place, namely the the sex worker of rights to be treated with Commission for Conciliation, Mediation and respect and dignity by others, such as the Arbitration (CCMA), and seek an award of police and the sex worker’s customers. By compensation for the procedural unfairness logical extension, it found that this also meant in her dismissal. How much a CCMA that the employer of a sex worker had similar arbitrator is prepared to award to her for this, obligations to the sex worker, including the remains to be seen. The maximum possible obligation to observe fair labour practice in award is 12 months’ remuneration. the employment relationship. For the brothel owners in South Africa, it That said, the Labour Appeal Court did not seems that they need not be worried about go as far as holding that unfairly dismissed sex whether they have a fair reason to dismiss workers could obtain reinstatement orders their sex workers – they must just make sure when they had been unfairly dismissed. It that they follow a fair procedure in doing so. found that an order of reinstatement in favour of a sex worker would manifestly be Note in violation of the provisions of the Sexual 1 Kylie v CCMA and Others, unreported case No CA10/08, 28 May 2010. Offences Act, which criminalises sex work in South Africa. Similarly, the Labour Appeal Court indicated that compensation for substantive unfairness (ie, where there was no fair reason to dismiss) would amount to the monetary equivalent of reinstatement for the loss of employment, and it would probably be inappropriate for this to be awarded to the sex worker given that the nature of their services rendered are illegal.

Discrimination Law committee NEWSLETTER December 2010 17 Recruitment issues for UK-based employers

Recruitment issues for UK-based employers

iven the scope and extent of new ensure that a job description is written in employment legislation in the plain language and: UK, employers face a myriad of • contains the title and the aim of the job; Keith Corkan complex rules and regulations • sets out the specific duties and G Laytons, London which govern the recruitment process. responsibilities of the post; This article examines a number of these in • is concise and does not overstate a duty or keith.corkan@laytons. particular various codes and practices under the responsibilities attached to it; com the Equality Act 2010, the Data Protection Act • does not include unnecessary requirements, 1998 and immigration procedure. criteria or conditions; and • indicates whether the job can be performed under a range of flexible working options. The recruitment process The EHRC Code also suggests that every During the recruitment process, private selection decision, from shortlisting to information is likely to be obtained at every appointment, is equally important and stage of the process. At the initial application recommends that employers keep records stage an employer might request criminal that will allow them to justify each decision, records, medical or equal opportunities and the process by which it was reached. information (in which sensitive personal These records should also demonstrate that information such as race or ethnic origin, a selection decision was based on objective sexual orientation, disabilities or religious evidence of the candidate’s ability to do the beliefs might be revealed). job satisfactorily, and not on assumptions The interview stage might discuss or prejudices about the capabilities of disabilities (for example if adjustments are certain groups of people sharing protected necessary to enable the candidate to carry characteristics. Employers must balance out the role); a candidate’s home life (for this with their obligations under the Data example if relevant to the requirements of Protection Act 1998 to keep personal data for the job); or religious beliefs (for example if no longer than is necessary. specific prayer or holiday periods need to be The Code recommends that, in addition observed). During the shortlist/offer stage, to keeping relevant recruitment records, checks on criminal record, credit rating or employers should retain any monitoring qualifications might be carried out. information requested for equality purposes A requirement in an advert that the as general statistical data. This can be used candidate must be ‘mature’ may exclude to monitor short and long-term trends in the younger candidates. In Beck v Canadian employer’s recruitment process and, provided Imperial Bank of Commerce ET/2328832/08 it does not directly or indirectly identify a tribunal held that an employee, who was individuals, there should be no data protection dismissed ostensibly for redundancy while issues in keeping and using this data. the bank was actively seeking to recruit a replacement with a ‘younger, entrepreneurial Data protection issues profile’, was unfairly dismissed and subjected to age discrimination. Despite these rules, an employer must have a justifiable need for requesting sensitive personal information, and must obtain and Equality and Human Rights Commission Code use the information in accordance with To avoid claims that a job description the data protection rules. Recruitment unlawfully discriminates against people who information must be relevant to, and not have any of the protected characteristics, excessive for, the particular role and the the Equality and Human Rights Commission particular recruitment stage. For example, (EHRC) Code states that employers should detailed medical information or vetting

