Current Topics

Equality Act

The new Act received some publicity when it came into force in October 2010. It will apply to all dismissal and other employment issues that occurred after 1st October 2010.

It is a comprehensive and, in some respects, complex codification of a number of strands of discrimination law that have developed piecemeal over the last 40 years. The single most obvious and helpful element of the new law is the concept of a “PROTECTED CHARACTERISTIC“. A PC will be any defined personal characteristic  (such as gender, race, ethnic origin, disability, age, sexual orientation, gender reassignement, marriage, civil partnership, pregnancy, maternity, religion or belief). Any worker who has a PC is protected from being “less favourably treated” because of the PC. Thus, there must be a comparator, real or hypothetical -  except for pregnancy and maternity. Everyone has at least one PC; the issue is less favourable treatment BECAUSE of it.

There is a significant extention to the law by the introduction of discrimination by association and perception. So, if a worker is treated less favourably because he or she cares for a person with a PC, the worker will have the protection of the Act; and, if the employer has the perception that a worker has a PC, (even if they don’t in fact have it) and treats them less favourably because of it, the worker will be protected. This may well give workers a problem in proving their case – we shall see!

Discrimination can be direct (simply treating someone with a PC less favourably) or indirect. Indirect discrimination occurs when an employer applies a “PROVISION, CRITERION or PRACTICE” (PCP) to the workforce, but that PCP has a disproportionate and detrimental impact on a worker with a PC. If an employer can show that the PCP is a “proportionate means of achieveing a legitimate aim”, then the worker may lose protection.

Employees can ask questions of the employer if they think they have been discriminated against and the employer must reply; the forms are set out in the legislation.

When recruiting, avoid asking questions about the applicant’s health – it can now be dangerous!

There is plenty more!  Issues on harassment and victimisation, more protections for disabled workers……….

If you need guidance, get in  touch with me……………

Retirement

The default retirement age (DRA) of 65 has now (for all practical purposes) gone; so you can’t just decide that when Bill reaches 65 he can be retired! The result is that a dismissal at 65 will be age discrimination.The only fair way to “retire” an employee is now exactly the same as dismissing any other employee, IE, it must be for one of the potentially fair reasons (misconduct, incapability, redundancy, SOSR) and after a proper process (see below).

A very useful guide on retirement is the ACAS guide “Working without the DRA”

Disciplinary Procedures

We are, mercifully, now through the fallout from the repeal of the statutory dismissal procedures and back to the rather more practical and commonsense position driven by decided cases and, of course, the new ACAS code.

I urge you therefore to get a copy of the ACAS code of practice and ensure that you are thoroughly familiar with it and that you refer to it whenever you are contemplating disciplinary action or a dismissal. You should also have close regard to it when you receive any letter of complaint from an employee.

The procedure really is not rocket science; but it still surprises me how many employers still get it wrong. The principle (as with any disciplinary matter in the workplace) is simply Investigate, Warn and Consult before you take any action at all. Always keep an audit trail to record your actions; write letters and take notes of meetings.

If in doubt, drop me an email!

Employment Tribunals

The government is proposing some major changes to the tribunals.

  • a fee will be charged to make a complaint and a further fee required to go to a hearing. There will be remissions for those who cannot pay.
  • the qualifying period for bringing a claim for unfair dismissal is extended to 2 years.
  • unfair dismissal claims will be heard by a Judge alone, with no lay members.
The principle reason for these changes is to encourage employment (not quite sure how that works!) and to reduce claims because the tribunal system costs too much!