PJH Law Employment Law Update 2006

1. PJH Law Employment Law Update 2006

2. PJH Law Employment Law Update 2006 • Welcome ! • Ice breaker • Age Discrimination • TUPE • Work and Families Act 2006 • High Impact - Q and A

3. PJH Law Employment Law Update 2006 Ice Breaker

4. PJH Law Employment Law Update 2006 Age Discrimination

5. PJH Law Employment Law Update 2006Age Discrimination • Policy Background • Scope • Key Definitions • Practical Implications • Unlawful Acts • Practical Implications • Liability • Practical Implications • Retirement • Practical Implications • Miscellaneous • Case Law

6. PJH Law Employment Law Update 2006Age Discrimination • Policy Background • 2000 Directive “Supporting older workers in order to increase their participation in the labour force” • UK Strategy to increase over 50s in workforce by 1 Million • Demographics – 2004 - 33% 50+ 2024 - 50% 50+

7. PJH Law Employment Law Update 2006 Age Discrimination • Scope • 1 October 2006 • Covers • Applicants for work • Employees/In Employment • Agency Workers • 65 or below

8. PJH Law Employment Law Update 2006Age Discrimination • Key Definitions: • Direct • Indirect • Victimisation

9. PJH Law Employment Law Update 2006 Age Discrimination • Key Definitions: • Direct • On grounds of age (or apparent age) A treats B less favourably and • Cannot show that the treatment is a proportionate means of achieving a legitimate aim

10. PJH Law Employment Law Update 2006Age Discrimination • Key Definitions: • Indirect • A applies to B a provision, criterion or practice • Which puts or would put persons of same age group as B at a particular disadvantage and • Employer cannot show the provision, criterion or practice to be a proportionate means of achieving a legitimate aim

11. PJH Law Employment Law Update 2006Age Discrimination • Key Definitions: • Victimisation • A treats B less favourably by reason of • B brought proceedings against A or any other person • Given evidence or information in proceedings • Done anything under the Regulations • Alleged that A has committed an act which would contravene the Regulations • Or A’s suspicion that B may do any of the above Protected Acts

12. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • Selection: • Arrangements • Terms • By refusing to offer employment • Exception – • Where Applicant is 65 or will be 65 within 6 months of date of Application

13. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • Selection – Practical Implications: • Check adverts/instructions to agencies • Job specs • Application forms – date of birth, photo, other dates • Review interview questions • What not to do!

14. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • Selection – What not to do! • Some real adverts found on the internet this week: • PR Account Manager - East Midlands “Our client looking for a young, dynamic PR professional with ….”

15. PJH Law Employment Law Update 2006 Age Discrimination • Sales Executive - Oxford “This internal sales role requires a recent graduate, able to demonstrate sales potential by being confident, articulate, motivated and focused. IT knowledge is beneficial, however unnecessary as full training will be given….” • Finance solicitor – Manchester “We are looking to appoint a Solicitor to our growing Banking and Finance department. The successful candidate will be up to four years PQE….”

16. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • During Employment: • Terms • Opportunities for Promotion, Transfer and Training • Exceptions – NMW – Age differences • Exception for service related benefits up to 5 years service • Exception for service related benefits greater than 5 years service if fulfils a business need eg: retention, encouragement, motivation tool • Exception for enhanced redundancy payments • Exception for Positive Action • Dismissal

17. PJH Law Employment Law Update 2006Age Discrimination • Unlawful Acts: • During Employment - Practical Implications: • Review benefits • Review redundancy selection criteria • Use volunteers for redundancy more • Ensure managers are aware of law when applying selection criteria

18. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • During Employment - Harassment: • A subjects B to harassment on grounds of age which is unwanted and has the effect of: • Violating B’s dignity • Creating an intimidating, hostile, humiliating, degrading or offensive environment

19. PJH Law Employment Law Update 2006 Age Discrimination • Unlawful Acts: • During Employment – Harassment, Practical Implications: • Mind your language – one comment is enough! • Update harassment policy and procedure • Update disciplinary procedure to reference age harassment • Raise awareness amongst employees • Birthday cards?