18 International Bar Association Legal Practice Division Recruitment issues for UK-based employers checks should normally be obtained only at Immigration issues the offer stage. An employer is liable to a civil penalty if it Information should also be obtained in negligently employs someone who does not the least intrusive way. Similarly, verifying have permission to work in the UK. There is information supplied by the candidate intrudes a statutory defence if the employer checks less than carrying out independent vetting certain documents before the employment checks. Data should not be used for other starts and (in some cases) at least every 12 purposes without the candidate’s knowledge months during employment. In addition, an (and, usually, consent). It should also be shared employer commits a criminal offence if it only with those who need to know. knowingly employs someone who does not have permission to work in the UK. Health issues Guidance provided by the UK Border Agency (UKBA) states that on occasions Pre-employment enquiries about health issues when an employee is unable to produce a are thought to be one of the main reasons document from list A (those with indefinite why disabled job applicants often fail to reach leave to remain) or list B (those with limited the interview stage. Section 60 of the Equality leave to remain), the employer should use Act provides that an employer must not ask the Employer Checking Service (ECS) at about a job applicant’s health (including any the UKBA to verify whether the employee disability) before offering him or her work continues to enjoy the right to work in the or, where the employer is not in a position UK. The employer should warn the employee to offer work immediately, before including in question that it intends to do this. the applicant in a pool of persons to whom Employers should keep a full record of any he intends to offer work in the future. This conversation with the ECS as it is most likely could include a request for a reference. The that the employer (and not the ECS) will be EHRC has power to enforce this provision. An held accountable if it mistakenly dismisses an employer does not commit an act of disability employee with outstanding leave to remain. discrimination merely by asking about a Employers should carry out the above checks job applicant’s health, but the employer’s on all applicants, not merely those who appear conduct in reliance on information given in to be of non-British descent, in order to avoid response may lead a tribunal to conclude that race discrimination. To help employers, the the employer has committed a discriminatory Home Office has issued a code of practice on act. In these circumstances, the burden of avoiding race discrimination in recruitment. proof will shift to the employer to show that Failure to observe the code is not in itself no discrimination took place. unlawful, but may be taken into account by This is not quite a blanket ban on pre- an Employment Tribunal in deciding whether employment health enquiries, however. there has been discrimination. Secrion 60 does not apply to questions that are necessary to establish whether the job applicant will be able to comply with a Extracts from the code requirement to undergo an assessment (such ‘All job selections should be on the basis of as an interview or selection test); whether suitability for the post. You should ensure a duty to make reasonable adjustments will that no prospective job applicants are arise in connection with any such assessment; discouraged or excluded, either directly or whether the applicant will be able to carry or indirectly, because of their personal out a function that is intrinsic to the work appearance or accent. You should not concerned for example scaffolders. The make assumptions about a person’s right employer is also entitled to ask questions to work or immigration status on the basis necessary to monitor diversity in the range of of their colour, race, nationality, or ethnic job applicants; to enable him to take positive or national origins, or the length of time action; or to establish whether the applicant they have been resident in the UK.’ has a particular disability, where having that disability is an occupational requirement. ‘You should only ask questions about an These exceptions suggest that the restriction applicant’s or employee’s immigration upon health questions is not likely to be too status, where necessary, to determine onerous for employers. whether their status imposes limitations on the number of hours they are entitled to work each week, or on the length of

Discrimination Law committee NEWSLETTER December 2010 19 the uk equality act – an update

time they are permitted to work within foul of them and risk discrimination claims or their overall period or type of leave given.’ action by the EHRC and/or the Information Commissioner under the Data Protection Act 1998. Policies and procedures which Conclusion incorporate the various codes not only assist Employers, their HR managers and in-house the compliance process but along with training counsel therefore need to take account of of staff are relevant to liability should any all these codes and practices so as not to fall claims be made or investigations undertaken.

