Out with the old, in with the new
For
many businesses 2010 was another challenging year, but whilst 2011
may bring its own challenges, it may be useful to summarise some of
the main legislative changes of 2010 and talk about some of the
planned changes for 2011, so that you can prepare your
business.
Last year employment law was
dominated by the introduction of the Equality Act
2010, which had the role of consolidating all
discrimination laws in one single act. It is however likely to
bring its own difficulties as it has introduced some new concepts,
including a new definition of direct discrimination which includes
claims for associative discrimination (where an individual is
treated less favourably because s/he associates with a person who
has any of the protected characteristics listed in the Equality
Act) and discrimination based on perception (where someone is less
favourably treated because s/he is wrongly perceived to have a
particular characteristic).
2010 also saw some significant
changes in relation to family friendly legislation. The
introduction of the Additional Paternity Leave
Regulations will give eligible employees (usually fathers)
who will become parents on or after 3 April 2011, the right to take
up to six months' leave (in some cases paid) to care for their
child who is 20 weeks or over, if the mother returns to work
without exercising her full entitlement to maternity leave. It is
clear that this change will be welcomed by many parents (those
fathers who want to play a more active role in the upbringing of
their children or families where the mother earns more than the
father) but it is also likely to create some practical problems for
employers, who will have to deal with this new situation.
Whilst this legislation was
introduced by the Labour Party, Mr Clegg has just announced that he
is planning to go further in 2011. As part of his proposal, which
could become law in 2011, the mother would automatically get the
first 6 weeks off, but after this, the parents will be able to
choose how they want to divide the remaining period of parental
leave. This attempt to move away from typical gender roles may be
laudable, but it could cause some significant problems in practice.
Whilst employers are used to their female employees taking time off
to care for their children, are we going to witness situations
whereby men who decide to put their career on hold to take some
parental leave suffer from the same stigmatisation and miss out on
promotion when they eventually return to work? Only time will tell
but it will be interesting to see how the situation evolves.
The introduction of new fit
notes which was the subject of one of our previous
articles was also a hot topic in 2010. Initial feedback seems to
indicate that the new fit notes have created more problems than
they have solved, perhaps because GPs find it difficult to know
what adjustments they can suggest to an employee's role, if the
employee feels unable to return to work or suggest adjustments. A
review by the DWP is currently underway, so some feedback on the
impact of the 'fit notes' may be published in the next few months
and the system further reviewed.
As for 2011, it is likely that the
Equality Act will remain at the forefront of the government's
agenda with more provisions of the Act due to come into force,
including the single public sector equality duty and
positive action in recruitment and promotion due
to come in April 2011. This will give employers the option where
they have two or more candidates of equal merit to select one from
a group that is under represented in its workforce. It is however
unlikely that the Government will introduce the mandatory pay
audits which was contained in the Labour Government's legislation,
preferring instead to encourage a voluntary approach, at least
initially.
The final and important piece of
employment legislation is the abolition of the default
retirement age which will be phased out from 6 April 2011
and completely abolished on 1 October 2011. This effectively means
that if you had amended your office manual and introduced a
procedure allowing you to automatically 'retire' an employee age 65
or over, this policy will become unlawful come 1 October 2011.
Retirement will no longer be a fair reason for dismissal. Should
you therefore wish to retire an older employee, you will have to
apply the same test of reasonableness as if you wanted to dismiss
any other employee on grounds of capability or performance and/or
satisfy the standard test of objective justification for direct age
discrimination, i.e. the pursuit of a legitimate aim in a
proportionate manner. As this is likely to cause some issues in the
future, we will cover this subject in more detail in a future
edition of Anecdote. Meanwhile, you may wish to review your
policies and manual with these important changes in mind.
This little note should give you
the heads up on what will come in the next few months and hopefully
despite the cuts in public spending, your business will remain
strong and equipped to face the challenges 2011 may bring.
Alexandra Besnard
Sharon Langridge Employment Lawyers
www.sharonlangridge.co.uk