Sarah Lamont reports on the latest employment news: the arrival of the Agency Workers Regulations; Employment Tribunal Statistics for 2010/2011; the abolition of the Default Retirement Age; DWP guidance on Maternity Leave and Pension contributions and a recent case highlighting that for Article 6 of the ECHR to be engaged an employee's dismissal must categorically end their professional career.

Agency Workers Regulations: the latest

We can confirm that, as of 1 October, the Agency Workers Regulations have now come into force, despite the news reports last month that the Prime Minister's office had sought legal advice on the Regulations.  Following this Edward Davey, Minister for Employment Relations, went on to confirm that there were no plans to amend the Regulations or suspend their implementation. 

By way of a brief reminder, the Regulations apply to agency workers who are assigned to do temporary work (for hirers) through temporary work agencies (it will be for tribunals to determine any dispute about whether a particular arrangement falls within the scope of the Regulations).

The Regulations provide that all agency workers will be entitled to the following key rights:

  • the right to collective amenities and facilities (e.g. staff canteen, crèche, gym); and
  • the right to access to employment (i.e. access to information about job vacancies).

Furthermore after completion of a 12-week qualifying period, agency workers are now entitled to the same "basic working and employment conditions" that they would have been entitled to had they been recruited directly by the hirer. The Regulations are not retrospective and so those agency workers who were already on assignment on 1 October 2011 will have started to accrue their 12-week qualifying period from that date.

For more information on this topic, please see our May 2011 article on the Agency Workers Regulations and Guidance.

Ministry of Justice releases Employment Tribunals statistics

Statistics for Employment Tribunal and Employment Appeal Tribunal claims in the period 1 April 2010 to 31 March 2011 have now been published. 

The statistics show that:

  • There were 218,000 claims received by Employment Tribunals, representing an 8% decrease on the previous year, but a 44% increase on claims received in 2008/2009.
  • The number of claims disposed of reached 122,800, representing a 9% increase on the previous year.
  • The claims that increased in number related to the Working Time Directive (up 20%), Part-Time Workers Regulations (almost trebled) and age discrimination (up 32%).
  • Of the claims disposed of by Employment Tribunals, only 12% were successful, 29% the subject of Acas-conciliated settlements and 32% were withdrawn.
  • The average tribunal award in claims of unfair dismissal was £8,924; the average awards for discrimination, except on grounds of age, were between £8,515 (religious discrimination) and £14,137 (disability discrimination). The average award for age discrimination was much higher than any other type of discrimination at £30,289.
  • 355 costs awards were made in favour of respondents, while only 132 costs awards were made in favour of claimants.

Overall these statistics show some positive trends for employers, as well as serving as a salient reminder of those areas of the employment relationship that warrant close attention.

Abolition of Default Retirement Age

By way of a reminder, the default retirement age (‘DRA’) was abolished on 1 October 2011.

Under the new rules termination of the employment contract by compulsory retirement at a set age will be unlawful age discrimination and an unfair dismissal unless the employer:

  1. can justify (objectively) the retirement age and its relevance to the particular individual, and
  2. follows a fair procedure (including consideration of any request from the employee to continue working).

The difficulty attached to attempting to justify the continued use of compulsory retirement has led many employers to abandon the concept. However employers should be aware that it is not enough simply to announce this to their employees. Changes will need to be made to contractual documentation and employers will need to consider the impact of this on  various benefits policies, performance review systems and future planning procedures and where amendments and adjustments should be made.

For more information on this topic and the strategic and practical steps that employers should be taking, please see our August 2010 article, ‘Default retirement age has one foot in the grave’

DWP Guidance on Maternity Leave and Pensions

The Department for Work and Pensions have clarified that, in their view, pension contributions do not need to be made by an employer during a period of unpaid additional maternity leave.

A DWP spokesperson has confirmed that  "The Equality Act's Maternity Equality Rule ensures a woman on Ordinary Maternity Leave is entitled to employer contributions to the scheme as though she were paid her usual salary, whether or not she is paid. A woman on Additional Maternity Leave is only entitled to those employer contributions if she is paid."

Doctor’s dismissal did not engage Human Rights Convention

In Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust, the latest in the run of cases relating to Article 6 of the Human Rights Act, the High Court has recently considered a doctor's claim that he had a right to work in a specific field.  

The claimant (M) claimed that his Article 6 rights to a fair trial were engaged because his dismissal from his position prevented him practicing his profession, and that the disciplinary hearing he was subjected to therefore "determined his civil rights", leading to the argument that under Article 6 the disciplinary panel ought to have been independent and not solely drawn from the Trust.

It was noted that a right to practice one's profession did not have a corresponding obligation – namely, that a particular job or employment be provided - attached to it. The Court highlighted that M was still a fully-registered medical practitioner who was able to seek employment or be self-employed and therefore it was open to M to seek to practice his profession within both the private and the public sectors. His right to practice his profession remained and as a result his civil right had not been determined by the Trust's process.

This case helpfully confirms the principle which has emerged from previous cases on this question, namely that Article 6 will only be engaged if the outcome of a disciplinary hearing could result in an employee being deprived of the right to practice their profession. The case further confirmed the difficulty in engaging Article 6 in this respect as whilst it was appreciated that M's ability to secure a post in competition with others may be impeded because of his career history, it was reiterated that that was different from saying his civil right to practice his chosen profession had been determined.

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