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Something old something new 7 december


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Something old something new 7 december

  1. 1. Something Old Something New Employment Law workshop December 2010
  2. 2. Removal of theDefault Retirement Age (DRA) Vicky Schollar
  3. 3. Background Employment Equality (Age) Regulations 2006 (“the Regulations”) Now the Equality Act 2010 – para 8 Schedule 9 – still lawful to retire employees at 65 Statutory Retirement Procedures
  4. 4. Proposals Why remove the DRA? Consultation ended October 2010 Response to consultation imminent Key Proposals – Removal of DRA – Removal of retirement procedures – Transitional provisions - April to October 2011
  5. 5. Transitional Arrangements Compulsory retirements that have been notified before 6 April 2011 to take effect before 1 October 2011 are valid Compulsory retirements notified before 6 April 2011 to take effect after 1 October 2011 will not be valid No new notices of intended retirement (including short notices) may be issued after 6 April 2011
  6. 6. 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
  7. 7. Insured benefits Life assurance Medical cover Income protection schemes (eg PHI) Critical illness cover Employee Share Schemes – good and bad leavers
  8. 8. Seldon v Clarkson Wright and Jakes and anorEWCA 2010 Partners in law firm required to retire at 65 Legitimate 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
  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 Recorders aged over 65 meant there were fewer challenging cases for those in the 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: – employee had a replacement income – agreed as part of a collective agreement
  11. 11. Petersen, ECJ 2010 Age limit of 68 for dentists in German national health service Legitimate aim: – to protect patients against declining performance of older practitioners Held: Not objectively justified
  12. 12. Advantages Retain experience Retain knowledge Retain skills Demonstrates equal opportunities Improved attitude towards older workers Lower labour turnover Decreased sickness absence
  13. 13. Disadvantages Fewer opportunities for career development/employment for new/younger employees Capability issues Ongoing funding of pensions/benefits Difficulties in succession planning Less natural wastage Increased sickness absence
  14. 14. The Equality Act 2010 Debbie Sadler
  15. 15. 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)
  16. 16. The Equality Act 2010 Protected Characteristics – age – disability – gender reassignment – marriage and civil partnership – pregnancy and maternity – race – religion or belief – sex – sexual orientation
  17. 17. 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)
  18. 18. 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
  19. 19. 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)
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. The Equality Act 2010 Equal Pay – (publication of pay differences) – pay secrecy clauses potentially unenforceable victimisation
  24. 24. The Equality Act 2010 Practical steps – Equal Opportunities Policy – Harassment Policy – Training for Staff and Managers – Review procedures (recruitment)