Joint RCN Representatives Conference – legal update (2009)

1. Joint RCN Representatives Conference – legal update (2009) Chris Cox Director of Legal Services Royal College of Nursing

2. Disciplinary and grievance procedures • End of statutory resolution • 6 April 2009 • Transitional arrangements • ACAS code; 25% increase/decrease in awards • Reinstate ‘Polkey’ – failure to follow contractual procedure renders dismissal unfair, but compensation may be reduced (to £0) if would not have made any difference to outcome • Crucial importance: LIMITATION PERIODS

3. Paid holiday • House of Lords judgment in H M Revenue & Customs v Stringer and others [2009] UKHL 31 • Entitlement to 4 weeks (now 5.6 under WTR 98) paid annual leave during long-term sickness absence; entitlement to pay in lieu of untaken annual leave when contract terminated • Jurisdiction point: entitlement claim an unlawful deduction of salary. Advantage of being able to claim backdated failures to pay over many years • What wasn’t decided? • Practical advice • Notice of request for annual leave in relevant leave year: when; notice at least twice number of days to be taken

4. Equality Bill (Spring 2010) • Restating the law in a more logical and accessible form • Extension of scope of public sector equality duties to cover: religion, sexual orientation and age – to be modelled on duties on race, disability and sex • Encouraging organisations with 250+ employees to publish details of pay gender gap (2013) • Positive action in limited circumstances • Discrimination by association with those with a disability • Duty on public authorities to consider ‘socio-economic disadvantage’ when taking strategic decisions about how to exercise their functions

5. Safeguarding vulnerable adults and children (1) • Independent Safeguarding Authority (ISA) • Listing and barring – 12 October 2009 • Since 20 January 2009: • Barred lists in place • Referrals still made under the POVA and POCA criteria (misconduct, harm/risk of, dismissal/resignation) • But decided upon by the ISA, not the SoS • Consequence of being on barred lists the same as POVA/POCA • Using the SVGA procedure

6. Safeguarding vulnerable adults and children (2) Differences between the schemes: • Single stage decision (no provisional listing) • Opportunity to make representations in most cases • ISA considers actual guilt • More restricted right of appeal • “Mistake of fact or law” • Not appropriateness Impact of House of Lords’ judgment in Wright?

7. Overview of equal pay • Equality Bill – little impact on equal pay (private sector employers to report on gender pay gap; unlawful to prevent employees revealing pay) • 2008 Court of Appeal – judgments have left us with uncertainties, and failed to allow appeals to Lords • Widening of gender pay gap between 07 and 08 (median hourly pay gap up to 12.8% from 12.5%) • Litigation in public sector – very little in private sector. Predominantly local authority and NHS • Loss of sight of who is responsible for pay rates

8. Hartley • Claims against AfC: JES was corrupted by unions and Government interference; pay system in place prior to AfC characterised by endemic sex discrimination, perpetuated by AfC (assimilation, pay protection, RRP); design of AfC JES faulty • AfC commended by EOC as example of good equal pay practice • All criticism rejected by ET • No appeal • Continuation of backdated claims

9. Age discrimination (1) • Redundancy schemes: MacCulloch v ICI plc[2008] IRLR 846 – claimant aged 36 with 7 years service = 55% gross annual salary; compared with someone 50-57 with 10+ years service = 175% annual salary • ET: proportionate means of achieving legitimate aims (encourage and reward loyalty; larger payment for vulnerable older workers; avoided compulsory redundancies through popularity) • EAT: ET failed to apply proportionality test correctly i.e. balance reasonable needs of business with discriminatory effects on claimant

10. Age discrimination (2) • “Nowhere in this decision is there a considered recognition of the degree of difference in the payment made to the claimant and the comparator, and an assessment as to whether this is reasonably necessary to achieve the objectives of the scheme” • Loxley v BAE Systems Land Systems (Munitions & Ordinance) Ltd [2008] IRLR 853 • Contractual redundancy scheme which paid benefits only to those under age 60 at the date of redundancy had to be justified as a proportionate means of achieving a legitimate aim

11. Age discrimination (3) • 61 year old; volunteered for redundancy; no entitlement under scheme and received only statutory plus notice; at 57 would have received two years’ contractual redundancy pay based on pensionable salary plus 6 months pay in lieu of notice. • Was it proportionate to exclude claimant from any redundancy payment altogether because of his entitlement to a pension? • Rolls Royce plc v Unite The Union [2009] IRLR • Court of Appeal upheld High Court that length of service was discriminatory but justifiable. • Redundancy selection procedure agreed between union and employer

12. Age discrimination (4) • Length of service one of 6 criteria, with one point awarded for each year of service • Unite argued it was an objective and generally accurate measure of the loyalty and expertise of employees; also older workers required additional protection in a redundancy selection exercise as they were likely to find it more difficult to secure alternative employment if made redundant

13. Statutory retirement age • Default retirement age: Heyday • ECJ followed Advocate General: derogation must be ‘only in respect of measures justified by legitimate social policy objectives, such as those relating to employment policy, the labour market or vocational training’. For the national court to decide whether the implementing legislation is in line with such objectives. • To return to national court.