The UK Equality Act – an update

s readers of this newsletter will race, disability, sexual orientation, religion or be aware, the majority of the belief and age (the protected characteristics). provisions of the Equality Act 2010 Examples of significant areas of change Acame into force in the UK on 1 from 1 October 2010 include: Bettina Bender October 2010. The Equality Act extends to • confirmation of protection for people who CM Murray LLP, areas beyond employment law but for the have been discriminated against because London purposes of this article we will focus only on they are associated with someone who has bettina.bender@ the changes relevant to employment law. a protected characteristic (eg, a carer of cm-murray.com For a time, employment lawyers in the a disabled person), or because they are UK were not entirely agreed whether perceived to have a protected characteristic this new piece of legislation was in fact (eg someone who is discriminated against groundbreaking or merely a consolidating because others believe they are gay, even if piece of legislation. The consensus now seems they are not); to be that while the Equality Act is, in part, • the new concept of ‘detriment arising a consolidation of nine separate pieces of from disability’ offers further protection discrimination and equal pay legislation into to workers who can show that they have a single document; it does also introduce new experienced less favourable treatment responsibilities for employers. because of something connected with The Equality Act was the brainchild of the their disability (without the need to former Labour administration. However, establish that their treatment is less following the May 2010 UK general favourable than that afforded to other election, a Conservative-Liberal Democrat non-disabled employees); coalition came to power and government • the extension of employer liability for policy on some of the suggested statutory third party harassment (eg, by a customer provisions of the Equality Act shifted, in or client) to all protected characteristics, particular those which actively sought to except marriage and civil partnership, support equality within society. Accordingly, pregnancy and maternity; there was some confusion in the run up • at the recruitment stage, the Equality Act to 1 October as to which provisions of the has limited the circumstances in which Equality Act would come into force, and the pre-employment health questionnaires can impact that these would have on businesses be used. This will potentially make it more and their employees. difficult for employers to unfairly screen out disabled applicants for jobs; • pay secrecy clauses will no longer be Implementation – 1 October 2010 enforceable in certain circumstances, and Overall, the Equality Act seeks to harmonise any action taken against an employee in this many aspects of protection against direct regard will amount to victimisation; and and indirect discrimination, victimisation • the introduction of new powers and harassment concerning sex (including for employment tribunals to make marriage and civil partnership, gender recommendations which benefit not just reassignment, pregnancy and maternity), the claimant but the workforce as a whole.

20 International Bar Association Legal Practice Division the uk equality act – an update

Additional changes yet to be implemented Amendments to employment documentation Certain provisions of the Equality Act have It is important that HR professionals and not yet come into force, as they remain under their advisers in particular are aware of consideration by the new government as to those changes which should be reflected how or even if they should be implemented. in their company policies, procedures and These include: employment documentation. • potential dual discrimination claims (relating It is recommended that an audit of all to direct discrimination concerning age, existing employment policies be carried out disability, gender reassignment, race, religion to identify any areas in which non-compliance or belief, sex or sexual orientation); is a possibility. For example, a review of a • introduction of the concept of voluntary company’s staff handbook will be necessary in ‘positive action’, meaning that employers relation to certain of its policies, such as those will be entitled to choose to recruit or on equality and diversity, anti-discrimination, promote those from a disproportionately anti-harassment and bullying and equal underrepresented group, so long as that opportunities. Standard employment person is ‘as qualified’ as the other candidate. contracts should also be reviewed in light of This will not, however, permit a general the implementation of the Equality Act. policy of treating people with a protected As always, the true impact of the Equality characteristic more favourably in the workplace Act in terms of changing the employment than those who do not share that protected law landscape and rights of employees will characteristic (other than those with a become more apparent once cases make disability, who may currently be treated more their way through the tribunal system. favourably than a non-disabled individual); The first cases to be decided will make for • the requirement for employers with interested reading. 250 or more employees to disclose information regarding the differences in pay between genders; and • the introduction of a socio-economic duty on public authorities.

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Discrimination Law committee NEWSLETTER December 2010 21 14–15 April 2011 brussels, Belgium

A conference presented by the IBA Employment and Industrial Relations Law Committee and the IBA Discrimination Law Committee and supported by the IBA European Regional Forum

Topics include: • Productivity: tools and best practices for achieving optimal productivity; obstacles and challenges especially in a unionized environment • Mentoring key employees for success and career advancement, the key elements of a successful mentorship program, the role of the manager and the role of the employee • Succession planning for key positions, promotions, avoiding discrimination and unfair treatment claims in the process • Innovative ways to incentivize employees, especially the new generation of employee, obstacles and barriers imposed by legislation or unions which employers must overcome • The challenges of retaining and transferring skills in the world of mobile employment; are long service, institutional history and loyalty to a company or brand still necessary or desirable in today’s world of work? • New developments in EU law: • Equal treatment between men and women • The 2009 EWC Directive • European Company (SE) • Health and safety at work • Global companies challenging EU law

Who should attend? Employment lawyers, human resources professionals, lawyers working for government organisations and

The changing world of work: responding The changing world of work: responding to the challenges of 21st century a global and an EU perspective from in-house counsel.

International Bar Association 10th Floor, 1 Stephen Street London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868 Fax: +44 (0)20 7691 6544 E-mail: [email protected] Website: www.ibanet.org