Things employers shouldn’t ask …

2 09 2009

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.





Do Jobsworths wear moustaches?

15 07 2009

Bob Ainsworth, the Defence Secretary, has come under fire for not only being a political lightweight out of his depth in one of the most important offices of state, but also for wearing a moustache (well, we are approaching the silly season).  An article at www.timesonline.co.uk/tol/life_and_style/men/article6709864.ece suggests that a moustache often signifies the wearer is homosexual or, of more importance to this blog, that it is a symbol of “the constipated mentality of an inept, small-town jobsworth”, being the impression that Mr Ainsworth’s “facial furniture” gives to some.  I make no comment on that. 

Luke Leitch, the author of the article, also mentions notable other Jobsworths, including the bus-conductor Blakey from On the Buses  –  the inspiration for this blog.  I can just see him now saying “I hate you Butler” (or should that be “I hate you Mandelson”?)  Marvellous.

This Jobsworth doesn’t wear one by the way.  Mrs J wouldn’t hear of it.

On the subject of the family we’ve just come back from a relaxing family holiday (there’s a non sequitur for you) and I am still in holiday mode.  I was interested to read that the government wants to review the default retirement age of 65.  This announcement comes in the week that the Heyday challenge  makes its long circuitous route back to the High Court.  I doubt that we’ll get Judgment this week, of course, but at long last the end may be in sight. 

Whether the government’s decision to review the state retirement age has anything to do with them contemplating defeat in the High Court I couldn’t say but with increasing  numbers of pensioners to support in the next thirty plus years it makes sense to allow those who want to carry on working able to do so.  There is a mechanism in place at the moment where employees can ask to work on after the default retirement age but it is a bit of a palaver and, like many people, I cannot see how a default retirement age does not discriminate against older people.

More to come on this.





Rolls Royce v Unite: an update

8 06 2009

On the 28th November last year I posted on the above case, which was heard in the High Court, on the redundancy criteria used by Rolls Royce when selecting candidates for redundancy.  Please see that post for more details of the criteria used.  The interesting point about this particular case is that it looked at the interplay between redundancy selection criteria and the Age Discrimination legislation.  Rolls Royce were seeking a declaration from the Court that their redundancy criteria, which added one point per year of service to individual employees’ scores (in addition to the scores they received for various other criteria) WAS in breach of the Age Discrimination regulations.  This is because employees with longer service would get more points and was thus indirectly discriminatory towards younger employees. 

The case then went to the Court of Appeal, which upheld the High Court’s decision.  The result of this case is that it is not a breach of the age discrimination to award employees points for length of service.    Those regulations do provide that an employer may justify a policy that is, on the face of it, age discriminatory, provided they can justify the reason for the policy.  The High Court viewed rewarding loyalty to longer serving staff and recognising that older employees would probably struggle more to get new employment than younger people as sufficient justification.

The rather unusual factor here was that it was Rolls Royce seeking to overturn its agreed redundancy policy and wanted the court to find that its policy was in breach of the age discrimination regulations.  The company clearly wanted more flexibility in being able to select candidates than its policy allowed and it was the Union that was defending the existing policy, which it had negotiated on behalf of its members in less difficult times. 

Ultimately this decision is probably going to be of limited value apart from in large companies that have collective agreements with their (unionised) workforces that have been in place for some time and pre-date the introduction of the Age Discrimination regulations in 2006.   In those situations it will be of help to the older worker.   Elsewhere the situation is likely to remain the same.  What this decision doesn’t allow is for older employees to claim positive discrimination in their favour.  The redundancy selection criteria used by employers is open to challenge in all cases, if an employee thinks they have been discriminated against on grounds of age (or other discriminatory factor) but this result is likely to be of academic interest only.    

 

It would, perhaps, have carried more weight if it had been the decision from the Court of Appeal following a case that had been heard before an Employment Tribunal and then the Employment Appeal Tribunal, rather than a rather “academic” analysis of the law by the High Court but, nonetheless, it is a useful addition to the employee’s (and Claimant’s solicitor’s armoury





The latest on Heyday

6 03 2009

Regular readers may recall I’ve been following the tortoise like progress of the challenge against the “default retirement age” (“DRA”) of 65 that is enshrined in the Age Discrimination legislation. It is becoming a bit like the case of Jarndyce v Jarndyce in Bleak House, the Chancery case that went on for so long no one could remember what it was originally about.  Basically, Heyday, part of Age Concern allege that having any fixed retirement age is inherently discriminatory.  The Age Discrimination Regulations allow discrimination only if it can be objectively justified – ie that the employer has a good reason for imposing the restriction.  In this case the Defendant is the government. 

 

Last September the Advocate General of the European Court of Justice produced his opinion stating that the DRA was not in breach of the Equal Treatment Framework Directive and, on the issue of whether having a DRA at all was discriminatory, he recommended that the matter be referred back to the UK courts for a decision.  The ECJ has followed this recommendation, as expected and so the whole case grinds on. 

