EC Boardroom Gender Diversity Proposals Back Away from Mandatory Quotas
The European Commission has published a scaled back proposal to increase the number of women on boards, setting a minimum objective of a 40% presence of female non-executive directors in publicly listed companies by 2020.
There is a powerful business case for addressing lack of female representation in top jobs, the reasons for which are varied and largely intractable. International interest in boardroom gender diversity has grown significantly in recent times and in October the EU Justice Commissioner signalled her intention to introduce decisive legislative action on mandatory gender quotas for corporate boards.
Reportedly, the plan was to force Europe's listed companies to reserve at least 40% of board seats for women by 2020 or face fines or other sanctions. However, stiff opposition from a number of EU member states effectively derailed those plans and the Commission has now published watered down proposals.
Continue Reading...UK Dismissal Protection for Employees with Extreme Political Views Inadequate
The European Court of Human Rights (ECHR) has ruled that the UK Government must take measures to protect employees from dismissal on grounds of their political opinions or affiliations, including extreme opinions that others might find offensive or shocking (Redfearn v United Kingdom [2012] ECHR 1878).
There have been various cases over the last couple of years about the types of belief that fall within the definition of a "philosophical belief" for the purposes of discrimination law, as now contained in the Equality Act 2010. However, this case concerned an employee who was dismissed for his membership of a particular political party.
Continue Reading...El Gobierno de México Demuestra la Intención de Combatir el Acoso Sexual en el Lugar de Trabajo
El 6 de septiembre de 2012, la Suprema Corte de Justicia de la Nación de México publicó un acuerdo general interno que prohíbe expresamente el acoso laboral y sexual y establece los lineamientos para investigar y sancionar dicha conducta. Por otro frente, y lo que podría representar un paso importante hacia una reforma en este tema, el presidente Felipe Calderón presentó una iniciativa para reformar los artículos 47 y 51 de la Ley Federal de Trabajo (LFT) para incluir acoso sexual como causal de rescisión. Aunque las normas de la Suprema Corte se aplican solamente a sus empleados, se considera que éstas son una guía para los patrones en el sector privado de cómo prevenir y eliminar el acoso laboral y sexual en el lugar de trabajo y señala un cambio en cómo la Legislatura probablemente reforme la LFT para regular dichos comportamientos en el lugar de trabajo en México.
Para mayor información sobre la manera en que las acciones recientes del gobierno mexicano para combatir el acoso laboral pueden impactar a los patrones, continúe leyendo la nota de Actualidad Laboral de Littler, México toma medidas para enfrentar seriamente el acoso sexual en el lugar de trabajo (ved aquí para la versión en inglés), escrito por Javiera Medina Reza y Matthew Capelle.
Mexico's Government Signals Intent to Combat Sexual Harassment in the Workplace
On September 6, 2012, the Mexican Federal Supreme Court promulgated internal rules that explicitly prohibit harassment in the workplace and establish guidelines for investigating and punishing such conduct. On another front, and in what represents a significant step towards reform in this area, on September 1, 2012, President Felipe Calderon proposed an amendment to Articles 47 and 51 of the Mexican Federal Labor Law (FLL) to include sexual harassment as new grounds for termination with cause. Although the Supreme Court rules are applicable to employees of that institution only, they are considered a guidepost to private sector employers on how to prevent and eliminate sexual harassment and bullying in the workplace and signal a shift in how the Legislature will likely reform the FLL to regulate these behaviors in the workplace in Mexico.
For more information on how the Mexican government's recent actions to combat workplace harassment may impact employers, continue reading Littler's ASAP, Mexico Develops Steps to Take Seriously Sexual Harassment in the Workplace (click here for Spanish version), by Javiera Medina Reza and Matthew Capelle.
Changes to Key UK Equality Provisions Expected Soon
The Government is consulting on some significant revisions to the Equality Act 2010, including abolishing the discrimination questionnaire procedure and the rules on third-party harassment.
The Equality Act 2010, which brought together all UK discrimination laws in one place, was developed under the previous Labour Government and has been in force since October 2010. However, the Conservative/Liberal Democrat Coalition Government which came to power that year decided not to implement certain parts of the Act, including the provisions allowing a claim for discrimination based on a combination of protected characteristics (e.g. sex and race). It also put on hold the requirement for larger companies to report on their gender pay gap.
Now it looks like the Government is planning some substantive changes to discrimination protection under the Act. The aim of the proposed reforms is said to be reducing "bureaucracy" in equality law. But while these changes will no doubt be welcomed by many employers, on a closer look they may not be as helpful as they first appear.
