Transcript Employment Law Presentation

Edinburgh Napier University
Employment Law Update
August 2010
Presented by
Debbie Fellows, Barry Nichol and Andrew Brown
Employment Law Update – Topics
for today
• Equality Act 2010 – Barry Nichol
• Changes to Maternity and Paternity Leave – Debbie
Fellows
• General update - Andrew Brown
– Including:
• Fit Notes;
• The default retirement age;
• Right to legal representation at disciplinary
hearings;
The Equality Act 2010 – The
Importance of Being Diversity Aware
• Ensuring equality
• High compensation payments and expensive
litigation
• Damaging publicity and loss of staff morale
What does the law of
discrimination cover?
• All areas of employment are covered
Protected characteristics
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Sex
Gender reassignment
Being married or being in a civil partnership
Being pregnant or on maternity leave
Race (including ethnic or national origin, nationality
and colour)
Disability
Sexual orientation
Religion or belief
Age
Forms of discrimination
• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation
Defences to discrimination claims
• Justification
• Occupational requirement
Potential headaches
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Recruitment and promotion decisions
Harassment
Working hours and time off
Dress and appearance
Stress and disability
Practical steps to reduce risk
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Provide staff handbooks and policies
Provide training on equal opportunities
Set up clear procedures for staff
Review existing policies and contracts
Make reasonable adjustments where
appropriate
• Accommodate different cultures and beliefs
• Consider requests for flexible working
Why do we need an Equality Act?
Current arrangements are unduly complex.
Discrimination legislation currently spans:
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9 Acts of Parliament
Approximately 100 Statutory Instruments
Over 2000 pages of Guidance and Codes of Practice
Differing legal tests
Why do we need an Equality Act?
Inequalities are still evident in society:
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Women earn approximately 22% less per hour on average than men.
Less academic wealthy children overtake poorer more academically
able children at school by the age of 6.
Disabled people are twice as likely to be out of work than non-disabled
people.
Someone from an ethnic minority is 13% less likely to find work than a
white person.
One in five older people were unsuccessful in obtaining a quote for
travel insurance, car insurance and car hire.
60% of lesbian and gay schoolchildren experience homophobic bullying
and many experienced suicidal thoughts as a result.
Why do we need an Equality Act?
• Unless reforms are made, it is predicted that
it will take:
• until 2085 to close the gender pay gap
• almost a hundred years before people from
ethnic minorities get the same job prospects
as white people
Overview of the Act
• Consolidation of existing discrimination
legislation
• Re-states existing discrimination legislation
i.e. definition of race
• Timetable for commencement of provisions
Key changes
Defining discrimination:
(a) Harmonise the definition of direct discrimination
(b) Harmonise the definition of indirect discrimination
(c) Harmonise the concept of justification in
discrimination cases
(d) Remove the requirement of a comparator in
victimisation cases
(e) make employers liable (in some circumstances) for
harassment by 3rd parties in the workplace
Discriminating lawfully
• Occupational Requirement defence
• Extension of positive action
Disability
• The Act will:
• Recast the concept of disability-related discrimination
• Introduce indirect disability discrimination
• Prohibit employers’ pre-employment health enquiries
Equal pay and contract terms
The Act will:
• Introduce indirect discrimination to equal pay claims
• Allow direct discrimination claims in respect of pay
based on hypothetical comparators
• Limit the enforceability of contractual pay secrecy
clauses
• Provide for large employers to report on their gender
pay gap
Race
• Definition of race extended?
• Inclusion of “caste” within definition of race?
Gender Reassignment
• Change to definition of Gender Reassignment
• Protection of transsexuals from indirect discrimination
• Protection from discrimination based on perception
and association
What do employers need to do?
