The Gender Equality Duty

On the 6 April the Gender Equality Duty (“GED”) comes into force under the Equality Act 2006. It has been described as the most important sex equality legislation for 30 years, and will impose a positive duty on public authorities to address the different requirements of men and women among their service users. The duty shifts the balance from an individual being required to show discrimination towards the public authority demonstrating equality. The duty applies equally to the roles of service provider and employer.

Public Authorities

Under the Equality Act 2006, a public authority is defined as “any person who has functions of a public nature” and will therefore cover GP and Dental surgeries.

Service Provider

Male and female service users have different requirements and will approach a service accordingly. The Equal Opportunities Commission gives the example of the provision of service by a General medical practice and states that men are less likely to visit their GP than women; a practice should examine the way their services are provided and whether there are alternatives that would increase use by male patients. This could be the provision of a clinic at football grounds or targeting male patients for specific treatments.

Employer/Employee

The relationship between an employer and an employee is another area targeted by the new legislation. Recruitment and employment policies should be reviewed as the GED imposes the duty on an employer to ensure that the workplace has a gender balance. Are there barriers that are reducing the number of suitable female applicants for posts? Examples of these may be the maternity arrangements available or the provision of flexible working.

Implications

A failure to comply with the GED can result in the imposition of a compliance notice by the Equal Opportunities Commission (which will become the Commission for Equality and Human Rights in due course)

Maternity and Adoption Leave (Amendment) Regulations 2006

Maternity and Adoption Leave (Amendment) Regulations 2006

From 1 April 2007, changes to Maternity Leave entitlements will come into force extending Additional Maternity Leave (“AML”) to all female staff. The legislation also introduces the opportunity for “keeping in touch” days and reasonable contact between the employer and employee. The legislation will impact on all female staff employed by general practices.

Impact on Employers

· 8 weeks notice must be given by the employee that they intend to return before the end of their AML.

· Entitled to Maintain “Reasonable Contact” during the maternity leave to discuss workplace matters. This is to reduce the chances of being accused of harassment during the maternity period although “reasonable” is not defined.

· Salaried female GPs and practice staff will be entitled to 39 weeks paid maternity leave; this has been increased from 26 weeks.

· “Keeping in Touch” days can be agreed with the employee to allow her to attend work for up to a maximum of 10 days without losing entitlement to maternity or statutory maternity pay.

Impact on Employees

· All female staff will be entitled to 52 weeks maternity leave from the 1 April 2007

· There is no longer a requirement to have been with the same employer for 26 weeks to be entitled to AML.

· Salaried female GPs and practice staff will be entitled to 39 weeks paid maternity leave; this has been increased from 26 weeks.

· “Keeping in Touch” days can be agreed with the employer to allow her to attend work for up to a maximum of 10 days without losing entitlement to maternity or statutory maternity pay.

Gifts of money for minor children: how can parents, grandparents, close relatives or god parents provide for children?

Introduction

The birth of a new baby usually associates delighted parents, grandparents or close relatives giving sums of money. If not following the birth, subsequent birthdays and Christmas are traditional times for monetary gifts to be awarded.

The following questions then arise:

What should parents do with the money?

Can it be invested in the child’s name?

Can they spend it freely for the benefit of the child?

Are there any formal restrictions as to what parents can do; perhaps more importantly, what cannot be undertaken.

Monies that are deposited in a bank or building society account

A minor can open a bank or building society account. The Building Societies Act 1986 provides that a minor may be admitted as a member.

However, if the child is not old enough to operate the account, parents may decide to invest the money in their own names. If this is the case, what rights and obligations do the parents then have?

Has a trust been created?

It may well be the case that where say relatives hand over monies to the children’s parents “to hold for the children” that the parents are acting in the fiduciary duty as trustees.

A first consideration is that of “children” – are there step children and children of both parents in the family? A gift for the benefit of “the children” is ambiguous and needs to be clearly defined to avoid future problems arising when “the children” reach their majority.

Are any formalities needed to create a trust?

Section 53 (1) of The Law of Property Act provides that a declaration of trust in respect of any land, be actioned and proved in writing and signed by a person who is able to declare such a trust or by his/her will.

It is clear however that if the declaration of trust is over property other than land (or an interest in land) an oral declaration is sufficient.

Thus a donor who provides money, or other assets to parents, can create a trust in favour of the children without any written document.

Are parents subject to any duties as trustees?

If it is assumed a trust is created –parents (or grandparents) will then be subject to all the formal duties and obligations imposed on trustees. A prime duty here is that in relation to investment.

Generally a will (or any other document creating a trust instrument) will give trustees absolute discretion as to how trust funds should be invested.

Where a gift by a third party is given to the parents to hold on trust “for the children”, it is unlikely that the donor will have given an express power. However, it will be implied if the donor states “use it as you may think fit for the children”. In the absence of any express or implied power, then investments must be made in accordance with the Trustee Act 2000.

Parents may be very surprised to learn that they may be subject to these (onerous) duties with regard to investment of money given to them for the benefit of their children assuming a valid trust is created.

Fortunately, if comparatively small sums are involved –parents will probably discharge their duties by investing monies in National Savings Certificates. However, to avoid any possible hint of criticism in the future –parents would be well advised to take independent financial advice.

