An employer is permitted to indirectly discriminate on the basis of one of the nine protected characteristics listed in the Equality Act 2010, only if doing so is a “proportionate means of achieving a legitimate aim”.
In the recent case of Heskett v Secretary of State for Justice, Mr. Heskett, a Probation Officer, was subject to indirect discrimination on the basis of his age. A pay progression policy was changed so that it would take him 23 years instead of 8 years to reach the top pay available for his role, essentially because his employer needed to save money. As one of the younger employees this disadvantaged him.
Typically the courts have held that saving or avoiding cost cannot, on its own, justify indirect discrimination. However, this case is interesting because the Court of Appeal held that an employer’s need to reduce expenditure, including staff costs, in response to financial constraints can amount to justification. Of course the line between the mere saving of cost and the aims upheld as legitimate in this case could be very thin in some situations and the decision should mean that policies which might disadvantage younger or older members of the workforce are easier to defend.
Legislative changes to the employment law landscape tend not to happen too often in the UK, but like buses, this week a few seem to have arrived at once with the publication of the UK Government’s policy paper “Smarter regulation to grow the economy”, which sets out various proposals for changes to existing legislation and the introduction of new legislation.
Most employers are keen to avoid dismissing staff in whom they have invested time and money but this is not always possible.
Non-disclosure agreements (NDAs), sometimes referred to as “gagging clauses”, are rarely out of the news.
On 5 December 2022, following its Making Flexible Working The Default consultation, which has now concluded, the UK government announced that it will be introducing reforms to the law around employees’ rights to make flexible working requests.