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Setting a retirement age - is it discriminatory?

In the European Court of Justice (ECJ) case of Palacios de la Villa v Cortefiel Servicios SA, concerning Spanish legal provisions which permit compulsory retirement, the Advocate General has delivered an opinion which may have a significant impact on age discrimination legislation in the UK.

The Advocate General has stated that the principle of non-discrimination on the grounds of age under the Equal Treatment Framework Directive does not apply to national laws which set retirement ages. He also suggests that even if the Directive does apply to such laws, setting a retirement age would be justified.

A full judgment from the ECJ is expected before the end of the year. Whilst the opinion of the Advocate General is not formally binding upon the ECJ, it is usually followed. If the ECJ agrees with the Advocate General, its judgment will undoubtedly be a setback for Heyday, the retirement organisation, following its recent challenge to the UK mandatory retirement age (as reported in our earlier update).

Considering expired disciplinary warnings

The Employment Appeal Tribunal (EAT) has recently confirmed that expired disciplinary warnings should not be taken into account when deciding whether to dismiss an employee.

In Airbus UK v Webb, almost one month after the expiry of an earlier final written warning relating to the misuse of company time, Mr Webb committed a similar offence, along with four other colleagues. Whilst Mr Webb was dismissed, his colleagues were not, because they had no prior disciplinary record.

Acknowledging that this was a finely balanced point, the EAT adopted the position followed in an earlier Scottish case, and held that a tribunal is obliged, and not merely entitled, to ignore expired warnings. It noted that the lesson for employers is to take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances. The EAT recognised, however, that there is now a tension between the desire for employers to formulate their own rules regarding warnings and the guidance set out in the ACAS Code. If employers are going to be denied the right to have regard to expired warnings in any circumstances, the EAT stated that they must be allowed reasonable flexibility to formulate their rules to allow for exceptional cases - with the proviso that such rules, which will inevitably become more complex, are carefully drafted and brought to the attention of employees.

Forced to choose between baby and job

An employee who claimed that her former employer told her to choose between her unborn baby and her career has won her sex discrimination claim, according to a report in Personnel Today.

When Angela Hildreth informed her employer she was pregnant, she claimed that she was issued with an ultimatum and told that if she decided to keep the baby, the company could not keep employing her because it was "a young business and we have to put that first". The Employment Tribunal found that Ms Hildreth had been the subject of unlawful discrimination, detriment and harassment. A remedies hearing is due to be held in the next couple of months.

Sexual orientation discrimination hits the headlines

An Employment Tribunal has awarded a media sales manager nearly £120,000 after he was discriminated on the grounds of his sexual orientation, according to the BBC.

Jonah Ditton was sacked after eight days by his employer, CP Publishing Ltd, and advised that he was not "psychologically balanced". The tribunal heard that Mr Ditton's boss had also called him "a wee poof" and said he looked like "a cream puff". Mr Ditton's award reportedly included £10,000 for injury to feelings, £76,937 for pecuniary loss, £5,291 interest and £26,081 for the company's failure to follow statutory procedures.

An Employment Tribunal has also reportedly awarded over £17,000 to an employee after upholding his claims of constructive dismissal and discrimination on the grounds of sexual orientation following his complaints about homophobic graffiti, according to Workplace Law. In Martin v Parkam Foods Ltd, Mr Martin complained after finding offensive and homophobic graffiti in the men's toilets with his name written next to it. The company had placed a warning in the toilets about the graffiti, but made no mention of homophobia. Whilst the company had policies in place to address discrimination in the workplace, they were found to be ineffective. Mr Martin's award in this case included £10,000 for injury to feelings and £5,000 plus interest for aggravated damages for the treatment Mr Martin received after making his complaints.

Guide to prevent bullying and harassment of gay employees

Stonewall has launched a guide designed to help employers to support and protect lesbian, gay and bisexual staff in the workplace, and follow best practice.

In light of the above tribunal awards, this is a timely guide and emphasises the importance of ensuring that adequate policies are not only in place but also implemented effectively.

Managed service companies - draft legislation published

Draft legislation has been published by HM Treasury and HM Revenue and Customs (HMRC) which will extend liability for the unpaid PAYE debts of managed service companies (MSCs) to certain third parties from April 2007.

