Legal Developments
Employment Law - A roundup of 2009
Employment law is an area of law that is continually evolving and 2009 saw this trend continue. Below is a summary of last year's important developments.
ACAS Changes
The new ACAS Code of Practice ("the Code") provisions came into force in April 2009 to assist employers and employees deal with poor performance and misconduct within the workplace. Whilst it will no longer be automatic unfair dismissal if the employer fails to comply with the Code, an unreasonable failure to follow the Code would enable an Employment Tribunal to increase an award by up to 25%.
The Code also encourages mediation by a third party where both the employer and employees are unable to resolve a problem. The Code and supporting guidance are available on the ACAS website.
Age discrimination and retirement
The longstanding case of R (on the Application of Age UK) v Secretary of State for Business, Innovation and Skills (more commonly know as the 'Heyday case') concerned Heyday challenging the statutory retirement age of 65. The Employment Equality Age Regulations 2006 ("the Regulations") were introduced to prevent direct and indirect discrimination in respect of age. However, regulation 30 of the Regulations provides that dismissing an employee at the age of 65 shall not be unlawful where the reason for dismissal is retirement. Furthermore, regulation 3 of the Regulations provides that discrimination may be justified if the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Heyday claimed that the Regulations did not satisfy European legislation being the Equal Treatment Framework Directive. However, the High Court dismissed Heyday's claim and stated that dismissal for retirement was a way of advancing the Government's legitimate social policy objectives. Although this case ruled that the default retirement age was justified, the Government have bought forward its review of the default retirement age to this year.
Holiday Pay during Long term Sick Leave
The case of HM Revenue and Customs v Stringer concerned workers rights to annual leave during periods of long-term sickness absence. The House of Lords referred the case to the European Court of Justice where it was held that employees still accrue annual even when away on long-term sickness absence.
As the Working Time Regulations 1998 do not give the employer the right to delay an employee's annual leave to the next year, employees should be entitled to take their holiday whilst on sick leave. Employers should ensure that employees on long-term sick leave take their holiday to avoid liabilities for outstanding holiday pay accruing over significant periods of time.
Future development -The Equality Bill
The Equality Bill will be in force this year to harmonise and strengthen the law and discrimination.
The new law on equality will widen the current definitions of direct discrimination and harassment to include claims based on 'perception' and 'association.' Furthermore, the act will extend the scope of positive action to encourage employers to select an under-represented minority where the employer has to make a selection on two equally qualified candidates.
Please note that the information and any guidance on the law contained in this article is provided for information purposes only. The information and guidance does not, and is not intended to, amount to legal advice. Every reasonable effort is made to make the information and guidance accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the firm.
