The Equality Act allows for the possibility of justification of a compulsory retirement in the workplace but gives no clear guidance as to what might be deemed acceptable.  Last week the Supreme Court considered the question in the long running case of Seldon v Clarkson Wright and Jakes which concerned a solicitor being forced into retirement at age 65 and their findings will give both guidance and encouragement to employers.

The court held that although the compulsory retirement age contained in the firm’s Deed of Partnership was discriminatory, it was capable of justification and gave us a test for justifying direct age discrimination.  Employers must show:

1. They have an aim.
2. That aim is potentially legitimate in that it is capable of being a public interest aim, a public interest aim being distinguishable from purely individual aims particular to the business such as cost reduction or improving     competitiveness.
3. The aim is also legitimate in the particular circumstances of the case.  This can be an aim such as avoiding the need for performance management where the public interest element is related to dignity i.e of the older worker     although where there are performance management systems in place one must be careful not to disapply them just for one section of the workforce.
4. The means chosen to achieve the aim must be both appropriate and     necessary.  This would involve considering whether there are other less discriminatory measures which could achieve the same aim.

Whilst not giving a direct green light to restoring a compulsory retirement age, this should help employers whose ageing workforce is having a negative impact on their business or who perhaps want to clear the way for younger employees with a different set of skills who can move their business forward.

1st April 2012 saw the standard rate of statutory maternity, paternity and adoption pay increase from £128.73 to £135.45 per week, but a raft of important changes come into effect on 6th April 2012:

Increase in the qualifying period for unfair dismissal claims

The qualifying period from bringing a claim of unfair dismissal increases from one year to two years.
The increase will apply to employees commencing in new employment on or after 6 April 2012. The qualifying period for the right to receive, on request, a written statement of reasons for dismissal will also increase to years. The current special cases for which there is no qualifying period (including pregnancy or health and safety related dismissals and assertion of a statutory right) still apply.

Changes to Employment Tribunal procedure

• Employment judges will hear unfair dismissal cases alone, i.e without the 2 lay members, one from a business background the other representing the employee perspective, unless they direct otherwise
• In the interests of shortening hearings, witness statements will not be read aloud but are instead taken “as read”, unless the Tribunal directs otherwise.
• The maximum amount of a deposit order, which a tribunal can order a party to pay as a condition to continuing with tribunal proceedings, increases to £1,000 (previously £500)
• The maximum amount of a costs order, which a tribunal may award in favour of a legally represented party, increases from £10,000 to £20,000.
• Tribunals will be able to direct that the parties to a dispute are responsible for paying witnesses’ expenses and that the party who loses the case should reimburse the successful party for any such costs already paid out.

Amendment to s.147 of the Equality Act 2010

An anomaly in relation to Compromise Agreements which previously troubled employment lawyers who acted for employees in relation to possible claims  and then negotiated a settlement and advised on the compromise agreement is removed.

Statutory sick pay

The standard rate of statutory sick pay (SSP) increases from £81.60 to £85.85 per week.

Changes to income tax thresholds come into force

Personal allowances for income tax will increases by £630 to £8,105. The threshold at which employees pay the higher income tax rate of 40% is reduced from £35,001 to £34,371.

Increase to lower earnings limit for national insurance contributions
The lower earnings limit for primary Class 1 national insurance contributions increases from £102 to £107.

Changes to health and safety reporting requirements come into force

Amendment to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 increases the required period of incapacity following an injury caused by an accident at work, which triggers the employer’s requirement to report the accident to the enforcing authority, from more than three days to more than seven days. The deadline by which the employer must report the accident increases from 10 days to 15 days.

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For dismissals on or after this date a week’s pay, currently capped at £400 increases to a maximum of £430.  This could be a significant increase on the cost of making long term employees redundant and your previously prepared figures will need to be revisited.

So – last working day before the Christmas break and we have just received a bottle of sherry (yes – our policies on alcohol and prevention of bribery do permit us to accept this!) and a Christmas card from Mr SC. It said:
Thanks for all your help on this one. I spoke to RRNR and straightaway he agreed to Dasher coming back to work. Seems they had been great friends, having started in the transport team together a few centuries ago. Problem had only really occurred since Dasher’s promotion, when he got a bit too big for his hooves. All well now – Dasher is now back in line and the crew are all happy and looking forward to the big event tomorrow night – followed by a long period of annual leave.

