Blake Lapthorn's Employment law workshops 23 and 24 November

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


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

Blake Lapthorn's Employment law workshops 23 and 24 November