It’s been another busy month for employment law developments. Chloe Edwards reports on the repeal of the default retirement age; a recent age discrimination claim against the BBC; and the new public sector duty to promote equality, which the government has confirmed will come into force in April.
In this month's round-up
The Health and Social Care Bill had its first reading in the House of Commons on 19 January 2011. In summary, the Bill proposes that commissioning will be transferred to GP commissioning consortia and the National Commissioning Board from 2013, and PCTs will be abolished. The NHS Trust model will be abolished from 2014 so all providers will be Foundation Trusts, or from the independent sector. Responsibility for public health will pass to local authorities, subject to a degree of central supervision. The Bill largely reflects the Health White Paper and the responses to consultations, and you can read ourbriefing note on the Bill here. Please click here to read our article on the workforce implications of the White Paper proposals.
The government announced this month that it will go ahead with its proposal to remove the Default Retirement Age, and all associated administrative procedures (i.e. the duty to notify employees of retirement and the ‘right to request to continue to work’ procedure).
At the same time as making this announcement, the government published its written response to its recent consultation on the issue.
In summary, this development means
- The DRA will be phased out between 6 April and 1 October 2011
- Full details will be set out in Regulations coming into force on 6 April 2011
- The last day on which an employee can be compulsorily retired using the DRA will be 30 September 2011
- The last day to provide the required 6 months' notice under the DRA procedure is, therefore, 30 March 2011.
Employers can still use the DRA between 30 March and before 6 April 2011, but if they do so they must use the short notice provisions, under which an employee could claim compensation (subject to a maximum of eight weeks' wages).
No new notifications of retirement may be issued, using the DRA, on or after 6 April 2011.
Acas has published new guidance for employers, Working without the DRA, and the Department for Work and Pensions has published Age Positive guidance on how employers should manage without fixed retirement ages. There will not be a formal statutory code of practice on dealing with employees after the repeal of the DRA.
The Acas guidance contains a very useful flowchart summarising the transitional arrangements.
The government’s response to the consultation confirms, in brief, that:
- retirement at a fixed age may still be lawful, if the employer can establish that it is objectively justified. This will be known as an Employer Justified Retirement Age, or ‘EJRA’. The Acas guidance explains how an employer may go about justifying a compulsory retirement age
- ‘retirement’ will no longer be one of the ‘potentially fair reasons for dismissals’, but the government has suggested that retirement, where an EJRA is in place, will amount to a dismissal for ‘some other substantial reason’ (under section 98 of the Employment Rights Act 1996). Note, however, that even where an EJRA is in place, an employer must still give adequate notice and follow a fair procedure, in order to comply with general fair dismissal requirements – for example, any representations made by the employee should be considered and a right of appeal should be offered
- rather than relying on a standard retirement age, the government suggests that employers should manage older employees in the same way as younger employees, by inviting discussion about their future plans and aims
- there will be an exception to the principle of equal treatment on the grounds of age for group risk insured benefits provided by insurers. There will not, however, be any equivalent exemption for employee share schemes
- detailed regulations will be published shortly and, once in force, their impact on employers will kept under review.
Finally, note that older employees will still be able to voluntarily retire at a time of their choosing, and draw their benefits from any occupational pension scheme.
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In O'Reilly v British Broadcasting Corporation and anor (unreported) an employment tribunal has upheld a complaint of direct age discrimination and victimisation against the BBC by an ex-presenter on the BBC's Countryfile programme, Miriam O'Reilly. The BBC had decided to replace Ms O’Reilly with younger presenters, after the programme moved to a primetime slot in April 2009, but failed to establish objective justification of this treatment. The tribunal did not accept that it was “proportionate to do away with older presenters simply to pander [to] the assumed prejudice of some younger viewers”, albeit that the tribunal decided that the aim of ‘appealing to younger viewers’ was legitimate. Ms O’Reilly had also brought a sex discrimination claim, which did not succeed. As an aside, this claim would be a good example of a ‘dual discrimination claim’ (age and sex discrimination), if this aspect of the Equality Act 2010 is ever brought into force.
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The government has confirmed that the new single public sector duty to promote equality, under the Equality Act 2010, will be brought into force, as planned, on 6 April 2011.
Similarly to the current public sector equality duties, the new duty requires that public bodies embed equality considerations into their day to day work. However, the Equality Act expands the public sector duty, so that it covers age, sexual orientation, religion or belief and gender reassignment, in addition to the current duties to promote race, disability and gender equalities.
In summary, the new duty is made up of general and specific duties. The general duty requires public bodies to have due regard to the need to
- eliminate unlawful discrimination, harassment and victimisation and other conduct
prohibited by the Equality Act 2010
- advance equality of opportunity between people from different groups
- foster good relations between people from different groups.
The general duty is complemented by specific duties, which require public bodies to set specific, measurable equality objectives and to publish information about their performance on equality.
The Government Equalities Offices has published a quick start guide to the new duties.
The Equality and Human Rights Commission has also produced a series of guides, explaining how public authorities may meet their equality duties.
Finally, the Government Equalities Office has this month published guidance on how employers may utilise the option to take ‘positive action’ in recruitment and promotion, under the Equality Act 2010.
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