Miriam O'Reilly Speaks. Only this time, blink and you'd miss it...

Every Sunday in the Telegraph, Sir Terry Wogan offers his musings on some matter or other that's caught his attention during the week. This week he's given his tuppence worth on the Miriam O'Reilly age discrimination case. So far, so unremarkable (although his point of view is more interesting and relevant than most). But our Miriam, clearly scanning the Internet for every mention of her case, hasn't just read Terry's article - she's commented on it, too.

See what she had to say here...

Blogosphere reacts to the scrapping of the default retirement age

Dr Ros Altmann, the Director General of Saga, has managed to get the same article in both the Guardian and the Telegraph today. She is, of course, delighted that the default retirement age is to go. But, as usual, the really interesting bit is the replies that her article is attracting.

The arguments broadly fall into two categories.

On the one hand, by forcing people to retire before at a particular age, you make them stop working, producing and earning. So they end up contributing less in output to the economy and pay less taxes into the pot, meaning the country is less wealthy and the government doesn't have as much money to spend. Which creates more jobs for young and old alike.

On the other hand, increasing the retirement age will not cause the economy to grow (at least in the short to medium term) and will instead increase the supply of workers, driving down wages. The young will have less opportunity to get on the career ladder. And if older workers are at the top of their career income they are more expensive to employ and, if generally less efficient, this may reduce efficiency, competitiveness and the total number of jobs available.

In reality, the precise ramifications of scrapping the default retirement age are just too complex and subtle for any commentator to predict. But from an employment law perspective, the most immediate issue is likely to be how employers will treat a workforce which, as a general rule, may become less productive as employees reach old age. If an employee becomes less able over time but insists on staying put, what then? Most employment lawyers would agree that 'capability' is by far the most difficult 'fair reason' to rely on in dismissing an employee, as it carries an obligation to allow an employee to come up to scratch via support, training, redeployment and so on - all of which can take months. This can be hurtful to an employee and easy for another solicitor to challenge (usually pointing to the employee's most recent appraisal which, more often than not, will be glowing because the employer didn't want to hurt anyone's feelings). So will scrapping the default retirement age promote good industrial relations or become a source of conflict? We suspect this is one where time (and a hefty raft of case law) will tell...

Run on shares in carriage clock factories expected: default retirement age to be scrapped in October

The Government has today published its response to the consultation on phasing out the default retirement age. Fulfilling a pledge in the coalition agreement, from October employers will not be able to force staff to retire at 65.

The Government's intention is that the change will be phased in between April and October, giving firms time just 6 months to prepare and change their human resources policies.

You can view the Government's response to consultation here.

Coalition Floats its Employers' Charter

The newspapers today carry details of the Government's plans to relax key elements of employment legislation in a bid to encourage economic growth.

Although no timeframe has been given for their implementation, key proposals include:

• Raising from one year to two years the qualifying period of employment before an employee can bring a claim of unfair dismissal. The present qualifying period of one year was introduced in June 1999. Prior to that date, an employee had to be employed for two years before being able to claim unfair dismissal.
• With a view to reducing the number of vexatious allegations, workers will face a fee when lodging an employment tribunal claim.
• Small companies may be excluded from some of the more onerous employment regulations (it remains to be seen what these are).
• The length of time that firms have to pay statutory sick pay to employees is set to be reduced.

Interesting stuff - and certain to encourage debate (see, for example, the reader comments on the The Daily Telegraph's website. At the time of posting, a comment thread hasn't appeared on The Guardian's website - we're betting it'll be feisty!).

Merry Christmas

Synergy Employment Law Solicitors will be open for business as normal until 1pm on Christmas Eve. We will be closed for the festive period, returning on Tuesday 4 January 2011.

We wish you all a very Merry Christmas and a happy and prosperous New Year!

Looking forward to your Royal Wedding Bank Holiday? You'd better check your contract first...

I was in India when William and Kate announced they were going to tie the knot. The big story in Tamil Nadu was the wedding of the state governor's grandson in Madurai - there were billboard sized posters everywhere and wall to wall coverage on local telly. So I missed all the excitement (well, modest excitement) back home. Which included the best bit of all - to mark Wills and Kate's big day, David Cameron promised us all an extra Bank Holiday on April 29!

