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