 

Commentators seems split over whether this is good news for employers or bad for employees.  It certainly is disappointing for all those people whose cases in the ET have been stayed pending the decision, because it will be several months before the High Court hears it and many more months before any subsequent appeals are held thereafter.    It doesn’t help employers either as they won’t know where they stand with employees coming up to 65.  Finally, it doesn’t help Employment Tribunals because more and more age discrimination claims are being lodged and then getting blocked in the system awaiting the final result.  Like Jarndyce v Jarndyce, this one will run and run.

This article will appear in the “Docklands” and “Peninsula newspapers week commencing 9th March.





Redundancy and Age Discrimination

28 11 2008

Over the last few weeks I’ve been writing about the various issues surrounding redundancy procedure and selection.  A couple of weeks ago an interesting High Court case was reported which dealt with the issues arising on redundancy where selection on the grounds of age became relevant.  The case in question was Rolls-Royce v Unite, and was unusual in that the employer was seeking to argue that its own selection criteria was age discriminatory and the Union was arguing that it was not. Normally, of course, one would expect the positions to be reversed.

In this case, Rolls Royce operated a selection criteria that gave points for various factors, such as skill and expertise, achievement of targets, contribution to the business, self-motivation and, particularly relevant for these purposes, length of service. Those with fewest points overall were selected for redundancy. The effect of the length of service factor meant that workers with long service would gain more points and thus be less likely to be selected for redundancy than workers with shorter service who were more likely, therefore, to be younger.  Rolls Royce argued that this policy was indirectly discriminatory because it favoured older workers. 

The Court disagreed and held that such a policy could be justified by the employer (justification for a policy that is otherwise discriminatory being a defence under Age Discrimination legislation) on the grounds that the policy fulfilled a “business aim”, namely it was a contractual benefit rewarded employees loyalty and also that older workers would find it harder to obtain alternative employment upon redundancy.  The scheme was also found to be a means of enabling redundancies in the workforce to be handled “peaceably”. 

What does this case mean for employees and employers?  For businesses it is a double-edged sword because although on the one hand they may be relieved to know that the application if such a selection policy will not land them with claims for age discrimination, it also means that the flexibility they seek in selecting candidates for redundancy is reduced.  Remember, in this case it was Rolls Royce that sought to argue its own policy was discriminatory. The case is also good news for older employees with long service and less good for those with shorter.

 

 This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 1st December.





Will you be made to retire at 65?

26 09 2008

It might seem strange to write about retirement when many people in London are haunted by the spectre of redundancy, but a legal development in Brussels this week potentially affects when we can all retire.  I wrote a while ago about the Heyday challenge to the Age discrimination legislation that came into force almost exactly two years ago. Those Regulations provide that it is lawful to require a person to retire at 65.  A younger age is unlawful unless it can be justified. Heyday, part of Age Concern, argued that having this default age was discriminatory in itself.  This week the Advocate-General at the European Court of Justice has published his opinion stating that the default age is not contrary to European law provided  it is a proportionate means of achieving a legitimate aim and that is an issue for national courts to decide.  The ECJ will decide the issue in December, but there is a good chance it will follow the Advocate-General’s opinion. 

Why is this important?  65 was chosen as a default retirement age to assuage those people that want to retire before they join the choir invisible and also employers (who should, of course, know better) want to know they can get shot of that awkward old bugger in accounts.  However, many people want or need to carry on working and it is easy to see why Heyday brought its challenge.  If the ECJ upholds the Advocate-General’s opinion it will then be left to the government to justify the default retirement age to the UK courts and that will be a very interesting case as I struggle to see how the government can justify making people retire at 65. It goes to the very heart of the age discrimination regulations.

The situation, for now, is as unclear as ever.  Employers will breathe a sigh of relief, for the time being, and those employees with Employment Tribunal claism stayed pending the outcome of the Heyday challenge will just have to carry on waiting.





Age Discrimination – are the floodgates about to open?

26 09 2008

A few weeks ago I wrote about the lack of impact that the Employment Equality (Age) Regulations have had since coming into force in October 2006. These are colloquially known as the Age Discrimination regulations.  However, that may be about to change.  Last year Heyday, a not-for-profit organisation and part of Age Concern, launched a judicial review in the High Court against the legality of the default retirement age of 65, imposed by the Regulations. This means that a person can be forced to retire at 65 and it will not usually constitute unfair dismissal, provided the correct procedures are followed.  Heyday claim that this is illegal and in breach of the EC Equal Treatment Framework Directive 2000/78.  The case has been referred to the European Court of Justice pending a final decision, which is not expected before 2009.

 

It was thought that the Heyday case had little chance of success, especially as a similar challenge in Spain was rejected by the ECJ last week.  The prospects for employees wanting to take action now was not helped by a decision in the Southampton Employment Tribunal in the summer which said that such claims could not be stayed (i.e. put on hold) until the Heyday case is decided.  That decision has now been reversed and, it seems, it will be permissible for employees facing retirement dismissal to submit claims to an Employment Tribunal to protect their position pending the decision in Heyday.  The advice for employees must be to seek legal advice now if you are coming up to retirement age and your employer is not agreeable to you carrying on past 65.  Do not wait for the Heyday judgment as you may lose the right to sue for unfair dismissal in the meantime.

 

This article first appeared in the “Docklands” newspaper