I often feel that Employment Law changes more rapidly than any other branch of law, largely because of new requirements from Europe. There have been three developments of general interest through the last six months or so.
1. It is likely that any discriminatory treatment of a pregnant woman would be automatically sex discrimination. But what is the position with continuing absence due to, say, post-natal depression? Is that sex discrimination?
The likelihood is that it is not sex discrimination because it is not “pregnancy-related”, provided that a male employee with similar absences from work would have been treated in the same way. But this is yet another example of the complexity of modern Employment Law, because “depression” can come within the classification of “disability”, and hence the female dismissed for non-attendance caused by post-natal depression may be able to bring a claim under the heading of “Disability Discrimination”.
2. The right to request flexible working has been extended to all employees after 26 weeks continuous employment, not just those with parental or caring responsibilities. The employer does not have to grant the request, but he does have to take it seriously because if he refuses, the refusal has to pass the test of “reasonableness”. This is a stricter test than previously, bringing in the subjective judgment of an Employment Tribunal, whereas previously the employer did not have to justify his reasons for refusing the request. If an employer is found to have acted unreasonably, or not considered the request seriously, the maximum compensation to be awarded is eight weeks’ pay, capped at the Statutory maximum (which increases each year and is currently £464 per week).
Once again major problems could be caused by the almost impossible complexity of the interrelationship between European Regulations. For example, if to maintain an acceptable level of work output only one employee’s request can be granted, how is an employer to measure, say, an employee who needs to care for a 90-year-old father against a woman who wants to care for her 50-year-old mother? If the employer decides that care of a 90-year-old is more important than care for a 50-year-old, that could be age discrimination: and if the employer’s reason involves the gender either of the employee or of the disabled person, the Pandora’s Box of sex discrimination could be opened.
ACAS apparently considers that employers should make no value judgments, but that is hardly possible if the employer has to select between competing claims. The employer must make absolutely sure that its reasons are recorded and that no part of that reasoning relates to any of the “forbidden discriminations”, being broadly sex, age, disability, religious belief, race or nationality, sexuality.
3. It is believed that e-cigarettes are not covered by the no-smoking law for public places. Thus they can be “smoked” in restaurants and pubs.