Archive for the ‘Age Discrimination’ Category
By Sarah - Friday, June 27th, 2008
Equality minister Harriet Harman has set out her plans for the equality bill. You can watch her speech here.
In summary, the plans are designed to stamp out the pay divide and will be brought about in three ways:
1. In the use of the proposed Equality Bill.
2. By using secondary legislation.
3. By action in by the newly formed Equality and Human Rights Commission.
It would take another 80 years, Harman says, to equalise pay so they are going to make it compulsory for companies to report on equality issues by gender pay for their employees to see in the same way that hospitals and schools publish league tables on waiting lists and exam results.
The plan is to bring equality in five ways. Firstly be using the public procurement process. Presumably this will mean it will be harder for companies to secure public sector contracts unless they are seen to be good role models.
Secondly, they will outlaw clauses in the employment contracts which prohibit employees from talking to one another about their pay. Some employers use these clauses not to allow a gender divide but to stop those in similar positions finding out each others salary to get into a bidding war.
The third measure is to give the Employment Tribunal extended powers to make recommendations not just in relation to the successful complainant but to all affected employees. Whether this will extend their powers in the same way as protective awards remains to be seen.
Next the Equalities and Human Rights Commission is to use its statutory powers of investigation. Harman says that they will start with the financial sector in a bid to outlaw sexism in the city. This is something this firm has seen first hand for one of its employees against a large UK plc (and won I hasten to add!)
The final measure relates to the reporting provisions I have set out above. It therefore appears that we have some important changes to employment legislation on the horizon so watch this space for further updates. We will also be launching our Employment law training programme in early July which will enable you to keep up to date.
Posted in Age Discrimination, Disability Discrimination, Equal Pay, Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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By Sarah - Wednesday, March 19th, 2008
A survey by an employment service provider (not us) has found that 88% of the 2,266 employers surveyed had at some stage given the job to the most attractive candidate! A similar percentage stated that appearance could affect their decision to offer the job. Whilst ensuring that those who are being interviewed for a office position have turned up dressed appropriately, this approach could land employers in hot water.
This attitude is quite suprising given the anti-discrimination legilsation in place. A person’s looks could be based on their race or gender which would of course be discriminatory. Giving a young female the job for her “sex appeal” over a male applicant could amount to sex discrimination and not choosing the older candidate could be discriminatory on the grounds of age.
When I was applying for training contracts a lot of the City firms asked for a passport photo with the application form. What is that about, if this is not selecting a prospective candidate on looks? Does this still go on?
Posted in Age Discrimination, Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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By Liam - Friday, February 22nd, 2008
Paragraph 2 of Schedule 6 of the Employment Equality (Age) Regulations 2006 requires employers to write to employees 6-12 months before retirement and inform them of the date that they are due to retire and that they have the right to request not to retire.
Under paragraph 4 of the same Regulations, if employers have failed to comply with paragraph 2, employers have a continuing duty to notify the employee of the above two matters right up until 14 days before the day they are due to retire.
If employers do not do this, any dismissal may be unfair depending on whether the meetings part of the retirement procedure is followed and depending on when (if at all) the employee is told of the above two matters.
In addition to unfair dismissal claims, employees can make a stand alone complaint to a Tribunal that the paragraph 2 notification was not given. Such a claim carries an award of up to 8 weeks’ pay.
It is interesting to note that the limitation period for this type of claim is 3 months from the last time the employer could notify in accordance with paragraph 2 (in other words 3 months before retirement) or, if later, 3 months of when the employee knew or should have known that the employer wanted him to retire. This means that in some cases, the claim for 8 weeks’ pay will have to be presented to the Tribunal before any claim for unfair dismissal as the limitation period could expire before the dismissal takes effect!
This could mean employees clogging up the tribunal system with two claims about the same retirement - one for unfair dismissal and one for failure to notify in accordance with paragraph 2.
Posted in Age Discrimination | No comments »
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By Liam - Wednesday, November 28th, 2007
The President of the Employment Tribunal has issued a new Practice Direction regarding Age Discrimination Claims under Regulation 30 of the Employment Equality (Age) Regulations 2006 (Regulation 30 provides that retirement of employees over 65 is a potentially fair reason for dismissal).
The President has ordered that all such claims be stayed until the ECJ has given its decision in Age Concern v Secretary of State (the Heyday Claim reported by this blog here). This means that any employee who tries to argue that dismissal by reason of retirment over the age of 65 is unfair will not have their claim heard until the ECJ have made their decision.
Posted in Age Discrimination | No comments »
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By Philip - Monday, November 12th, 2007
Well the first finding of Age Discrimination has been made and it involves a 20 year old, apparently fired for being too young to handle client complaints. The employee worked at a private members club in London called the 8 members club which has 800 members. Read about it here
It’s a salutary reminder to all employers that just because an employee has less than a year’s service, does not mean that he or she can’t come back and bite, particularly where any performance short comings have not been documented.
The ray of hope for the employer is that the award is likely to be low as the employee mitigated her losses pretty quickly, finding a new job, paying more, shortly after she was fired. It’s not a nice first though for the employer, being the first employer to discriminate on grounds of age (or at least the first to be caught)!
