Something old something new 7 december

Something Old Something New

Employment Law workshop December 2010

Removal of the Default Retirement Age (DRA)

Vicky Schollar

Background

Employment Equality (Age) Regulations 2006 (“the Regulations”)Now the Equality Act 2010 – para 8 Schedule 9 – still lawful to retire employees at 65Statutory Retirement Procedures

Proposals

Why remove the DRA?Consultation ended October 2010Response to consultation imminentKey Proposals– Removal of DRA– Removal of retirement procedures– Transitional provisions - April to October 2011

Transitional Arrangements

Compulsory retirements that have been notified before 6 April 2011 to take effect before 1 October 2011 are validCompulsory retirements notified before 6 April 2011 to take effect after 1 October 2011 will not be validNo new notices of intended retirement (including short notices) may be issued after 6 April 2011

Going Forward

No DRA means:– No longer potentially fair reason for dismissal– Employers can still have compulsory retirement ages– Compulsory retirement ages will need to be objectively

justified“Proportionate means of achieving a legitimate aim”Compulsory retirement ages – what to consider

Insured benefits

Life assuranceMedical coverIncome protection schemes (eg PHI)Critical illness coverEmployee Share Schemes – good and bad leavers

Seldon v Clarkson Wright and Jakes and anor EWCA 2010

Partners in law firm required to retire at 65Legitimate aims: – 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

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 Recorders aged over 65 meant there were

fewer challenging cases for those in the pool for appointment

Held: 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:– employee had a replacement income– agreed as part of a collective agreement

Petersen, ECJ 2010

Age limit of 68 for dentists in German national health serviceLegitimate aim:– to protect patients against declining performance of

older practitionersHeld: Not objectively justified

Advantages

Retain experienceRetain knowledgeRetain skillsDemonstrates equal opportunitiesImproved attitude towards older workersLower labour turnoverDecreased sickness absence

Disadvantages

Fewer opportunities for career development/employment for new/younger employeesCapability issuesOngoing funding of pensions/benefitsDifficulties in succession planningLess natural wastageIncreased sickness absence

The Equality Act 2010

Debbie Sadler


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)


Protected Characteristics– age– disability– gender reassignment– marriage and civil partnership– pregnancy and maternity – race– religion or belief– sex– sexual orientation


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)


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


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)


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


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


– 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


Equal Pay– (publication of pay differences)– pay secrecy clauses

potentially unenforceable victimisation


Practical steps – Equal Opportunities Policy– Harassment Policy– Training for Staff and Managers– Review procedures (recruitment)

Education

Something old something new 7 december