Guidelines for new employment laws
Page 30
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Part-time workers: redundancy and sex discrimination IF YOUR company has any agreement either with your employees or a recognised trade union which provides that parttime workers will be considered first for redundancy before fulltime workers, watch out.
The Employment Appeal Tribunal (EAT), in a ruling which will affect many firms, has recently "outlawed" redundancy agreements whereby parttimers, who are mostly women, lose their jobs first. The EAT found such agreements "grossly discriminatory" under the Sex Discrimination Act.
In Clarke v. Vey Kynlock Ltd and Bey (1A41) Kynloch Ltd V. Powell, the Employment Appeal Tribunal brought the anti-discrimination provisions of both the 1975 Sex Discrimination Act and the 1976 Race Relations Act into the field of industrial relations practice.
The EAT declared unlawful the blanket selection for redundancy of all part-time workers before full-time workers were selected on a last in, first out (Lilo) basis. Since all the part-time workers in this case were women, the failure to give them the benefit of Lifo amounted to indirect sex discrimination, which the employer could not justify.
The requirement or condition that an employee had to work full-time to qualify for redundancy selection on a Lifo basis rather than being selected automatically was found by the EAT in this case to be one with which a considerably smaller proportion of women than men could comply. Moreover, the EAT found that the company could not justify this requirement.
This ruling was based on the premise that the great majority of part-timers in companies are women and they will benefit most by this decision. Nonetheless, if most part-timers in a particular company were men they too could successfully claim unfair dismissal if they were made redundant under such a "parttimers first" agreement.
The decision may well be appealed against — indeed the EAT is hoping that the Court of Appeal or the House of Lords will provide definite guidance for employers, unions and tribunals. The EAT, interestingly, thought that the "last in, first out" traditional formula for redundancy selection did not contravene the sex discrimination law even though fewer women than men have long service with companies.
However, the EAT thought that the present position whereby tribunals have discretion in deciding what is "justifiable" discrimination is too vague, and requires certain guidelines.
Therefore, until clarification arrives, redundancy selection should be made strictly on merit.
Ballot funds for pay offers The 1980 Employment Act provided for a scheme whereby public funds could be made available to re-imburse expenditure incurred by trades unions in holding secret ballots on certain specified matters, including the calling or ending of strikes and the election of union officials. To date the trades unions, as part of their general opposition to this Government's employment legislation, have refused to have anything to do with this scheme and public funds have rarely been used.
Nonetheless, in the belief that common sense or even financial sense may prevail, the Government has now extended the scheme.
Firstly, the Funds for Trade Unions Ballots Order 1982 makes public funds available, as from 16 July 1982, for ballots held with the purpose of obtaining the views of union members on any proposal made by the employer affecting their terms and conditions of employment.
Secondly, the Funds for Trade Union Ballots (Amendment) Regulations 1982 includes within the scheme, as from 1 September 1902, ballots held to obtain the view of union members on any proposal made by the employer relating to pay, hours of work, level of performance, holidays or pensions.
By offering financial assistance to hold secret ballots, the Government clearly hopes to encourage trades unions to make their internal decisionmaking processes more democratic. If, as seems likely, the trades unions ignore such invitations to reform, we have the promise later this year of further legislation on this very point.