• Review policies and procedures, especially equal
opportunities and recruitment
• Consider whether to take advantage of the new
positive action provisions
• Audit recruitment processes to remove
health/disability-related questions
Maternity leave and pay
entitlements
• Time off for antenatal care
• 26 weeks Ordinary Maternity Leave (OML) and 26
weeks Additional Maternity Leave (AML)
• Up to 39 weeks Statutory Maternity Pay (SMP)
• Maternity Allowance
• Keeping in touch days
• Right to return to the same job
• Protection from sex discrimination
• Employers must protect health and safety of pregnant
employees
Paternity entitlement
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Statutory Paternity Leave entitlement
Eligibility requirements
Purpose of the leave
Timing of leave
Notice and evidential requirements
Return to work
Changes to Maternity and
Paternity Leave
Additional Paternity Leave
• Introduction
• Additional Paternity Leave Regulations 2010 – came
into force on 6 April 2010
• The Regulations will apply to parents (and adoptive
parents) of children due on or after 3 April 2011
Eligibility
•Additional eligibility requirements
Regulation 5
• Taking additional paternity leave
• Earliest a father will be able to take APL – 20 weeks
from the date of birth
• Minimum period of APL – 2 weeks
• Maximum period of APL – 26 weeks
Regulation 6
• Timing and notice requirements
• Minimum of 8 weeks notice of intention to take APL
• Employer must confirm entitlement to APL within 28
days of request
Regulation 6 cont.
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Evidence of entitlement: self-certification
An employee must give the employer:
a) a leave notice
b) an employee declaration
c) a mother declaration
Employer can request from the employee:
a) the child’s birth certificate
b) name and address of mother’s employer
Effect of APL on the contract of
employment
• Continuing contract of employment
• Right to benefit from terms and conditions of
employment contract
Keeping in touch/Return to Work
• Keeping in touch days
• Will apply to APL
• Right to return to:
• a) the same job and
• b) on the same terms and conditions before APL
began
Case Update
• Gassmayr v Bundesminister fur Wissenschaft
und Forschung (Gassmayr)
• Parviainen v Finnair Ovi (Parviainen)
• De Belin v Eversheds Legal Services Limilted (De
Belin)
Introduction to Fit Notes.
• “Statement of Fitness to Work” introduced by the
Social Security (Medical Evidence) Regulations and
the Statutory sick Pay (Medical Evidence)
(Amendment) Regulations 2010
• Shifts onus onto the employer
• Phased return to work, altered hours, amended
duties and or workplace adaptions
Key Points
• “fit for work” and “not fit for work” replaced with “not
fit for work” and “may be fit for work”
• GP can state how condition will affect employee’s
work and suggest ways employer can enable a return
to work
The Effect of Fit Notes
• Disability Discrimination issues
• For managing long term absence
Disability discrimination
• Definition: “a physical or mental impairment
which has a substantial and long-term
adverse effect on his ability to carry out
normal day-to-day activities”
• Reasonable adjustments
• Occupational Health
Managing absence
• Fair procedure, consider the following:
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Investigate the cause and likely length of absence
Keep in contact with the employee
Obtain medical evidence
Meeting and consulting with employee regarding
medical evidence
– Consider reasonable adjustments or alternative
employment
Default retirement age
• Consultation document: Phasing out the Default
Retirement Age
• Key dates: April 2011 and October 2011
• Continuing with a compulsory retirement age: Seldon
v Clarkson Wright and Jakes [2010] EWCA Civ 899
• Implications for managers
Legal representation at internal
Disciplinary Hearings
• Position as understood until recently
• When might we go further?
• Recent cases
Kulkarni v Milton Keynes Hospital
Foundation NHS Trust
• Year one Doctor
• Accusation by patient
• Represented by non-legally qualified adviser from the Medical
Protection Society (MPS)
• Contract of employment
• Article 6 ECHR
R (on the application of G) v X
School and others
• Teaching Assistant
• Accused of kissing a 15 year old boy
• Independent Safeguarding Authority (ISA)
• Article 6 ECHR
R (on the application of Kirk) v
Middlesbrough Council
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Social worker
Breakdown of marriage to Mr Kirk
Accusations of sexual abuse
Subsequent child with Mr Betiku
Relationship breakdown
Stand alone private employment law matter where
potential consequences were "nowhere near the
scale of severity" involved in R (on the application of
G) v X School and others.
Hameed v Central Manchester
University Hospitals NHS
Foundation Trust
• Doctor
• Argued disciplinary policy not compliant with Article 6
• Distinguished from Kulkarni
• Leave to appeal granted
Implications for Edinburgh Napier
• Disciplinary policy
• Nature of post
• Implications of dismissal/disciplinary
• Confer with HR
• Role of lawyer
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