Ho! Ho! Ho! and a very Merry Christmas one and all!

Good news! We have today heard that Miss White has made a full recovery from her unfortunate accident with a poisoned apple. (Now also recorded in the accident book, following the hasty implementation of an updated health and safety policy by her employers). We encouraged Miss White to think seriously about raising a grievance and perhaps bringing a constructive dismissal claim, but it has not been necessary to do so because she has entered into mutually agreed terms of severance with her employers. Although not admitting liability, but recognising her long and loyal service, the Company has made a generous payment and given Miss White a glowing reference. Obviously we cannot give away any more detail because she has signed a Compromise Agreement containing a confidentiality clause, but we can confirm that all has ended happily ever after for Miss White, as she has found a new job at the local castle, in her old role as a Princess.

Got an email from Mr SC this morning. He has completed the disciplinaries for Donner, Blitzen and Dasher. Donner and Blitzen did escape with only a final written warning, but he felt he had no option but to dismiss Dasher because he was the transport team supervisor and it seemed that he had been using his extra authority to threaten Donner and Blitzen. 

However, Dasher had then appealed the decision – full of remorse for what had started out as no more than a bit of fun and admitting that the ‘power’ had gone to his antlers. He begged Mr SC to reconsider and offered to accept demotion and apologise to RRNR personally. We advised Mr SC to check with RRNR how he would feel about continuing to work with Dasher, before making any decision. We also checked Mr SC’s disciplinary procedure and confirmed that demotion was included amongst the possible penalties, so he can issue a final written warning with demotion if he wishes to.

“Christmas time – mistletoe and wine..”  , the perfect recipe for a new office romance – or the breaking up of an old one. Office relationships can bring an array of problems for employers and there was a time when they seemed keen to ban them altogether through strict rules in their contracts and handbooks. Nowadays, a more flexible approach tends to be the best policy, and a policy is the key word here. So put this on your ‘New Year To Do List’:

When drafting your policy, identify the areas where a work place relationship might be damaging for your business and focus on measures to limit the potential negatives. Employees will be less inclined to hide their relationship if they know the news will be positively received and no one is at risk of losing their job as a result.  It may be that preventing partners working in the same team or department is a sensible step to take and avoiding situations where one partner is a direct supervisor or manager of the other is generally justified. And look at what happens if one partner leaves. Your concern will naturally be that this poses a security and confidentiality threat, not to mention the possibility of competition, so revisit your post termination restrictions now and make sure they can be enforced if necessary. Don’t leave it until after the horse (or donkey) has bolted.

Ok – into the last week before Xmas now, but one of our company clients has a tricky problem. They employ a young man (we’ll call him Joseph) as a carpenter. His wife is expecting a baby sometime around the 25th of the month. She has just started her maternity leave. Joseph is enquiring about paternity leave, but our clients think there is some question mark over whether he is the biological father of the child and don’t know whether they should grant it or not.

We advised that this actually didn’t matter. Joseph will be eligible for paternity leave as long as he and Mary are either married or he is her partner and provided he has been employed for at least 26 weeks at end of the 15th week before the expected week of confinement.

Heard some very sad news about Miss White, whom we saw last week. It seems that the day after we saw her, the Company started receiving visits from a very persistent salesperson, who was able to take advantage of the rather vulnerable Miss White being left alone in the office day after day. She sold Miss White first a corset lace, which she accidently tied so tightly that poor Miss White fainted, and then the next day a hair comb which must have been contaminated with some sort of bacteria, as it caused Miss White to pass out. Luckily on each occasion the team returned to the office in time to save poor Miss White, but not on the most recent occasion when Miss White seems to have suffered food poisoning from, would you believe, an apple? The last we heard she was lying in a glass case up on the hill with her distraught work colleagues taking it in turns to look after her.

This throws up serious workplace health and safety issues. Why didn’t the mining company carry out a risk assessment and identify the fact Miss White was vulnerable being left all day in the office on her own? And once the first incident had taken place surely you would have expected the foreman to take appropriate action to protect Miss White from a similar occurrence? But no, all he did was get a few local bluebirds and a couple of deer to drop by the office to check up on her – clearly inadequate steps to protect her welfare. We hope Miss White makes a full recovery but if she doesn’t, we fear some serious repercussions for the company.