Employment Law Update (January 2009)
Anti-discrimination laws - more traps for the unwary
Laws prohibiting discrimination on certain grounds now protect
more people than ever as a result of two recent legal cases.
The cases concern bullying and harassment on the grounds of sexual
orientation and disability discrimination, and in both cases, the
common point was that the employee concerned was not themselves
gay, or disabled.
The important thing for employers to remember is that, in
discrimination law, nothing is simple, and a common-sense approach
does not always help!
"Gay" taunts do not have to be true to be sexual
orientation harassment
Employers will easily understand that name-calling on the
grounds of someone's sexual orientation, or their perceived sexual
orientation, is unlawful and should not be permitted in the
workplace. However, what if workers were subjecting a
colleague to innuendo about his sexuality just because he had
attended a boarding school and lived in Brighton, but did not
really believe the colleague to be gay? Most would say this
banter could not be on the grounds of the colleague's sexual
orientation because he was not actually gay, nor did the
name-callers really think he was gay.
Following decisions in the employment tribunal and the
employment appeals tribunal which confirmed this view, the case was
appealed to the Court of Appeal, which has now decided that this
sort of banter is unlawful under sexual orientation discrimination
law.
The case highlights the importance of employers taking
seriously any grievance they receive from any employees who feel
they have been subjected to bullying or harassment, and taking
advice at that time.
Can an employer be guilty of disability discrimination
even if the employee is not disabled?
The second case concerns an employee who was not herself
disabled but who had a disabled son. The employee felt her
employer treated her less favourably than others because she had
care responsibilities for her son.
Carers of disabled children and adults now have rights to
request flexible working arrangements, but this case was brought
under the Disability Discrimination Act, which aims to protect the
rights of disabled people at work.
It has now been held that the Disability Discrimination Act also
covers discrimination by association with a disabled person, and
the employee him or herself need not be disabled for the law to
apply.
The case should not in practice present problems for
employers who are aware of their obligations under flexible working
laws and who act reasonably, but it does show the increasingly wide
protection given by anti-discrimination laws.
Both cases show how employment law continues to change – and
illustrate how there are always traps for the unwary. Our
advice will always take into account the most recent
developments. Rely on us to keep you right.