Legal changes to likely affect workplace equality14 December 2012
A number of recent proposals and legal changes are likely to affect workplace equality over the next few years. These relate to equal pay, leave for parents, the representation of women on corporate boards and changes to civil partnership.
1. The recent Supreme Court decision in the case of Birmingham City Council v Abdulla and others UKSC 47 has vastly altered the way in which employees can bring equal pay claims. Prior to this judgment equal pay cases had to be issued in an employment tribunal and the time limit for doing so was six months from the termination of the employment. The position now is that employees will have six years to bring a claim and can do so in the civil courts. Employees who take some time to realise they may have an equal pay claim (e.g. because former colleagues have brought claims) will not now be prevented from doing so provided that six years have not passed.
Whilst ‘equal pay for equal work’ claims are far more commonplace in the public sector, the law provides protection for private sector employees as well. Employers concerned about the potential of spurious claims being brought should take some comfort from the fact that costs are more frequently awarded in civil courts compared to employment tribunals. Unsuccessful equal pay claims in the civil courts may therefore result in hefty costs awards in the employer’s favour.
2. Within the past month the Government has set out proposals to reform leave for parents. Its stated aim is to allow for greater flexibility to share childcare. The proposal allows for what is now maternity leave (ordinary and additional) to be shared between parents. A mother would still have to take two weeks’ compulsory maternity leave, but after that time the remaining 50 weeks could be taken by the mother or the father or a combination of the two (which could also overlap). The 39 weeks of Statutory Maternity Pay (provided eligibility is established) would also be transferrable between the parents. If implemented the change is planned to come in during 2015.
3. The European Commission has recently proposed that there should be quotas for women on executive boards of companies based in the EU. The current idea is to have an objective of attaining 40% female boards by 2020. This would be achieved by companies selecting females over males where their qualifications are on a par. Companies with less than 40% of female board membership would be required to have systems in place for furthering this target or else they would face sanctions. The proposal has been criticised by two sides those who believe it does not go far enough and that the quota should be compulsory (rather than just an objective); and those who believe everyone should be judged on their merits and that there should be no interference and therefore no quota. Whether this type of positive discrimination can be justified under the Equality Act 2010 is debatable. The European case of Kalanke v Freie Hansestadt Bremen ECJ 1996 ICR 314, ECJ Case C-450/93 suggested that positive sex discrimination is already permissible in certain circumstances.
4. On 11 December 2012, the Government published its response following the consultation on equal civil marriage conducted earlier this year. This response sets out the Government’s intention to bring forward legislation in England and Wales to:
- enable same-sex couples to have a civil marriage ceremony
- enable those religious organisations that wish to conduct same-sex marriage ceremonies to do so on a permissive basis only
- provide explicit legal protections for religious organisations that will allow them to continue to operate unhindered within their doctrines and beliefs as they do now
- retain civil partnerships for same-sex couples only
- enable existing civil partners to convert their partnership to a marriage, if they wish
- enable individuals to change their legal gender without having to end their marriage
Clearly this will have repercussions for the existing provisions of the Equality Act 2010 and its work-related provisions.
If you have any questions in relation to workplace equality then please contact our team.