EMPLOYMENT UPDATE
1. RETIREMENT UPDATE
 DRA 65 to be abolished (consultation closed)
 Still retire staff whose 65th birthday falls before 30.09.11
 Must still follow statutory retirement procedure to avoid
claims
 Retirement procedure to be abolished 06.04.11
 Transitional arrangements apply to retirements already in
motion where retirement notification already given,
retirement before 1 Oct and statutory requirements met
 Expected that “retirement” to be removed as fair reason
for dismissal (s98 ERA 1996)
2. WHAT NEXT?
 Retain a retirement age
1. What do you set as CRA?
2. Can you objectively justify act of age discrimination?
- s13 – direct discrimination due to protected characteristic
- s13(2) – carve out to allow OJ of direct age
discrimination (unique)
- s19 – indirect discrimination (PCP)
- proportionate means of achieving a legitimate aim
- “employer justified retirement age”
3. Can you also demonstrate fair reason for dismissal
and fair process?
3. WHAT NEXT?
 Proceed without a defined retirement age
 Deal with retirement on case by case basis OR
 Dismiss for other reasons, eg. capability, poor
performance, improve voluntary retirement
process
 Government expected to publish Code of Practice
on retirement dismissals and guidance for
employer on managing without a retirement age
4. RELEVANT RETIREMENT CASES
 Seldon v. Clarkson Wright and Jakes (BIS intervening)
(CA 2010)
 Rosenblat v. Ollerking Gebaudereiningunsges GmbH
(ECJ 2010)
Best Practice:
1. Timetable retirement dismissals before 01.10.11
2. Make business decision on what to put in place
06.04.11
[continued …]
RELEVANT RETIREMENT CASES [cont]
3. Any CRA needs to be OJ – gather as much
information, data and reasoning as possible to justify
CRA – consult with TUs and workforce (critical)
4. CRA – agree with workforce/TUs a fair retirement
process
5. Look to introduce or amend voluntary retirement
schemes
5. EQUALITY ACT 2010
 Protected characteristics (“PC”) = age, disability,
gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex,
sexual orientation
 Gender reassignment – no need to be under medical
supervision now
 Direct discrimination (s13) – definition wide enough to
cover discrimination on grounds of perception or
association (“because of a PC”)
[continued …]
EQUALITY ACT 2010 [cont ...]
 Indirect discrimination – definition such that concept
limited to those with a PC (does not extend to
association)
 Harassment (s26) – “unwanted conduct related to a
particular characteristic” – wide enough to cover
harassment due to “association” to a person with PC or
perceived PC
 Harassment by third parties (s40) – employer liable for
persistent harassment of employee by third parties
(covers all PC, before was just sex) – [continued …]
EQUALITY ACT 2010 [cont ...]

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
knowledge of harassment, in course of employment,
on at least two occasions, no reasonable practicable
steps to prevent
Pre-employment health questionnaires – unlawful until
offer stage, save for exceptions
Secrecy clauses – unenforceable where there is
relevant pay disclosure
Compromise agreements?
Positive action and pay transparency - suspended
EQUALITY ACT 2010 [cont ...]
Best Practice:
 (Statutory defence s109 – “reasonable steps to
prevent”): amend existing EOP/harassment policy,
updated examples/definitions
 Policy on third party harassment and duty on employee
to notify company
 Distribute revised policies and obtain signatures – “read,
understood and agree to abide by”
 Refresher training across business
 Signs in workplace regarding harassment towards staff
6. DATE OF DISMISSAL
 Gisda Cyf v. Barratt (S/C 2010)
 EDT date read letter, not date sent or arrived at home
address
Best Practice:
 Communicate dismissal decision verbally wherever
possible and confirm in writing
 Where making decision in letter and not communicating
verbally, arrange personal delivery where possible.
7. INFORMATION AND CONSULTATION
 TUPE 2006 and TULR(C)A 1992
 Todd v. Strain (EAT 2010) – “measures”
 Todd v. Care Concern (EAT 2010) – protective award
(amount and joint liability)
 USA v. Nolan (CA 2010) – when does consultation begin?
 Lancaster University v. The University and College Union –
protective award
Best Practice:
 Measures can include administrative changes
[cont …]
INFORMATION AND CONSULTATION [cont]
 I&C should always be undertaken – some I&C better
than none at all
 Obtain indemnities and warranties in any business
sale agreement
 Remember winning a contract/tender may be a
service provision change
8. DISCRIMINATION AND JUSTIFICATION
 Woodcock v. Cumbria Primary Care NHS Trust (EAT
2010)
 Cost and justification defence
Best Practice:
 Cost alone may now be a reason to justify discrimination
contrary to previous authorities – take legal advice though!
 Must be where the cost of avoiding or rectifying
discrimination is disproportionately high
9. REFUSAL OF RE-ENGAGEMENT AND
MITIGATION
 Bloxwich Fencing v. Banks (EAT 2010)
 Employee’s refusal of re-engagement was not a failure to
mitigate
Best Practice:
 Demonstrates importance of meaningful consultation in lead up
to termination and re-engagement on new terms
 Important to avoid breach of implied terms of trust and mutual
confidence arising from manner in which dismiss and offer reengagement
10. REASON DISMISSAL




Celebi v. Compass Group (EAT 2010)
Dismissal for theft
Allegation “loss of £3,000”
Unfair dismissal due to lack of precision
Best Practice:
 State clearly allegation you are making
 Ideally link allegation to examples set out in disciplinary
policies or procedures
 Identify whether allegation is of gross misconduct which
could result in summary dismissal, or misconduct
11. RESTRUCTURING/REDUNDANCY
 CIBC v. Beck (EAT 2010)
 Restructuring, no redundancy
 S139: “requirements for business for employees to carry
out work of a particular kind have ceased or diminished”
Best Practice:
 Before commence any consultation process, need to
critically analyse roles under new structure with those
under old structure to determine if fall within s139
 Differences in roles need to be material and actual
12. SPIRITUALIST BELIEFS
 Power v. GMP (EAT 2010)
 Dismissed because of way he promoted his spiritualist
beliefs at work
 Lawfully discipline employees where inappropriately
manifest protected beliefs in workplace
Best Practice:
 Identify distinction between treatment on grounds of a
person’s belief and treatment on the ground of the
manifestation of those beliefs
 Consider updating EOP
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn – James Bellamy
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com