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Thursday 9th February 2012

After the recent exciting political negotiations the country seems to have ended up with a Conservative Liberal coalition.  What this means for employment law is, like many issues, slightly unclear at the present time.  Prior to the election the Conservatives pushed their commitment to family rights and it will be interesting to see whether further changes are made to the rights of carers, to the flexible working rules and on paternity/maternity leave.  We will keep you updated in the next edition of this newsletter.

POLICY AND LEGISLATIVE DEVELOPMENTS


The Equality Act

The last major piece of employment legislation passed by the previous government was the Equality Act 2010 (Act) which is due to come into force in October 2010.  This is a very lengthy act containing provisions that are likely to have a wide ranging effect, particularly on public authorities.  The Act tidies up previous employment legislation rather than making major changes and the more interesting changes are set out below:
  • It permits positive action where employers have a choice between two or more equally suitably qualified candidates;
  • It permits discrimination claims based on two protected characteristics.  This will be helpful for situations such as female TV presenters of a certain age;
  • It limits the enforceability of contractual secrecy clauses.  This may have an impact on the City but it is far from a prohibition on secrecy clauses.

Fit Notes
Doctors can now sign employees as unfit to work or fit to work under certain circumstances.  It is too early to say how much of an impact Fit Notes will have on work place absence but it may prove helpful to employers struggling with employees on long term sick whose doctors have previously provided the briefest of details on the employee’s health.  

Paternity Leave
New Regulations, applicable to parents of babies born on or after 3 April 2011, give fathers the right to take up to 26 weeks paternity leave if the mother returns to work during the period of maternity leave.  The father is only entitled to leave for the remainder of the maternity leave which the mother did not take.  

The difficultly for employers is that they have no right or even ability to know whether the mother has returned to work, how much leave she has taken and therefore whether and to how much leave the father is entitled to.  

We suggest that you put conditions into your maternity and paternity leave policies to address such potential problems.

Retirement Age
A statement by the coalition summarising their position specifies that the default retirement age (currently 65 but subject to challenge in the Heyday litigation) will be phased out.  It is unclear whether this means it will be raised before it is later abolished and we await to see the final position.

RECENT CASES

Miller v Bellway Homes Ltd: Redundancy of part time workers
Ms Miller was a part time sales manager who was selected for redundancy.  Ms Miller identified another sales manager role in the organisation that she wanted to apply for but her employer insisted that the new role could not be carried out on a part time basis and she was made redundant.  The Employment Tribunal held that the requirement that the role was permanent was not justified and the employer’s treatment was sexually discriminatory.

O’Neill v Buckinghamshire CC: Risk assessments of pregnant workers
A teacher tried to claim that she had suffered sex discrimination as a result of her employer’s failure to carry out a risk assessment.  The Employment Appeal Tribunal held that as there was no evidence that the teacher’s work involved a risk to her health and safety there was no obligation to carry out the risk assessment and that the failure to carry out a risk assessment was not sex discrimination.


Jennifer Bartlett advises technology sector businesses, commercial organisations, and helps companies deal with insourcings and outsourcings and day to day employment issues from grievances to discrimination claims. Jennifer can be contacted at: jbartlett@kingselynapley.co.uk.