Ward Hadaway: Employment Focus
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Harmajinder Hayre Partner
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Looking ahead in 2010 2010 looks likely to be an important year in terms of new employment legislation and the outcome of some significant employment decisions. Legislation and cases to watch out for in 2010 include the following: Equality Bill The Queen’s Speech confirmed that the Government intends to pursue the Equality Bill (the Bill) to “narrow the gap between the rich and the poor, tackle discrimination … and bring transparency in the workplace to help address the differences in pay between men and women”. The long anticipated Bill is expected to receive Royal Assent in April with the majority of provisions coming into force in October 2010. The aim of the Bill is to harmonise and strengthen all of the existing discrimination laws. The Bill proposes significant changes which will make gender pay discrimination more transparent, for example by introducing a power to require large employers to report on their gender pay gap, and limiting the enforceability of contractual “pay secrecy” clauses. The Bill will have a big impact on existing disability discrimination as it proposes to change the concept of disability-related discrimination, introduce indirect disability discrimination, and strengthen provisions to protect disabled people from discrimination during pre-employment health enquiries. The Bill also benefits the carers of the disabled by introducing provisions on associative discrimination. Businesses are advised to review and update their existing policies and procedures in light of the wholescale reform of equal opportunities and diversity legislation. Decrease in compensation From 1 February 2010, the maximum compensatory award for unfair dismissal decreases from £66,200 to £65,300. A week’s pay for the purposes of calculating redundancy payments and basic awards will remain at £380. This is due to the fall in the Retail Price Index between September 2008 and September 2009. Fit Notes Default Retirement Age Following the decision in the “Heyday” case in September 2009, the Government has brought forward the review of the default retirement age to 2010, and it is possible that a higher or no default retirement age will be considered in the near future. Important cases to be heard in 2010 In the case of Eweida v British Airways Plc, the Employment Appeal Tribunal upheld the Employment Tribunal’s finding that an employee had not been indirectly discriminated against by British Airways as a result of a uniform policy which required her to conceal the cross on her necklace. The Court of Appeal will hear this case on 19 and 20 January 2010. If the Court of Appeal allows the appeal from the employee, it could have implications on employer’s uniform policies, and they will be forced to consider whether their policy may indirectly discriminate against any employees on similar grounds. We are currently awaiting the decision of the Supreme Court in the case of Alemo-Herron and others v Parkwood Leisure Ltd. The case relates to the effect of TUPE where the transferring employees’ contracts incorporate a contractual right for terms and conditions such as pay to be determined by the old employer under their existing negotiating mechanism and whether the new employer is legally bound by the terms agreed. In the case of R (on the application of G) v The Governors of X School and another [2009], a teacher was accused of having an inappropriate relationship with a child. At his disciplinary, the school refused his request for legal representation. The High Court decided that given the facts and the gravity of this particular case, the teacher could not be expected to defend himself, and it was considered that a trade union representative colleague would not be sufficient; therefore he was entitled to legal representation at the disciplinary hearing. The School appealed this decision and it was heard by the Court of Appeal in October 2009. We are currently awaiting the reserved judgment. However, if the decision confirms that the teacher was entitled to legal representation, it could lead to similar rights to legal representation in regulated professions during internal hearings where the outcome maybe dismissal. Harmajinder Hayre is a Partner in the Employment Team at leading North law firm Ward Hadaway. He can be contacted on 0113 205 6712 or at harmajinder.hayre@wardhadaway.com .
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