Rules of engagement
The percentage of women in the labour force is increasing, particularly in the hotel and catering industry. Most part-time workers are female, and this trend is set to continue. But despite legislation aimed at ensuring equality, an ingrained reluctance to employ women persists in some areas.
On 6 February 1995 the Employment Protection (Part-Time Employees) Regulations 1995 came into force. Part-timers now enjoy unfair dismissal and redundancy protection and are entitled to written particulars of employment. Employee performance, whether full-time or part-time, should now be assessed in advance of two years' continuous employment.
The change in status of part-timers was prompted by the decision last year that as 87% of part-time workers are female the five-year qualifying period to acquire employment rights constituted an indirect form of sex discrimination.
All employees have the right not to be discriminated against on grounds of race or sex, the right to equal pay, and, for women, the right to maternity benefits. As well as avoiding the expense of tribunals, an effective equal opportunities policy can reduce staff turnover. The main anti-discrimination legislation is as follows:
Sex Discrimination Act 1975
This Act makes it unlawful to discriminate directly or indirectly against an employee on grounds of sex or marital status. Direct discrimination occurs where an individual is treated less favourably than a person of the opposite gender. An example of this is recruiting "attractive female barstaff".
Indirect discrimination occurs where a requirement or condition applies equally to both sexes, but a smaller proportion of one gender can comply with it, although it is not necessary for the job. For example, the requirement to wear a uniform only suited to females. Exceptions are allowed where there is a genuine occupational qualification (GOQ) for the job, for example recruiting only women as attendants in ladies' cloakrooms.
The equal pay act 1970
The Act requires not only equal pay for men and women doing the same job, but also for work of equal value for the same or linked employers.
If the work done by a woman is the same as that done by a man, even if the man has occasional extra duties, the woman can claim equal pay if she can show that the extra duties are not of practical importance.
Two very different jobs may have equal value if they demand the same effort and skill. An important case held that a cook was of equal value to a male shipyard worker. Employers must not give undue value to typically male qualities at the expense of typically female qualities.
The race relations act 1976
The Race Relations Act makes it unlawful for an employer to discriminate directly or indirectly on grounds of colour, race, nationality or ethnic or national origin. Exceptions are allowed, such as GOQ, (the need for Chinese waiting staff in a Chinese restaurant, for example).
Direct discrimination occurs where a person is treated less favourably on racial grounds than someone else. Indirect discrimination occurs when an employer applies a condition equally to all, but a smaller proportion of people from one racial group can comply with it, and it is not necessary for the job.
Complaints of infringements of these acts are dealt with by Industrial Tribunals. Where sex or race discrimination has been established, there is no limit to the compensation tribunals can award. They can take into account the codes of practice issued by the Equal Opportunities Commission and Commission for Racial Equality so it is advisable to follow these codes. ACAS, CBI, the Employment Service and Department of Employment also publish guides.
Good practices include:
A policy of equal opportunity and training staff on this policy as you can be held responsible for their actions;
Flexible working arrangements;
Promoting equality at all stages -ie selection to training;
A grievance procedure to deal effectively with alleged discrimination, and ensuring that employees know allegations will be taken seriously. Legal advice can be taken to establish good practice.
The Court of Appeal recently ruled against the law requiring people to work for an employer for two years before they may claim unfair dismissal. The ruling was made on the basis that the requirement was discriminatory because fewer women than men would qualify.
Michelle Haste is an employment solicitor at Brown Cooper. Enquiries: 0171-404 0422 (fax: 0171-831 9856).
