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Something Old Something New
Employment Law workshop November 2010
Removal of the Default Retirement Age (DRA)
Linda Wilson
Current position
Equal Treatment Directive 2000/78Employment Equality (Age) Regulations 2006 SI 2006/1031 (“the Regulations”)Now the Equality Act 2010
Phasing out DRA from April 2011
Consultation now closed, awaiting response Retirements that have been notified before 6 April 2011 to take effect before 1 October 2011 are validIf notified before 6 April 2011 to take effect after 1 October 2011 will not be valid
DRA will cease on 1 October 2011
No new notices of intended retirement may be issued after 6 April 2011Statutory retirement procedures will be abolished
New position?
No DRA means:– no longer ‘fair’ dismissal under ERA– Employers can still have contractual retirement ages– Contractual retirement ages will need to be objectively
justified“Proportionate means of achieving a legitimate aim”
Insured benefits
Life assuranceMedical coverIncome protection schemesCritical illness coverPermanent health insuranceEmployee Share Schemes – good and bad leavers
Seldon v Clarkson Wright and Jakes and anor EWCA 2010
Partners in law firm to retire at 65Justification: – Giving senior solicitors opportunity for partnership– Facilitating partnership and work force planning– Limiting need to expel Partners by way of performance
management thus maintaining a congenial culture
CA held: Objectively justified
Hampton v Lord Chancellor and anor 2008
Judicial office of RecorderRetirement at 65Justification:– Reasonable flow of new appointments and candidates
for full time judiciary posts– Presence of Recorders aged 65- 70 prevents
recruitment of younger Recorders– Presence of Recorder aged over 65 meant less
challenging cases for those in pool for appointmentHeld: not objectively justified
Rosenbladt, ECJ 2010
Employment terminated when the employee could claim a statutory pension, age 65ECJ held that the contractual retirement age of 65 was justifiedGerman Government had legitimate aims of:– sharing employment between generations– avoiding capability dismissals
Proportionate because:– required employee to have a replacement income– agreed with employee or Union
Wolf v Stadt Frankfurt am Main, ECJ 2010
German law had maximum recruitment age 30 for Frankfurt Fire ServiceCould be ‘genuine occupational requirement’ to possess high physical capabilitiesSubstantial scientific data provided
Petersen, ECJ 2010
Age limit of 68 for dentists in German national health serviceJustification:– to protect patients against declining performance of
older practitionersECJ rejected this justification
Advantages
Retain experienceRetain knowledgeRetain skillsDemonstrates equal opportunitiesImproved attitude towards older workersLower labour turnoverDecreased sickness absence
Disadvantages
Fewer opportunities for career development for new/younger employeesReduced capabilityOngoing funding of pensionsPerformance diminishing with ageDifficulties in succession planningLess natural wastageIncreased sickness absence
Government assurance
Most agree to requests to work beyond retirement ageMost employees only choose to work one or two years past the age of 65Work performance in most jobs is not affected up to the age of 70
The Equality Act 2010
Debbie Sadler
The Equality Act 2010
Purpose– to harmonise anti discrimination law– to strengthen the law to support progress on equality
When– received Royal Assent 8 April 2010– core provisions from 1 October 2010
Equality and Human Rights Commission – guidance (statutory and non statutory)
The Equality Act 2010
Protected Characteristics– age– disability– gender reassignment– marriage and civil partnership– pregnancy and maternity – race– religion or belief– sex– sexual orientation
The Equality Act 2010
Direct Discrimination– A discriminates against B if, because of a protected
characteristic, A treats B less favourably than A treats or would treat others.
– discrimination by association/perception – (dual discrimination)
The Equality Act 2010
Indirect Discrimination– A applies a provision criteria or practice (PCP) to B– A applies or would apply the PCP to persons with
whom B does not share the relevant protected characteristic
– the PCP puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic
– the PCP puts or would put B at that disadvantage and – the PCP is not a proportionate means of achieving a
legitimate aim– Extended to disability and gender reassignment
The Equality Act 2010
Harassment– A harasses B if A engages in unwanted conduct
relating to a relevant protected characteristic which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B
– by third parties– no need to possess protected characteristics
(associative and perceptive)
The Equality Act 2010
Victimisation– removes need for absolute comparator – A victimises B if A subjects B to a detriment because
B does a protected act or A believes that B has done or may do a protected act
Instructing or Causing Discrimination– unlawful to instruct/induce discrimination, harassment
or victimisation or to attempt to do so– extends protection to all protected characteristics
The Equality Act 2010
Disability Discrimination– normal day to day activities
8 functions removed– associated/perceived discrimination– indirect discrimination– discrimination arising from disability
A discriminates against a disabled person, B, if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot objectively justify the treatment
The Equality Act 2010
– duty to make reasonable adjustmentsPCP or physical feature provision of auxiliary aid
– pre employment medical questionnaires comply with requirement to undergo assessment reasonable adjustmentsintrinsic to roleto monitor diversity to take positive action genuine occupational requirement
The Equality Act 2010
Equal Pay– (publication of pay differences)– pay secrecy clauses
potentially unenforceable victimisation
The Equality Act 2010
Practical steps – Equal Opportunities Policy– Harassment Policy– Training for Staff and Managers– Review procedures (recruitment)