Government consultation over the ending of the
Default Retirement Age [DRA]
[posted 6th April 2011]
The Default Retirement Age of 65 is to be phased out from 6th April 2011.
The main proposals are:
- The Government will
use the powers set out in Section 2(2) of the European Communities Act
1972 to phase out the DRA from 6 April 2011.
- The current
statutory retirement procedures will also be phased out, including the
provision that requires employers to give a minimum of six months’ notice
of retirement to employees and the provision which allows employees to
request that their retirement is postponed.
- From April 2011,
employers will no longer be able to use the DRA to maintain a compulsory
retirement policy for their workforce at age 65 or above.
- There will be
transitional arrangements for retirements between April and October 2011.
- From April 2011,
employers will only be able to have a Compulsory Retirement Age (CRA) for employees if they can objectively justify that having a particular
CRA is a proportionate means of achieving a legitimate aim.
Emplloyers must not issue any compulsory retirement notices
after 5th April 2011 using the DRA. If the
employer has a compulsory retirement age as part of its employees’ terms and
conditions of employment then provided it can be ‘objectively justified’ and is
‘a proportionate means of achieving a legitimate aim’ then retirement in such
circumstances will be permitted. After
October 2011 there will be no distinction between dismissal under or over the
age of 65. Therefore the potentially
fair reasons for dismissal will be those currently applied: conduct, capability,
redundancy, statutory bar and some other substantial reason. In anticipation of these changes it is
important for employers to review their existing retirement and dismissal
procedures to consider how the changes may affect them.
Equality Act 2010
[posted 4th April 2010]
The employment provisions of the Equality Act came into force on 1st October 2010. The Act consolidates the main anti-discrimination laws into one and covers the groups [now called 'protected groups'] comprising: age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race religion or belief, sex and sexual orientation. Not only does the new Equality Act consolidate existing legislation it extends and strenghthens the law in a number of important respects. It creates new rights of discrimination by perception and association; so for example a person may be discriminated against because of behaviour based on his/her perceived sexual orientation or disability even if the person does not actually have that characteristic. For example if someone is a carer of a disabled person the carer may be protected from discrimination by association with the disabled person. The new Act widens and clarifies the definition of direct and indirect discrimination and harassment and extends the situations in which positive action is lawful. It makes pay secrecy clauses unenforceable and introduces new voluntary reporting of gender pay gap information for larger companies. The Equality and Human Rights Commission [EHRC] has produced new Codes of Practice and Guidance about the Act. Further information and guidance can be found on the EHRC website: CLICK HERE
New 'fit note' replaces old 'sick note'.
[posted April 2010]
The Government's new fit note came into use on the 6th April 2010 and is intended to encourage the focus upon what an individual can do, rather than what he/she cannot. It will ask GPs to state whether the employee is 'unfit for work' or 'may be fit for work taking into account the following advice....' The maximum period for a fit note is 3 months compared with the old sick note of 6 months. The fit note contains a tick box list of frequently recommended changes that could be made to facilitate an employee's return to work such as altered hours, a phased return to work, and workplace adjustments. The GP can also make other suggestions that are not on the list. The fit note is merely advisory providing a basis for discussion between the employer and employee. It is the responsibility of the employer to decide whether the employee can work and if necessary carry out a risk assessment. The employer may also wish to obtain a second medical opinion which addresses the specific working arrangements of the employee. Any temporary working arrangements should be kept under review. In the light of the new arrangements employers should consider how best to implement the new scheme; paying particular attention to the law on disability and health and safety. The new arrangements do no affect existing contractual terms or the Statutory Sick Pay scheme. Further information on the new scheme can be obtained on the Department of Work and Pensions website .
[posted 3rd february 2011]
The Coalition government has announced proposals to increase the qualifying period for unfair dismissal from its current 1 year to 2 years. No date has yet been set for the change. Such a change will not affect dsicrimination claims which do not require any qualifying period.
Unfair dismissal was first introduced in 1971 under a Conservative government with a qualifying period of 6 months and a declared intention to remove the qualifying period altogether. This aim was never realised and since 1971 various changes have made to 1 year, 2 years, back to 1 year and now it seems back up to 2 years.
A belief in climate change is capable of being a 'philosophical belief' and therefore subject to the anti-discrimination law
[posted 3rd November 2009]
The Employment Appeal Tribunal has upheld a decision by an employment tribunal that a belief in climate change is capable of being a belief for the purposes of Employment Equality (Religion or Belief) Regulations 2003 and therefore discrimination in employment and/or dismissal that is made wholly or in part because the employee holds such a belief is unlawful. To amount to unlawful discrimination; such a belief must be genuinely held, it must not simply be an opinion or viewpoint, it must be a belief that has a substantial impact on human life and behaviour, it must attain a certain cogency and seriousness, it must be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others. Employers should be conscious that such beliefs in climate change and other beliefs which have the relevant attributes as described above may be afforded protection from discrimination by the Regulations
Additional Paternity Leave
[posted 15th April 2010]
The Additional Paternity Rights Regulations, in force from April 2010,
provide additional rights to fathers to share the maternity rights which have
until now been mainly the preserve of mothers.
The new rights will apply to parents of babies due on or after 3rd
April 2011 and include natural as well as adoptive parents.
Whilst the rights are described as ‘additional rights for fathers the
new regulations effectively provide the opportunity for more equal sharing of
childcare responsibilities between the mother and the father. The additional paternity leave can be for between
2 weeks and a maximum of 26 weeks and cannot be taken until the baby is at
least 20 weeks old. It must be taken
within 12 months of the baby’s birth and, importantly, it can only be taken if
the mother has returned to work. To be
eligible the father must be the biological father or the partner of the mother
and have or expect to have responsibility for caring for the child, be an
employee [not a worker] and have been continuously employed for at least 26
weeks ending with the 15th week before the baby is born. Parents will self certify their eligibility
to the employer with the employer being able to request evidence of
eligibility. If the additional paternity leave is taken within the existing 39 week
statutory maternity pay period for the mother then the father can receive this
pay instead of the mother [currently at the rate of £124.88 per week] The existing 2 weeks paid paternity leave remains in place and is
unaffected by the new regulations and is currently paid at 90% of earnings or,
at the SMP rate of £124.88; whichever is the greater.