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Employment Law Update
17th March 2011
Lousha Bryl
Hugh James Solicitors
Developments • Survival of working time opt-out
• No revised Working Time Directive
• Opt-out of 48 hour working week
continues
• Future: European Commission
The Fit Note • Not fit for work
• Fit for some work taking account
of the following advice
• Identify appropriate support
• Need for change?
The Equality Act 2010
Harmonisation
• No more
- Equal Pay Act 1970
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Disability Discrimination Act 1995
- Regulations relating to age, sexual
orientation and religion/belief
• Condensed and consistent
• List of characteristics protected and overall
definitions remain essentially the same
Strengthening the Law
• Extension of disability discrimination
• Protection of a person associated with a
disabled person
• Extension across the protected characteristics
The Pay Gap
• Discussions with colleagues
• Prohibits gagging clauses
• Pay differential because of a particular protected
characteristic?
• Private organisations: gender pay gap in public
domain
• Voluntary basis initially- 2013 implementation
Pre–employment Health Questions
• Prohibition on asking about the health of an
applicant before offering work
• Defence where employer is looking to establish:
- whether applicant can carry out function
intrinsic to role
- whether there is a duty to make reasonable
adjustments
• Current health questions
• Shift burden of proof
Single Equality Duty
Due regard
Eliminate discrimination
Promote harmonious relations
All protected characteristics
Positive Action
Recruitment and Promotion
Permits employers to take a protected characteristic into
consideration
Where people having the protected characteristic are at a disadvantage or under represented in that workforce
Candidates must be equally qualified
Does not allow automatic policy to treat people who share the protected characteristic more favourably than those who do not
Applies to all protected characteristics
Practical Difficulties
Definition of equally qualified
Risk of subjectivity
Possible claims
Statistical evidence
Robust recruitment procedures
Money Money Money
One weeks pay : £400
Compensatory: £68,400
Statutory Payments : £128.73
SSP: £81.60
Additional Paternity Leave: Law
Due on or after 3rd April 2011
Mothers can return after 6 months
Transfer the unused 6 months to
fathers
First 6 months remains female only
Additional Paternity Leave:
Practice
8 weeks’ written notice
Multiples of complete weeks
Mother’s declaration: name, address, NI information, return to work date
Birth certificate?
Mother’s employment details?
Flexible Working
Extended to parents of children
under 18
Abolition of Default Retirement Age
Currently: Force retirement at 65
Only obligation is meeting 6 months before
April 2011 - default retirement age
phased out
Compulsory retirement if “objectively
justified.”
Case Law Update
Lousha Bryl
Hugh James Solictors
17 March 2011
Disability Discrimination:
Reasonable Adjustments
Investigate availability of other roles
Matters within employer’s knowledge
Barrier of extensive training?
Long term sick implications
Postman Pat and the
Date of Dismissal
EDT: when opened not delivered
Received 30th November
Opened 4th December
EDT: 4th December
Critical for limitation issues
The Importance of the ACAS Code
Avoid being judge, jury and
executioner
Who investigates?
Who chairs the formal proceedings?
Who listens to the appeal?
Religion or Belief Discrimination
Spiritualism and life after death
Dismissed: work with neighbouring
forces and in the psychic field
Unacceptable manifestation of
beliefs
Sexual Orientation Discrimination
Making a pub less attractive to gay customers
Sign
Seating arrangements
Personnel
Personal displays of affection
Direct discrimination
Constructive dismissal
Recommended