Can parents spend the money for the benefit of the children?

The answer here depends on the manner and any powers given to the parents by the donor.

In its simplest form “here is £25.00 spend it on the children for me”. This is an express authority for parents to apply the money for the benefit of the children.

In the absence of such directions – the donor must look to Sections 31 & 32 of the Trustee Act 1925.

In brief terms trustees may, at their sole discretion, pay to a parent or guardian or apply towards the infants, maintenance education or benefit, the income arising “as may in all the circumstances be reasonable”.

In so far as income is not so applied, it has to be accumulated until the infant either attains 18 years or marries under that age.

It is clear that parents have power to apply the whole of the income for the benefit of their children.

A power to advance capital is incorporated within Section 32 of the Trustee Act 1925. This enables Trustees to advance up to one half of the capital to which a beneficiary is, or might be, entitled. Trustees have an absolute discretion as to how such power should be exercised and, in appropriate circumstances, it is possible to widen the discretion to the extent of the whole presumptive capital.

A typical situation could be for Trustees to exercise their discretion, where the minor beneficiary requires special equipment to assist with an educational requirement or need, particularly if an element of disability was involved.

Taxation

Minors are subject to income tax, capital gains tax and inheritance tax in the same manner as adults. The corollary of this is that minors are also entitled to the various tax allowances and reliefs as adults: for example the income tax personal allowance and capital gains tax annual allowance.

There are anti-avoidance provisions in place where it is deemed that income arising belongs to the parent rather than the child (subject to a general exemption of £100.00 gross income per income tax year).

The anti-avoidance provisions referred to above are excluded where grandparents make provision for minor children rather than immediate parents.

Trusts for Bereaved Minors

A donor may wish to make ‘settled property’ or money for the benefit of children; a Will trust could make similar provision. The concept of “Bereaved Minors” trusts was introduced within the Finance Act 2006 – (provided certain qualifying criteria are met); such trustscanhavesignificant IHT advantages.

Summary

A minor can hold a bank or building society account but it must not become overdrawn

Gifts of money for the benefit of children by parents, grandparents, other relatives or friends may create a trust in their favour

Parents and grandparents are subject to the same duties as other trusteesand have the same powers and obligations.

Andrew Murdoch

Associate – 27 March 2007

Disability Discrimination by Association - Complying With EU Law

The Employment Appeal Tribunal (EAT) has handed down a far-reaching judgment in the long-running case of Coleman v Attridge Law, which concerns the interpretation of the EU Equal Treatment Framework Directive and its impact on disability legislation in the UK.

The wording of the Disability Discrimination Act 1995 (DDA), which implements the Directive in the UK, is such that it protects disabled employees but does not appear to afford protection to an employee who is discriminated against because he or she has caring responsibility for a disabled person.

Sharon Coleman contended that she had been discriminated against on the grounds of her son’s disability. She brought proceedings against her employer under the DDA and for unfair dismissal. She claimed that the effect of the Equal Treatment Directive was to outlaw ‘associative discrimination’ and it was open to the Employment Tribunal (ET) to construe the DDA accordingly. The ET referred the question to the European Court of Justice (ECJ), which ruled that the purpose of the Directive, as regards employment, is to combat all forms of discrimination on grounds of disability and that limiting its application to only those people who are themselves disabled would deprive the Directive of an important element of its effectiveness and reduce the protection which it is intended to guarantee. In the ECJ’s view, therefore, where an employer treats a non-disabled employee with caring responsibility for a disabled child less favourably because of the child’s disability, this is contrary to the prohibition of direct discrimination laid down in the Directive. Likewise, the Directive also protects the employee from unwanted conduct amounting to harassment that is related to the disability of the employee’s child.

Following this ruling, the ET Judge ruled that she was obliged to interpret the DDA in such a way as to conform with the effect of the Directive as stated by the ECJ – adding words to the Act if necessary, unless its wording contained ‘an express and unambiguous indication to the contrary’. The ET did therefore have jurisdiction to hear Ms Coleman’s claims of disability discrimination and harassment. Ms Coleman’s employer appealed against this decision.

The EAT dismissed the appeal and ruled that the DDA can be interpreted so as to apply to adverse treatment by reason of the disability of another person. In reaching its decision, the EAT considered the correct interpretation of Section 3 of the Human Rights Act 1998, by which Parliament has decreed that all domestic legislation must be read in a way that is compatible with European Law, typically arising out of a Directive, ‘so far as it is possible to do so’. This has been taken to mean that even if the statutory language is not ambiguous, Section 3 may sometimes require that the legislation be given a different meaning in order to conform with Community law. Although this may look like amending the legislation, that is not the case. Provided that any added words are ‘compatible with the underlying thrust of the legislation’, this does not cross the boundary between interpretation and amendment.

In this case, to give effect to the ECJ’s decision, Mr Justice Underhill would add words to Section 3A of the DDA to the effect that ‘a person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person’. Likewise, words should be added to Section 3B so that the DDA protects an employee from harassment for a reason which relates to the disability of another person.

The case was therefore remitted to the ET to consider, ‘at last’, the merits of Ms Coleman’s claim.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.