Posted in Age Discrimination | No comments »
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By Sarah - Tuesday, October 16th, 2007
Whilst not wanting to be smug for a second time in a few days, it would appear that the challenge by Heyday has as predicted limited chance of success. We set out our predictions here
The ECJ has handed down it’s decision in Palacios v Cortefiel Servicios SA holding that the EU Directive does not prohibit member states from introducing mandatory retirement ages. You can read more here. Heyday are currently challenging the UK retirement provisions in a similar manner.
As soon as there is more imformation on the Heyday challenge you can read it here.
Posted in Age Discrimination | 1 comment »
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By Philip - Thursday, October 11th, 2007
Well Freshfields’ Age Discrimination case has been decided. Those with long memories, may remember I gave my prediction of the outcome here
I promised at the time I wouldn’t say I told you so but my prediction was correct. Read about Freshfields’ victory here
There have been no Age Discrimination victories to report, which law firm will be the first? Watch this space.
Posted in Age Discrimination, Employment Tribunal Procedure, Uncategorized | No comments »
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By Liam - Thursday, September 27th, 2007
Under the Statutory Retirement Procedure that became mandatory in its transitional form on 1 October 2006 and then in permanent form on 1 April 2007, all employers must follow the Statutory Retirement Procedure before dismissing an employee by reason of retirement (which is now a sixth potentially fair reason for dismissal for unfair dismissal purposes).
The procedure requires employers to write to employees between 6 and 12 months before they are due to retire and inform them that they are due to retire (and state the date that retirement is due) and that they have the right to request to work on beyond retirement age. If the request is refused following the appropriate meeting and appeal meeting, the employee simply retires.
However, if the employee is granted an “extension” to their employment, what must be done in terms of the retirement procedure when the end of the “extension” is approaching?
The answer depends on the length of the extension. If the extension is for 6 months or fewer, there is no need to send another notice of retirement letter to the employee.
If the extension is for more than 6 months, then the employee must be sent another notice of retirement letter between 6 and 12 months before the new retirement date. If this is not done, the retirement procedure has not been followed and employers will either have to delay the employee’s retirement or risk an unfair dismissal claim.
For extensions between 6 and 12 months beyond the first retirement date (normally when the employee reaches the age of 65) the easiest way to deal with the requirement to write to employees 6 - 12 months before the new date is to include the new notice of retirement information in the letter confirming the extension of the first retirement date.
This means one letter will cover the following:
- That an extension has been granted;
- What the new retirement date is;
- That the employee has the right to make a further request to work beyond this date.
The employer can then wait to receive a further request, and if it does not, simply retire the employee safe in the knowledge that it has met its obligations under the retirement procedure.
Posted in Age Discrimination | No comments »
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By Liam - Monday, September 3rd, 2007
The Employment Tribunal Service has published its 2006-2007 report. The report covers the period from 1 April 2006 - 31 March 2007.
The report shows that the overall number of tribunal claims are on the increase - by over 15%…….so much for the Employment Act 2002 and the Statutory Dismissal and Grievance Procedures reducing claims. In fact I can think of numerous examples of instances where they have caused extra litigation.
There have been 972 Age Discrimination Claims (in the 6 months since the Regulations came in to force on 1 October 2006 to the end of the period covered by this report - 31 March 2007). Of these NONE have won at Tribunal and 6 have lost at Tribunal. The rest were withdrawn, settled, struck out, dismissed at a preliminary hearing or secured a default judgement. It seems very few people have been prepared to see this new type of claim all the way through to hearing - no one wants to be the test case! Age discrimination claims had one of the highest number of settlements - 38% of all age cases settled (behind Sex Discrimination at 48% and equal pay with a whopping 60% settlement rate).
The average Unfair Dismissal award was just under £8,000.00 and the median Unfair Dismissal award was £3,800.00. Costs were awarded in fewer than 0.25% of cases and mainly in favour of the Respondent.
Posted in Age Discrimination, Employment Tribunal Procedure, Miscellaneous, Sex/Race Discrimination, Statutory Procedures | No comments »
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By Sarah - Friday, August 17th, 2007
This Appeal makes for some interesting reading particularly if you are considering bringing a case to Tribunal. It emphasises the need for the Claimant to raise all or any grievances promptly before issuing a claim in relation to their case rather than halfway through the hearing process. The law is nothing new but perhaps a reminder of the employee’s obligations. A grievance must be raised promptly, cover all the issues and be issued before the Claim form is.
As the Employment Appeal Tribunal outlined, the ET1 is where the opportunity should be taken to refer, in as much detail, to any actual allegations you wish to bring to the Tribunal. Simply ticking the box which best describes your situation, which in this case was ‘discrimination’ is not enough as the employer needs more detail in order to respond. If you have not raised a grievance first then allegations of discrmination should not be accepted.
Posted in Age Discrimination, Employment Tribunal Procedure, Religion or Belief Discrimination, Sex/Race Discrimination, Statutory Procedures | No comments »
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