Well, not quite. Under the Working Time Regulations, a worker is entitled to 5.6 weeks' annual leave in each leave year. This is equivalent to 28 days for a five-day working week. Provided that an employer gives 28 days' paid holiday (or the pro-rata equivalent for part time workers) in a holiday year, then they're acting within the letter of the law. There's no automatic right to have a Bank Holiday off work - that's for the contract of employment to cover.

You can see where this is going, can't you?

Basically, if your contract of employment says that you're entitled to 20 days' paid holiday plus Bank Holidays, then you'll have the chance to do a bit of flag waving outside Westminster Abbey and rejoice in your extra paid day out of the office.

If your contract of employment says that you're entitled to 28 days' paid holiday inclusive of Bank Holidays... well, on the face of it your holiday entitlement is exactly the same as before. And (making his feelings abundently clear) Paul Kenny, general secretary of the GMB, has said: "There is no legal obligation to have a day off or extra pay, so yet again this Government is promising one thing and delivering the exact opposite."

So what does your contract of employment say?

No doubt many employers will use their discretion as to how they deal with this situation - and here at Synergy we're interested to know what the general approach will be...

Annual compensation limit increase announced

The new maximum compensatory award for unfair dismissal is going up from 1 February 2011. Currently at £65,300, it will be increasing to £68,400. The new maximum for a "week's pay" goes up from £380 to £400.

Once these increases have come into effect, the maximum award for unfair dismissal award (basic plus compensatory) will be £80,400.

Full details are available to view here.

2011 statutory payment rates announced

The Government has announced proposed increases in the rates of statutory benefits which are expected to apply from 11 April 2011.

• The standard rates for Statutory Maternity, Paternity and Adoption Pay will increase from £124.88 to £128.73.
• The weekly earnings threshold for these payments will rise from £97 to £102.
• Statutory Sick Pay will increase from £79.15 to £81.60, with the weekly earnings threshold also rising from £97 to £102.
• Maternity allowance will increase from £124.88 to £128.73, with the earnings threshold remaining at £30.

Full details are available on Hansard.

Associative Pregnancy Discrimination

In Kulikaoskas v MacDuff Shellfish, the EAT has held that it is not possible for a man to bring a claim of "associative" pregnancy discrimination.

Before the Equality Act 2010 came into force on 1 October 2010, the law in Great Britain on associative discrimination was inconsistent across the different discrimination strands. Whilst under the Race Relations Act 1976 it was unlawful to treat an employee less favourably because of the race of a third party, associative discrimination was, generally speaking, not unlawful.

However, the domestic discrimination legislation had to be read in the light of European law. In Coleman v Attridge Law, Mrs Coleman was forced to quit her job after she requested time off to look after her four-year-old disabled son. Following decisions of the ECJ and the EAT, it was held that direct disability discrimination could arise where a person is treated less favourably because of the disability of a third party (e.g, Mrs Coleman’s son).

In Kulikaoskas, the Claimant and his partner were both dismissed from their employment after less than three weeks in the job. Mr Kulikaoskas alleged that he had been dismissed because of his partner’s pregnancy. He bought a claim under s3A of the Sex Discrimination Act 1975, which provided that a person discriminates against a woman if, during pregnancy and maternity leave, he treats her less favourably on the ground of her pregnancy.

The tribunal refused to accept Mr Kulikaoskas’s discrimination claim. He appealed on the grounds that s3A of the SDA 1975 had to be interpreted in the same way as the Disability Discrimination Act 1995 had been in the Coleman case – in other words, he should be protected against associative pregnancy discrimination.

The EAT dismissed his appeal. Its primary reason for doing so was that European law did not require section 3A of the SDA 1975 to be read as covering associative pregnancy discrimination. It distinguished the Coleman case because it had been decided under the Framework Directive. On the other hand, Mr Kulikaoskas’s claim fell under the remit of the Pregnant Workers’ Directive and the Equal Treatment Directive, which recognised that special protection is required in respect of the biological condition of pregnancy. If the intention of these Directives was to define discrimination as less favourable treatment of a person “in relation to a woman’s pregnancy” they could have done so.

