Something old something new 7 december
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Transcript of Something old something new 7 december
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Something Old Something New
Employment Law workshop December 2010
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Removal of the Default Retirement Age (DRA)
Vicky Schollar
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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
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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
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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
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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
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Insured benefits
Life assuranceMedical coverIncome protection schemes (eg PHI)Critical illness coverEmployee Share Schemes – good and bad leavers
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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
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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
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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
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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
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Advantages
Retain experienceRetain knowledgeRetain skillsDemonstrates equal opportunitiesImproved attitude towards older workersLower labour turnoverDecreased sickness absence
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Disadvantages
Fewer opportunities for career development/employment for new/younger employeesCapability issuesOngoing funding of pensions/benefitsDifficulties in succession planningLess natural wastageIncreased sickness absence
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The Equality Act 2010
Debbie Sadler
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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)
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The Equality Act 2010
Protected Characteristics– age– disability– gender reassignment– marriage and civil partnership– pregnancy and maternity – race– religion or belief– sex– sexual orientation
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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)
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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
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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)
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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
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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
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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
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The Equality Act 2010
Equal Pay– (publication of pay differences)– pay secrecy clauses
potentially unenforceable victimisation
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The Equality Act 2010
Practical steps – Equal Opportunities Policy– Harassment Policy– Training for Staff and Managers– Review procedures (recruitment)