20. PJH Law Employment Law Update 2006 Age Discrimination

21. PJH Law Employment Law Update 2006 Age Discrimination • Establishing Liability for Discrimination: • ET have jurisdiction • Once less favourable treatment established • Burden on Employer to prove it was not discriminatory • Employers vicariously liable for employees’ actions • Employees can be individually liable

22. PJH Law Employment Law Update 2006 Age Discrimination • Establishing Liability for Discrimination: • Employers have defence of take such steps that were reasonably practicable to prevent employees from discriminating

23. PJH Law Employment Law Update 2006Age Discrimination • Establishing Liability for Discrimination: • ET Remedies: • Recommendation to remove requirement, practice etc • Compensation for loss • Injury to Feelings • Unintentional indirect discrimination, compensation not automatic unless recommendation not complied with

24. PJH Law Employment Law Update 2006 Age Discrimination • Establishing Liability for Discrimination • Practical Implications • Update Equal Opportunities Policy to reference age • Train employees in Equal Opportunities • Update Employees of changes

25. PJH Law Employment Law Update 2006Age Discrimination • Retirement: • Not unlawful to dismiss where reason is retirement at 65 or above • NRA of below 65 has to be justified • New obligations on Employer to consider employee’s request to work past NRA

26. PJH Law Employment Law Update 2006 Age Discrimination • Retirement: • Employer must notify employee of impending retirement • When? • Not more than one year not fewer than 6 months before retirement date • If failure, continuing obligation up to 14th day before retirement date • How? • In writing by notifying the employee that he has right to request to work beyond retirement age and notification of retirement date

27. PJH Law Employment Law Update 2006 Age Discrimination • Retirement: • Employer must consider any written request made by employee to work beyond IRD • The written request must be made between 3 to 6 months of IRD • How? • In good faith • Have a meeting within reasonable period • Written decision as soon as reasonably practicable, giving right of appeal and retirement date • Retirement delayed until letter sent • Any appeal must be made as soon as reasonably practicable • Meeting within reasonable period • Written decision as soon as reasonably practicable

28. PJH Law Employment Law Update 2006 Age Discrimination • Retirement -Transitional provisions • Differ slightly for anyone reaching NRA before 1st April 2007. • Employer must notify asap after 1st October 2006. • Give contractual notice and inform of right to request not to retire. • Employee must make request at least 4 weeks before intended retirement date. • If not possible as soon as possible after employers notification (but not more than 4 weeks after employment terminates) • Dismissal still takes effect if duty to consider process not complete but procedure will continue after dismissal.

29. PJH Law Employment Law Update 2006Age Discrimination • Miscellaneous: • Redundancy Payment 1/12 reduction per month between 64 and 65 has gone • Redundancy Payment possible over age of 65 • Unfair Dismissal if retirement procedure not followed • Unfair Dismissal applies over 65

30. PJH Law Employment Law Update 2006Age Discrimination • Case Law • Cadman v HSE (ECJ) • ECJ decided that the general rule is that employers are entitled to use length of service as an appropriate and legitimate way of rewarding experience that allows an employee to do a better job. • Equal Pay case but may be able to draw parallels

31. PJH Law Employment Law Update 2006 Age Discrimination • Key Points: • Retirement Age 65 but challenged by Heyday • New requirement to notify employee of intended retirement and right to work past IRD • Unfair Dismissal if retirement procedure not followed • Age discrimination unlawful unless justifiable • Mirrors other discrimination legislation • Update Equal Opportunities Policy, Harassment Procedure and Disciplinary Procedure

32. PJH Law Employment Law Update 2006 Pension Regulations • Key Points: • In force 1 December 2006 • Applies to all Occupational Pension Schemes (DC and DB) • Unlawful for employers and trustees to discriminate on grounds of age against member or prospective member • Objective Justification Possible • Numerous Exemptions