Because it considered the law to be clear, the EAT declined to make a reference to the ECJ. Although it was not required to consider the position under the Equality Act 2010, it did comment that, given the same facts, it was not entirely clear if Mr Kulikaoskas’ claim would have succeeded under the new regime. Time, and case law, will tell…

Equality Act 2010 comes into force today

The majority of the Equality Act 2010's provisions come into force today, 1 October 2010. The provisions coming into force include:

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions, premises, work, education, associations and transport.


• The new concept of "discrimination arising from disability", to restore the protection from "disability-related discrimination" lost as a result of the House of Lords' decision in London Borough of Lewisham v Malcolm.


• Preventing employers from asking pre-employment health questions, except in specified circumstances (s60).


• Making pay secrecy clauses unenforceable (s77).


• New powers for employment tribunals to make recommendations in relation to the workforce as a whole (s124).


• The general provisions allowing voluntary positive action (s158).

There are still a number of provisions that have not yet come into effect and which the government is currently "considering how to implement", perhaps the most notable of which are:

• Provisions relating to combined discrimination (s14); and
• Provisions relating to positive action in recruitment and promotion (s159).

If you haven't already reviewed your equal opportunities policy documentation - and ensured any standard compromise agreement refers to the new legislation - there's no time like the present!

National Minimum Wage goes up today

The national minimum wage goes up today, 1 October 2010. The new hourly rates are:

• Standard (adult) rate: £5.93 (up from £5.80).
• Development rate (workers aged between 18 and 20): £4.92 (up from £4.83).
• Young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices): £3.64 (up from £3.57).

The adult rate will be extended to 21-year-olds; it currently applies to workers aged 22 and over.

It is also worth noting a new minimum wage of £2.50 per hour for apprentices. This will apply to apprentices under 19 or those aged 19 and over but in the first year of their apprenticeship.

Full details are available here.

Victimisation: Liability of the Provider and Recipient of a Discriminatory Reference

People often assert that they have been the victim of "victimisation" without understanding what it is. In essence, victimisation is a particular form of discrimination that involves treating a person less favourably because he or she has complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint.

The Employment Appeal Tribunal has now handed down an interesting decision addressing this area of law. In the case, Bullimore v Pothecary Witham Weld Solicitors, Ms Bullimore was a solicitor who lost an offer of employment because her former employer provided a poor reference. The reference specifically cited the fact that she had previously pursued a claim of sex discrimination against it and went on to refer to her "poor relationship" with the firm's partners and to her "inflexible" opinions. The employment tribunal, quite correctly, found that Ms Bullimore had been the victim of unlawful victimisation by both her former employer and her prospective employer.

The employment tribunal then went on hold that Ms Bullimore's claim for loss of future earnings against the reference provider was too remote. The EAT disagreed with this reasoning, observing that if this were the case and the prospective employer had withdrawn its offer of employment for a non-discriminatory reason, Ms Bullimore would have been left with no remedy for her loss of earnings. The EAT remitted the case back to the employment tribunal, the Respondents having already agreed that they would apportion damages between them to reflect their respective culpability and their degree of responsibility for the loss that Ms Bullimore had suffered.

Bonfire of the Quangos: Equality and Human Rights Commission to go?

The Daily Telegraph has published a leaked list of 177 quangos due to be abolished, which include a number of employment and training related quangos such as the the Union Modernisation Advisory Fund. A further 94 quangos remain "under review" and may be scrapped in the future. Perhaps the most notable of which, from an employment perspective, is the Equality and Human Rights Commission. 350 bodies escape the axe, including Acas and the UK Commission for Employment and Skills.

You can see the full list here.

New guide to managing work-related stress published

The Chartered Institute of Personnel and Development, in conjunction with the HSE and Acas, has published a new guide to managing stress at work. Entitled "Work-related stress: what the law says", it explores the potential legal consequences of ignoring these responsibilities, and gives advice on tackling stress through good management.

The guide is available to download here.

Survey shows coalition split on workers' rights

The British Chambers of Commerce has published results from a survey of MPs that suggest some divisions within the Coalition on top business concerns. The ComRes-conducted survey found clear discrepancies among MPs from the two Coalition parties, perhaps the most remarkable of which being on the issue of whether the balance of employment law has shifted too far towards the employee, to the detriment of the employer. 87% of Conservative MPs surveyed agreed that it had; 71% of Liberal Democrats polled disagreed. This is a notable difference of opinion on an issue that the BCC claims is preventing businesses from taking on more staff.

