PJH Law Employment Law Update 2006

PJH Law

Employment Law Update 2006

PJH Law Employment Law Update 2006

Welcome ! Ice breaker Age Discrimination TUPE Work and Families Act 2006 High Impact - Q and A


Ice Breaker


Age Discrimination


Age Discrimination

Policy Background Scope Key Definitions

– Practical Implications Unlawful Acts

– Practical Implications Liability

– Practical Implications Retirement

– Practical Implications Miscellaneous Case Law


Age 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+


Age Discrimination

Scope

– 1 October 2006 – Covers

• Applicants for work• Employees/In Employment• Agency Workers• 65 or below


Age Discrimination

Key Definitions:– Direct– Indirect– Victimisation


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


Age 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


Age 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


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


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!


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 ….”


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 up to four years PQEto four years PQE….”


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


Age 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


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


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?


Age Discrimination


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


Age Discrimination

Establishing Liability for Discrimination:

– Employers have defence of take such steps that were reasonably practicable to prevent employees from discriminating


Age 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


Age Discrimination

Establishing Liability for Discrimination

– Practical Implications• Update Equal Opportunities Policy to reference age• Train employees in Equal Opportunities• Update Employees of changes


Age 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


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


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


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.


Age 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


Age 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


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


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


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


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


TUPE 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


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


COFFEE BREAK


Work and Families Act



Family Friendly cases in the last year

What we know now

What may come in




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




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




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




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




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?




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)




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




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!)



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.”



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



What we know now:

Maternity Leave– Applies to births after 1 April 2007

– Qualification for OML and AML harmonised down to OML

i.e: 26 weeks service in 15th week before EWC

– OML & AML each still last for 6 months

– 8 weeks notice of return



What we know now:

Maternity Leave– Leave not brought to an end by up to 10 days work

– Any work in a day counts as a whole day

– No right to insist employee works

– No right for employee to insist she works

– Any work done does NOT extend SML period



What we know now:

Maternity Pay– For births after 1 April 2007

– 39 weeks (9 months) SMP

– Will not be affected by up to 10 “keeping in touch days”

– Additional remuneration for work done on keeping in touch

days is negotiable



What we know now:

Adoption Leave and Pay– Mirrors Maternity leave and pay



What we know now:

Flexible working to apply to:• those with parental responsibility for a child under 18 years of

age

• carers of adults (carer to be defined later this year)

• adult must:

– be married to or the partner of the employee; or

– be a 'near relative' of the employee; or

– live at the same address as the employee.



What may come in:

– Maternity Pay Period may be extended to 52 weeks

– Adoption Pay Period may be extended to 52 weeks

– Paternity Leave may increase to 26 weeks

– Paternity Pay may increase to 26 weeks



What may come in:

– Increase in WTR holiday – 28 days including public

holidays

– Large one off increase in a Week’s pay – mainly relevant

for Statutory Redundancy Payment

– Extension of right to request flexible working to all

employees



What may come in:

- According to the EOC “Flexible working and part-

time working is the future: a pattern that most of us

will want to access at different parts of our lives”.

This suggests that we can expect more change to

come.


Break


Employment Law Highlights

Employment Law Highlights Q and A


High Impact Cases

Flett v Matheson– Tripartite individual learning plan between Flett,

employer and Learning and Skills Council– For 42 Months– Could amount to an Apprenticeship not a

Contract of Employment


High Impact Cases

Flett v Matheson– Any dismissal before expiry of 42 month term– Could render the employer liable for the balance


High Impact Cases

Rothwell v Pelikan Hardcopy Scotland Limited– Employee with Parkinson’s Disease– Must consult over contents of medical reports

prior to deciding to dismiss


High Impact Cases

Rothwell v Pelikan Hardcopy Scotland Limited– Failure to consult amounted to unfair dismissal– And Disability Discrimination ( failure to make

reasonable adjustment)

PJH Law Employment Law Update 2006 High Impact Cases

Hone v Six Continents Retail Limited– Pub Manager– Working 90 hours per week– Submitting time sheets showing this– Asked for Assistant Manager


Hone v Six Continents Retail Limited– Timesheets dismissed by Employer as ridiculous– No Assistant Manager appointed– Employee refused to sign 48 hour opt out– Manager subsequently off with stress


High Impact Cases

Hone v Six Continents Retail Limited– Employer negligent– Employer liable for the psychiatric injury caused by

stress– Test was “ indications of impending harm to

health…must be plain enough for any reasonable employer to realise that he should do something about it”

– If no opt out signed employer under a duty to take all reasonable steps to prevent 48 + hours working


Dellas v Premier Ministre– French case went to ECJ– Deals with on call time– In this case employee employed as a residential

special needs – Question was whether time on call counted as

working time?


Dellas v Premier Ministre– Answer in this case yes– Key factor was that employee was on site and on

call


Green v DB Group Services (UK) Limited Action brought in High Court

– Harassed and bullied by 4 Female Colleagues – Suffered a major depressive disorder – Awarded £850k– Employer’s were negligent


Green v DB Group Services (UK) Limited Relevant Test

– Was Claimant bullied?– Did those involved know or could reasonably

have known conduct might cause harm?– Could steps have been taken to avoid the harm?– Was the bullying connected to Employment?


Green v DB Group Services (UK) Limited To constitute harassment under Protection From

Harassment Act 1997– Conduct on at least two occasions– Targeted at the Claimant– Calculated in an objective sense to cause

distress– Which is objectively judged to be oppressive and

unreasonable


Majrowski v Guy’s and St Thomas NHS Trust– Bullying in workplace – ignored, rude, abusive

behaviour, excessively critical, unrealistic targets, threatened with disciplinary sanctions

– Employer Liability under Protection from Harassment Act


Majrowski v Guy’s and St Thomas NHS Trust

Action brought in High Court– 3 year limitation period – Employer can be vicariously liable– Provided bullying is “closely connected “ to

employment



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PJH Law Employment Law Update 2006