Third-Party Harassment
The first major change is a proposal to abolish the rules on third-party harassment. Employers are currently liable for harassment of their employees by third parties, such as clients and contractors, if they know an employee has already been harassed twice before and fail to take reasonable steps to prevent a third incident. This is known as the "three strikes" rule.
Continue Reading...Update on Diversity Reporting Requirements
By Kate Jenkins and Lisa Croxford
The last two years have seen some significant changes in the diversity reporting requirements. These have largely, however, been limited to companies listed on the Australian Securities Exchange.
The Equal Opportunity for Women in the Workplace Amendment Bill 2012, recently passed in the House of Representatives, will 'raise the bar' for all employers if it becomes law.
The Bill requires all employers of over 100 employees to report against 'gender equality indicators'. Debate on a number of aspects of the Bill is expected in the Senate.
Now is therefore an ideal time for employers to reassess their current reporting processes, and to consider how to measure their organisation's progress against the new gender equality indicators proposed in the Bill.
Read the full post here.
An Update on Workplace Bullying and Harassment Claims: Employer Successes in Australia
By Kate Jenkins and Trish Low
In this article we examine two recent cases where employers have successfully defended bullying and sexual harassment claims made by former employees. The cases highlight a number of interesting factors, including:
- the high degree of media attention that such cases now attract;
- how media coverage can impact on an employee's claim for damages;
- the level of scrutiny which the courts are prepared to subject a complainant's claims to - in particular, the court's willingness to test an employee's allegations that they have suffered psychological or psychiatric injury as a result workplace bullying or harassment; and
- the costs associated with defending such claims and the courts' willingness to order applicants to pay costs, if their claims are spurious.
Read the full post here.
Discrimination on the Basis of Gender Identity or Expression Now Prohibited in Ontario
Toby's Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012 was passed on June 13, 2012 and received Royal Assent on June 19, 2012, just days before the start of Pride Week in Toronto.
That Act amends the Ontario Human Rights Code ("Code") such that discrimination on the basis of gender identity or gender expression is now prohibited in services, goods, facilities, contracts, employment and vocational associations such as trade unions, trade or occupational associations or self-governing professions. Similarly, harassment in accommodation or employment on those grounds is now prohibited.
Continue Reading...UK Employment Law Reforms - Latest Developments
In the weeks since our previous review, in April, of recent and forthcoming legal changes affecting UK workplaces, the detail of some of the Government's reform plans has become a little clearer and some novel proposals have emerged.
The Queen's Speech
The Queen's Speech on 9 May 2012 heralded two bills that will overhaul significant aspects of employment law - the Children and Families Bill and the Enterprise and Regulatory Reform Bill.
The Children and Families Bill - not yet published - will include some of the reforms mooted in last year's Modern Workplaces consultation, although possibly not all of them. The Government's formal response to the consultation is expected shortly. The most significant proposals were:
- A new system of flexible parental leave, designed to give parents more choice about sharing childcare responsibilities in the early stages of as child's life. In outline, the scheme is likely to entail the mother taking 18 weeks' leave at or around the birth, with the remainder of the current 52-week maternity leave period being reclassified as "parental leave" to be taken flexibly by either parent.
- Extending the right to request flexible working to all workers who have been employed for 26 weeks, irrespective of the reason for the request. This would be based on the existing system for requesting flexible working for children/adult carers, retaining the current list of eight business reasons for employers turning down a request.
No Right for Unsuccessful Job Applicant to Know Outcome of Recruitment Process
By Sophie Maes of Claeys & Engels (the Belgium member of Ius Laboris)
The European Court of Justice (ECJ) has considered a significant issue that may arise where a job applicant is rejected by the prospective employer and brings a discrimination claim. What is the effect of the employer refusing to provide information about whether another candidate was appointed at the end of the recruitment process?
While the ECJ ruled that an employer in this situation does not have a positive obligation to disclose the relevant information, the judgment nonetheless suggests that a refusal to do so could be dangerous for employers in some circumstances.
The case concerned a job applicant who on two separate occasions was not invited to an interview for a similar position at the same company. She brought an action alleging race, sex and age discrimination, requesting that the company produce the file for the person who was ultimately hired. The company refused and the court referred the case to the ECJ, which clarified the legal position as follows:
- A job candidate whose application was rejected and who claims plausibly that he or she meets the requirements listed in the advertisement for the position is not entitled to information indicating whether the employer hired another applicant at the end of the recruitment process.
- However, the employer's refusal to grant any access to information is one factor the court may take into account in deciding whether facts have been established from which discrimination could be inferred.