An MSC is essentially an intermediary company through which the services of a worker are provided to an end client. In an MSC, the worker is invariably not in business on his own account and is not exercising control over the business (the opposite is usually the case for personal service companies). The control, instead, lies with the provider of the MSC (the "scheme provider"). Whilst there is existing legislation which applies to intermediary companies, HMRC believes that MSCs are not following the rules and are failing to ensure that the correct levels of tax and NICs are being paid in respect of the workers.

The proposed solution is to remove MSCs from the scope of the existing legislation and subject them to a separate tax regime. This will require them to operate PAYE and NICs on all sums paid to workers and will give HMRC the power to recover unpaid NICs and PAYE liabilities of the MSC from certain third parties. These third parties are now outlined in draft legislation and include the directors, officers and associates of the MSC, the MSC scheme provider and directors, officers and associates of the MSC scheme provider. Liability is also intended to capture any person who has encouraged, facilitated or otherwise been involved in the provision by the MSC of the services of a worker, which potentially includes employment businesses, the end user client and workers in the MSC.

Protecting vulnerable agency workers - DTI consultation

The DTI has issued a consultation paper this week, outlining its proposed measures to address the "bad practices" which affect vulnerable agency workers.

The measures aim to give workers a right to withdraw from accommodation, transport or other services provided by an agency without suffering detriment and also propose to ease the administrative burden on agencies by removing the requirement to provide workers on assignments of less than five days with written information (as long as the requisite qualifications and rates of pay are included in the agency's terms and conditions).

The Government also proposes to clarify the guidance for agencies supplying drivers and limit the fees charges by agencies in the entertainment and modelling sector. The consultation closes on 31 May 2007.

Launch of Disability Agenda

The Disability Rights Commission has recently launched a Disability Agenda which focuses on ten public policy prescriptions for the Government, ahead of the launch of the Commission of Equality and Human Rights (CEHR) in October 2007.

Key to the agenda is the proposal of a simpler, fairer legislative framework and the need to widen employment opportunity for disabled people.

How to deal with requests for personal information - good practice note

The Information Commissioner's Office (ICO) has published advice to enable small and medium sized firms (SMEs) to deal with requests from individuals for access to information held about them.

The good practice note is part of a series published by the ICO to help explain data protection in simple terms. It distinguishes between requests that SMEs can treat as part of normal business practice and those that should be dealt with formally under data protection legislation. It also includes information on checking a person's identity and what SMEs should do if the information requested includes details about other people.

Combating employee fraud

CIFAS, the UK's Fraud Prevention Service, and the Chartered Institute of Personnel and Development (CIPD) have launched a guide to help employers understand the growing threats associated with fraud and assist HR professionals manage the risks.

John Hinds, Policy and Projects Manager at CIFAS and co-author of the guide notes that staff fraud is a serious risk to all businesses. Ben Willmott, CIPD Employee Relations Adviser and co-author of the guide also comments that HR professionals have a fundamental role to play in combating staff fraud, and a balanced approach is required to manage the risks while maintaining employees' trust.

The guide offers advice on the nature of staff fraud, how to combat staff fraud, monitoring staff and effective policies for responding to identified staff fraud.

Post-retirement employees on the increase

A record high of 1.2 million people who have passed retirement age are still in employment, according to figures released by the Office for National Statistics.

The reported increase of 13,000 female workers aged 60 or above during October to December 2006 was wholly responsible for the figures reaching record levels.

Flexible working available for all

Beverley Hughes, the Minister for Children, has called for all workers in the UK to be given the right to work flexibly.

Writing in a new collection of essays by Labour politicians to be published in May, Ms Hughes says that all UK employees should be able to work part-time, on flexitime, from home or as part of a job share unless there is a sound business case for them not to do so.

Responding to this initiative, the CBI accepts that, so far, the right to request flexible working has worked well. However, it also considers that the impact of extending the right to "carers" (which takes effect from April this year), should be fully reviewed before further groups are added.

Go home!

Today is "Work Your Proper Hours Day". According to the TUC, 23 February is the day when the average person who does unpaid overtime finishes the unpaid days they work every year, and starts earning for themselves.

In order to celebrate this fact, the TUC states that this is the one day in the year for employees to make the most of their own time, take a proper lunch break and leave work on time to enjoy their Friday evenings...

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