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Thursday 9th February 2012

After a quiet summer we have had some exciting developments in the HR and employment law sphere.  Not only have there been new cases on the UK’s retirement age and the question of when do employees have the right to take holiday but there have been various government announcements on issues from the tax treatment of childcare vouchers to the points based immigration system.  

POLICY LEGISLATIVE CHANGES


The Equality Bill

The Equality Bill is still working its way through Parliament and over the summer it was amended to make it clear that treating women unfavourably because of pregnancy or maternity, whether the unfair treatment is at work, in shops or relating to public services, is unlawful and cannot be justified.

The other change to the Bill is the addition of a dual discrimination clause: a concept which has received considerable comment from the media.  The dual discrimination clause is designed to catch discrimination a individual suffers because of two protected characteristics i.e. an employee is unfavourably treated because she is female and older when there would be no discrimination if the individual was only female or only older.

Consultation on proposals on transferring maternity leave to men
The Government has announced a consultation on allowing new mothers to transfer up to 6 months of maternity leave to the father.  Mothers will only be permitted to transfer leave remaining after the first 6 months of maternity leave have been exhausted.  

The announcement has been welcomed by some family groups who believe that a move towards a more Scandinavian system of shared parental leave will help change ingrained attitudes that childcare is a woman’s problem.  

There is no proposal to increase the period of maternity pay so that only a maximum of 3 months of the transferred leave will be paid (at the same rate as statutory maternity pay).  The lack of paid leave is likely to lead to a relatively low take up.

Women in the finance sector receive bonuses 80% less than their male colleagues
A recent study by the Equality watchdog, the EHRC, into sex discrimination and the gender pay gap in the finance sector produced evidence of striking pay discrepancies.  The EHRC focused on the finance sector due to its historically poor record on sex discrimination.

The EHRC has recommended that firms treat gender equality as a business objective, increase support for workers with caring responsibilities and increase pay transparency.  To increase the latter the EHRC has recommended an outright ban on clauses preventing workers discussing their pay.  This goes further than the Government’s proposal, in the Equality Bill, to give protection to employees who are victimised for discussing pay.

Childcare vouchers to lose tax relief
In a move criticised by some as likely to increase the gender pay gap and exclude women from the work place, the Government has announced that it is scrapping tax and national insurance contribution exemptions on childcare vouchers.  Instead the Government will offer free childcare for 250,000 two year olds.  

Further details on the changes are expected in November but from April 2011 new joiners to childcare vouchers schemes will not benefit from the exemptions whilst existing members of the schemes will continue to receive the exemptions until April 2015.

Immigration changes making it harder to employ skilled foreign workers
The Government is continuing its changes to the immigration system by requiring all jobs to be advertised in the job centre for 4 weeks before employers can look for workers from outside of Europe.  The intention is that British workers will have longer to apply for roles and hear about them first.  Workers transferring to the UK will need to have completed at least 12 months employment with their company, rather than the previous 6 months and the minimum salary to qualify as a highly skilled worker will rise to £20,000 from £17,000.   


RECENT CASES

The High Court’s long awaited verdict on the UK’s default retirement age of 65

R (on the application of Age UK) v Secretary of State for Business Innovation and Skills and others

Employment lawyers and employees of a certain age have been eagerly awaiting the next instalment of the long running challenge to the UK’s default retirement age (DRA) of 65 years.  After the European Court of Justice’s decision that the DRA could fall within an exemption to the EU Directive against discrimination the High Court confirmed that the DRA was justified by “legitimate social policy objectives”.  As a result employees can still be retired at 65, even if they do not want to go.

However, the Government has committed to reviewing the DRA in 2010 and the High Court indicated that if the DRA was not scheduled for review at such time it might have reached another conclusion.  Watch this space for the next instalment!

Guidance on what period of IVF treatment is protected by the Sex Discrimination Act

Sahota v Home Office and ors

A first instance Employment Tribunal has held that the Sex Discrimination Act (the SDA)’s protection against discrimination on the grounds of pregnancy or maternity leave lasts until two weeks after IVF implantation has failed.  This decision seems a logical interpretation of the wording of S3A SDA which gives protection to female employees not entitled to maternity leave protection for two weeks after the pregnancy ends.  However, this decision is only from a first instance tribunal and is unlikely to be the final word on the issue.

AND FINALLY, DON’T DO IT LADIES…

The Recession is taking its toll
Cifas the fraud prevention organisation has record an increase in its members suffering employee fraud up from 59 cases in the last 6 months of 2008 to 100 cases in the first 6 months of 2009.  Most of these cases are attributed to women.

Jennifer advises technology sector businesses, commercial organisations, and helps companies deal with insourcings and outsourcings and large scale transactions and day to day employment issues.  Jennifer can be contacted at: jbartlett@kingsleynapley.co.uk.