Blake Lapthorn's Employment law workshops 23 and 24 November


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Blake Lapthorn's Employment law workshops 23 and 24 November

  1. 1. Something Old Something New Employment Law workshop November 2010
  2. 2. Removal of the Default Retirement Age (DRA) Linda Wilson
  3. 3. Current position Equal Treatment Directive 2000/78 Employment Equality (Age) Regulations 2006 SI 2006/1031 (“the Regulations”) Now the Equality Act 2010
  4. 4. 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 valid If notified before 6 April 2011 to take effect after 1 October 2011 will not be valid
  5. 5. DRA will cease on 1 October 2011 No new notices of intended retirement may be issued after 6 April 2011 Statutory retirement procedures will be abolished
  6. 6. 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”
  7. 7. Insured benefits Life assurance Medical cover Income protection schemes Critical illness cover Permanent health insurance Employee Share Schemes – good and bad leavers
  8. 8. Seldon v Clarkson Wright and Jakes and anor EWCA 2010 Partners in law firm to retire at 65 Justification: – 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
  9. 9. Hampton v Lord Chancellor and anor 2008 Judicial office of Recorder Retirement at 65 Justification: – 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 appointment Held: not objectively justified
  10. 10. Rosenbladt, ECJ 2010 Employment terminated when the employee could claim a statutory pension, age 65 ECJ held that the contractual retirement age of 65 was justified German 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
  11. 11. Wolf v Stadt Frankfurt am Main, ECJ 2010 German law had maximum recruitment age 30 for Frankfurt Fire Service Could be ‘genuine occupational requirement’ to possess high physical capabilities Substantial scientific data provided
  12. 12. Petersen, ECJ 2010 Age limit of 68 for dentists in German national health service Justification: – to protect patients against declining performance of older practitioners ECJ rejected this justification
  13. 13. Advantages Retain experience Retain knowledge Retain skills Demonstrates equal opportunities Improved attitude towards older workers Lower labour turnover Decreased sickness absence
  14. 14. Disadvantages Fewer opportunities for career development for new/younger employees Reduced capability Ongoing funding of pensions Performance diminishing with age Difficulties in succession planning Less natural wastage Increased sickness absence
  15. 15. Government assurance Most agree to requests to work beyond retirement age Most employees only choose to work one or two years past the age of 65 Work performance in most jobs is not affected up to the age of 70
  16. 16. The Equality Act 2010 Debbie Sadler
  17. 17. 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)
  18. 18. The Equality Act 2010 Protected Characteristics – age – disability – gender reassignment – marriage and civil partnership – pregnancy and maternity – race – religion or belief – sex – sexual orientation
  19. 19. 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)
  20. 20. 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
  21. 21. 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)
  22. 22. 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
  23. 23. 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
  24. 24. The Equality Act 2010 – duty to make reasonable adjustments PCP or physical feature provision of auxiliary aid – pre employment medical questionnaires comply with requirement to undergo assessment reasonable adjustments intrinsic to role to monitor diversity to take positive action genuine occupational requirement
  25. 25. The Equality Act 2010 Equal Pay – (publication of pay differences) – pay secrecy clauses potentially unenforceable victimisation
  26. 26. The Equality Act 2010 Practical steps – Equal Opportunities Policy – Harassment Policy – Training for Staff and Managers – Review procedures (recruitment)