33. PJH Law Employment Law Update 2006 Pension Regulations • Key Points: • Numerous Exemptions: • Minimum and Maximum Admission Age  • Minimum age for entitlement to and payment of benefits • Using age criteria in actuarial calculations • Calculating DB benefits on basis of pensionable service

34. PJH Law Employment Law Update 2006 Pension Regulations • Key Points: • Numerous Exemptions: • Closing schemes to new entrants • Age related practices complying with Tax Rules • Different contribution rates based on pensionable pay

35. PJH Law Employment Law Update 2006 TUPE 2006

36. PJH Law Employment Law Update 2006 TUPE Regs • Key Points: • In force 6 April 2006 • Widens definition of Relevant Transfer to include Service Provision Changeover (SPC) • Service Provider must have dedicated team • Contracts for provision of goods excluded

37. PJH Law Employment Law Update 2006 TUPE Regs • Key Points: • Employee Liability Information must be provided 14 days pre transfer • Information is wide includes disciplinary and grievance data for previous 2 years • Minimum penalty of £500.00 per employee payable to incoming contractor • Joint and Several liability for failure to consult

38. PJH Law Employment Law Update 2006 • COFFEE BREAK

39. PJH Law Employment Law Update 2006 • Work and Families Act

40. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • What we know now • What may come in

41. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • New Southern Railway Ltd v Quinn • Railway station duty manager became pregnant • Management jumped to conclusion that there was risk to woman in this role • Demoted to ‘safe’ desk job as PA

42. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • New Southern Railway Ltd v Quinn • Tribunal found: • Small risk to woman doing DM role • Avoiding risk does not mean eliminating risk, only means reducing risk to lowest acceptable level • Small risk can be acceptable and may not justify demotion or suspension

43. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • New Southern Railway Ltd v Quinn • Carry out risk assessment • Consider preventative or protective measures • Alter work conditions • Offer suitable alternative employment • Suspend on maternity grounds

44. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • Commotion Ltd v Rutty • First reported case on flexible working • Woman informally requested flexible working • Request rejected • Woman formally requested flexible working • Request rejected • Woman commenced ET claim

45. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • Commotion Ltd v Rutty • EAT held: Tribunal not entitled to adjudicate on reasonableness of grounds • But can examine evidence as to what would have been effect of granting FW application: • Could it have been coped with without disruption? • What did other staff feel about it? • Could they make up the time?

46. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • Commotion Ltd v Rutty • Tribunal decided evidence did not support employer’s rejection of FWR • Tribunal also found that formal FWR was a grievance! (probably only because informal request had failed first)

47. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • Hoyland v ASDA Stores Ltd • Woman absent for 26 weeks maternity leave • Discretionary Bonus normally pro-rated to reflect PT work and absence • Mrs Hoyland’s bonus was pro-rated from £189.47 to £94.48 due to maternity leave

48. PJH Law Employment Law Update 2006 Work and Families Act • Family Friendly cases in the last year • Hoyland v ASDA Stores Ltd • Court of Session held: • Not sex discrimination as payment of money regulated by contract • Bonus part of “Wages or Salary” • Not paying bonus for the 2 weeks’ compulsory leave period was a ‘detriment’ under ERA (£5.20 was awarded!)

49. PJH Law Employment Law Update 2006 Work and Families Act • Background • Policy : Choice for Parents, the best start for children: a ten year strategy for childcare • EOC’s report “Britain’s Hidden Brain Drain” in Sept 05 suggested the current flexible and part-time arrangements in Britain failing. Absenteeism is higher, morale and retention lower. According to the report: “Britain’s old fashioned thinking about working is literally damaging its economy as well as its welfare and health. Too many people are either over-worked, stressed or under-utilised.”

50. PJH Law Employment Law Update 2006 Work and Families Act • Background • TUC published a report in Nov 05 entitled “Challenging Times” suggesting that 75% of UK employees have no flexibility in their employment contracts and 40% would welcome the chance to reduce their hours. • Work and Families Act 2006 • Enabling Legislation