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EMPLOYMENT UPDATE

EMPLOYMENT UPDATE. 1. RETIREMENT UPDATE. DRA 65 to be abolished (consultation closed) Still retire staff whose 65 th birthday falls before 30.09.11 Must still follow statutory retirement procedure to avoid claims Retirement procedure to be abolished 06.04.11

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EMPLOYMENT UPDATE

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  1. EMPLOYMENT UPDATE

  2. 1. RETIREMENT UPDATE • DRA 65 to be abolished (consultation closed) • Still retire staff whose 65th birthday falls before 30.09.11 • Must still follow statutory retirement procedure to avoid claims • Retirement procedure to be abolished 06.04.11 • Transitional arrangements apply to retirements already in motion where retirement notification already given, retirement before 1 Oct and statutory requirements met • Expected that “retirement” to be removed as fair reason for dismissal (s98 ERA 1996)

  3. 2. WHAT NEXT? • Retain a retirement age 1. What do you set as CRA? 2. Can you objectively justify act of age discrimination? - s13 – direct discrimination due to protected characteristic - s13(2) – carve out to allow OJ of direct age discrimination (unique) - s19 – indirect discrimination (PCP) - proportionate means of achieving a legitimate aim - “employer justified retirement age” 3. Can you also demonstrate fair reason for dismissal and fair process?

  4. 3. WHAT NEXT? • Proceed without a defined retirement age • Deal with retirement on case by case basis OR • Dismiss for other reasons, eg. capability, poor performance, improve voluntary retirement process • Government expected to publish Code of Practice on retirement dismissals and guidance for employer on managing without a retirement age

  5. 4. RELEVANT RETIREMENT CASES • Seldon v. Clarkson Wright and Jakes (BIS intervening) (CA 2010) • Rosenblat v. Ollerking Gebaudereiningunsges GmbH (ECJ 2010) Best Practice: 1. Timetable retirement dismissals before 01.10.11 Make business decision on what to put in place 06.04.11 [continued …]

  6. RELEVANT RETIREMENT CASES [cont] Any CRA needs to be OJ – gather as much information, data and reasoning as possible to justify CRA – consult with TUs and workforce (critical) CRA – agree with workforce/TUs a fair retirement process Look to introduce or amend voluntary retirement schemes

  7. 5. EQUALITY ACT 2010 • Protected characteristics (“PC”) = age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation • Gender reassignment – no need to be under medical supervision now • Direct discrimination (s13) – definition wide enough to cover discrimination on grounds of perception or association (“because of a PC”) [continued …]

  8. EQUALITY ACT 2010 [cont ...] • Indirect discrimination – definition such that concept limited to those with a PC (does not extend to association) • Harassment (s26) – “unwanted conduct related to a particular characteristic” – wide enough to cover harassment due to “association” to a person with PC or perceived PC • Harassment by third parties (s40) – employer liable for persistent harassment of employee by third parties (covers all PC, before was just sex) – [continued …]

  9. EQUALITY ACT 2010 [cont ...] knowledge of harassment, in course of employment, on at least two occasions, no reasonable practicable steps to prevent • Pre-employment health questionnaires – unlawful until offer stage, save for exceptions • Secrecy clauses – unenforceable where there is relevant pay disclosure • Compromise agreements? • Positive action and pay transparency - suspended

  10. EQUALITY ACT 2010 [cont ...] Best Practice: • (Statutory defence s109 – “reasonable steps to prevent”): amend existing EOP/harassment policy, updated examples/definitions • Policy on third party harassment and duty on employee to notify company • Distribute revised policies and obtain signatures – “read, understood and agree to abide by” • Refresher training across business • Signs in workplace regarding harassment towards staff

  11. 6. DATE OF DISMISSAL • Gisda Cyf v. Barratt (S/C 2010) • EDT date read letter, not date sent or arrived at home address Best Practice: • Communicate dismissal decision verbally wherever possible and confirm in writing • Where making decision in letter and not communicating verbally, arrange personal delivery where possible.

  12. 7. INFORMATION AND CONSULTATION • TUPE 2006 and TULR(C)A 1992 • Todd v. Strain (EAT 2010) – “measures” • Todd v. Care Concern (EAT 2010) – protective award (amount and joint liability) • USA v. Nolan (CA 2010) – when does consultation begin? • Lancaster University v. The University and College Union – protective award Best Practice: • Measures can include administrative changes [cont …]

  13. INFORMATION AND CONSULTATION [cont] • I&C should always be undertaken – some I&C better than none at all • Obtain indemnities and warranties in any business sale agreement • Remember winning a contract/tender may be a service provision change

  14. 8. DISCRIMINATION AND JUSTIFICATION • Woodcock v. Cumbria Primary Care NHS Trust (EAT 2010) • Cost and justification defence Best Practice: • Cost alone may now be a reason to justify discrimination contrary to previous authorities – take legal advice though! • Must be where the cost of avoiding or rectifying discrimination is disproportionately high

  15. 9. REFUSAL OF RE-ENGAGEMENT AND MITIGATION • Bloxwich Fencing v. Banks (EAT 2010) • Employee’s refusal of re-engagement was not a failure to mitigate Best Practice: • Demonstrates importance of meaningful consultation in lead up to termination and re-engagement on new terms • Important to avoid breach of implied terms of trust and mutual confidence arising from manner in which dismiss and offer re-engagement

  16. 10. REASON DISMISSAL • Celebi v. Compass Group (EAT 2010) • Dismissal for theft • Allegation “loss of £3,000” • Unfair dismissal due to lack of precision Best Practice: • State clearly allegation you are making • Ideally link allegation to examples set out in disciplinary policies or procedures • Identify whether allegation is of gross misconduct which could result in summary dismissal, or misconduct

  17. 11. RESTRUCTURING/REDUNDANCY • CIBC v. Beck (EAT 2010) • Restructuring, no redundancy • S139: “requirements for business for employees to carry out work of a particular kind have ceased or diminished” Best Practice: • Before commence any consultation process, need to critically analyse roles under new structure with those under old structure to determine if fall within s139 • Differences in roles need to be material and actual

  18. 12. SPIRITUALIST BELIEFS • Power v. GMP (EAT 2010) • Dismissed because of way he promoted his spiritualist beliefs at work • Lawfully discipline employees where inappropriately manifest protected beliefs in workplace Best Practice: • Identify distinction between treatment on grounds of a person’s belief and treatment on the ground of the manifestation of those beliefs • Consider updating EOP

  19. Taylors Solicitors Employment Team Oliver McCann – Elaine Hurn – James Bellamy Rawlings HouseExchange StreetBLACKBURNBB1 7JN Ninth Floor 80 Mosley Street MANCHESTER M2 3FX Tel: 0844 8000 263 www.taylors.com

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