You can read the BCC's Press Release here.

Twitter

Well, we've finally taken the Twitter penny. You can find us on there by looking for "SynergyEmpLaw", or by clicking here. We'll be tweeting regularly to pass on anything in the employment law and HR arenas that happen to catch our eye. Log on and join the conversation!

Handing in your notice? This is the week you're most likely to do it...

This caught our eye: a staggering 37% of people handing in their notice this year will do so this week - the third week in September. And 24% of people do it in the first week of February. Actually, this is perhaps less surprising than it sounds - each of these weeks fall four weeks after the end of the traditional holiday seasons. And as the research comes on the back of EU figures showing British employees work harder than most of Europe (only Romanians and Bulgarians put in longer hours) it all starts to make perfect sense.

You can find the rest of the story here.

Pope to criticise equality laws

It has been reported that, in a speech on Friday, the Pope will criticise Britain's equality laws, and that they shouldn't overshadow Christians' rights to express their religion.

It's probably worth reminding ourselves of the area of law this largely stems from. First up - indirect discrimination on the grounds of religion or belief. In an employment context, this means that an employer must not have selection criteria, policies, employment rules or any other practices that apply to everyone regardless of religion, but have the effect of disadvantaging employees or job applicants of a particular religion or belief, unless the employer can show that they are justified. Attempts by Christians to rely on this legislation have led to a number of high profile media stories (perhaps most famously Eweida v British Airways, in which an air stewardess claimed, unsuccessfully, that BA's dress code, which forbade the wearing of a visible cross, was indirectly discriminatory). Secondly, Under the Equality Act (Sexual Orientation) Regulations 2007 no-one should be refused goods or services on the grounds of their sexuality; this sparked outrage in April this year when the then shadow Home Secretary, Chris Grayling, defended two Christian B&B owners who refused a room to a couple on the basis that they were gay.

In short, expect a heated media debate over the next few days...

Read more here.

Annual Tribunal Statistics Published

The annual statistics for the Employment Tribunal and EAT for the twelve months to 31 March 2010 have been published - and, as ever, they make for interesting reading. We've had a look at them so you don't have to, and the main points to note are:

• Employment Tribunal claims rose year on year by 56%. This has been linked to a rise in multiple claims (up by nearly 90%) and the changing economic climate.
• Because of "multiple airline industry cases that are re-submitted every three months", the greatest increases came in working time claims (297%) and claims for unauthorised deductions (122%).
• Claims for breach of contract increased by 29%, for age discrimination by 36% and claims for redundancy payments increased by a whopping 76%.
• 71% of equal pay claims and 57% of sex discrimination claims do not make it to a tribunal hearing, making them the claims most likely to be withdrawn.
• The claim most likely to be settled via ACAS conciliation is disability discrimination (45%).
• The claim that is most likely to be successful at tribunal is a claim for redundancy pay (24% of which were successful).

A question we're always asked by parties to a tribunal claim is "how much am I/they going to get?". There's inevitably a how-long-is-a-piece-of-string element to any answer you can give, but we can say what the mean/median and maximum amount of any award was for any particular claim. And they are:

• Unfair dismissal: £9,120 (mean), £4,903 (median), £234,549 (maximum);
• Race discrimination: £18,584, £5,392, £374,922;
• Sex discrimination: £19,499, £6,275, £442,366;
• Disability discrimination: £52,087, £8,553, £729,347;
• Religious discrimination: £4,886, £5,000, £9,500;
• Sexual orientation discrimination: £20,384, £5,000, £163,725;
• Age discrimination: £10,931, £5,868, £48,710.

If you want to see all of the statistics in detail, the report is available to download here.

It's World Cup time again, so there must be an employment angle - right?

The Federation of Small Businesses has produced guidance on how to deal with employees wanting to take time off during the finals. The guidance recommends a flexible working system to accommodate requests for time off, by granting annual leave or (if possible) special unpaid leave. Other suggestions include allowing staff to listen to the radio or watch the television at work. For those who call in sick in order to watch matches or deal with hangovers, a reminder about potential disciplinary action is recommended, together with a policy of requiring medical evidence for sickness absence during the tournament.

If you think all that sounds handy, you can grab a copy of the guide here.