Field Fisher Waterhouse

increases in the national minimum wage rates

These were highlighted in our last update on 22 September. If you missed this update, or need a reminder about the above changes, please click here.

Government going to High Court over mandatory retirement age

Following an application for judicial review of the Employment Equality (Age) Regulations 2006 earlier this year, there will now be a High Court hearing on the matter on 6 December 2006.

Heyday, a membership organisation for people who are approaching retirement, applied for judicial review of the Regulations on the basis that the decision to permit mandatory retirement ages would allow employers to force workers into retirement.

A High Court judge has ordered that the judicial review should be decided by way of a 'rolled up' hearing. This will enable the judge to consider the application for permission for the case to proceed at an oral hearing. If the application is successful, the case will then proceed to a full trial.

Click here to read more about Heyday's legal challenge.

Age discrimination - busting the myths

Notwithstanding the challenge from Heyday, most employers will be aware that age discrimination hasn't been far from the headlines in recent months. In light of some confusion about the scope of the new legislation, the TUC has put together a short mythbuster to highlight some of the most common misconceptions about age discrimination.

Click here to access the mythbuster.

Beat the bullies...

Amicus and the DTI have announced the findings from what is described as the world's largest anti-bullying project.

In a poll conducted by Amicus as part of the project, it was found that only 2% of employers took a zero tolerance approach to bullying, with 97% never having quantified the impact of bullying. Despite the fact that 80% of organisations have an anti-bullying policy in place, more than half of those polled still think bullying is an issue in their organisation.

Click here for further information.

...or pay the price

Green v DB Group Services (UK) Ltd is a stark reminder for employers that bullying and harassment in the workplace not only attracts adverse publicity but also proves costly if not adequately addressed. The employee in this case was awarded over £800,000. The employer was also ordered to pay her legal costs, raising her total award to over £1 million.

The employee had been subjected to harassment and bullying by fellow employees over a sustained period. She had disclosed to her employer on starting employment that she had suffered from depression in the past and, following the bullying campaign at work, she suffered two mental breakdowns.

Her employer was found vicariously liable in negligence for the acts of bullying which resulted in psychiatric injury, and was also held to be vicariously liable under the Protection from Harassment Act 1997. The employer failed to take adequate steps to protect the employee and was held to be directly liable in negligence for her psychiatric injury.

The Court was critical of the employer's failures. Bullying was a long-standing problem in the department and line managers knew or ought to have known what was going on. However, they were held to have collectively closed their eyes to the problem. Obvious steps could have been taken to stop the bullying, such as clarifying that such behaviour was unacceptable and that disciplinary action would follow if the behaviour persisted.

Bullying and harassment claims are on the increase and there is no doubt that this decision is important for employers. Getting it wrong can lead to substantial awards and it is therefore vital that all bullying and harassment issues are addressed at the earliest opportunity, to limit exposure to such claims.

Cancer in the workplace

The Disability Rights Commission (DRC) has released a survey revealing that employees with cancer are receiving unfair treatment from employers.

Due to changes brought into force in December 2005, employees who have cancer are now deemed to have a disability from the point of diagnosis, entitling them to protection under disability discrimination legislation. However, figures from the DRC's helpline show that employers are failing to make reasonable adjustments for cancer sufferers and many are facing disciplinary action or dismissal.

Click here to access further information about the DRC's survey.

Equal pay and length of service

The ECJ, in Cadman v Health and Safety Executive, has clarified that where an employer relies on length of service to determine pay, it does not need to provide specific justification for using this as a criterion, even if it gives rise to a disparity in pay between men and women.

However, if a worker can provide evidence which casts serious doubt on whether length of service is an appropriate criterion to reward experience for the job in question, the employer will be required to provide such justification.

This case does not deal with the issue of pay rising with length of service and whether that might constitute age discrimination: no doubt an issue for the future!

Enhanced redundancy payment provisions in staff handbooks

In a judgment that is likely to impact the drafting of many staff handbooks, the Court of Appeal has held that an enhanced redundancy provision contained in a staff handbook can be incorporated into an employee's contract of employment, entitling the employee to bring a breach of contract claim.

In Keeley v Fosroc International Ltd, the enhanced redundancy payment provision was included in the "employee benefits and rights" part of the staff handbook. The Court considered that provision for redundancy, irrespective of statutory redundancy entitlement, is a widely accepted feature of an employee's remuneration package and is therefore apt for incorporation into a contract. The enhanced redundancy provision was framed in terms of an entitlement having contractual effect, supported by other sections of the handbook, and was to be treated differently from procedural, aspirational or discretionary matters.

This judgment is clearly relevant to enhanced redundancy payment provisions in staff handbooks, but may well extend to other provisions which employers wish to remain non-contractual. In light of the Court of Appeal's decision, it is important that employers review their staff handbooks to avoid, where possible, employees claiming such provisions have any contractual effect, where this was not the employer's intention. Of particular concern are disciplinary procedures. If these are contractual, an employee may be able to insist that the procedure is followed to the letter prior to any dismissal. This would restrict an employer's freedom to short cut the procedure in appropriate circumstances and could lead, for example, to employees with less than 1 year's service dragging out a disciplinary procedure over the 1 year minimum service requirement for claiming unfair dismissal.

Work-life balance - is it possible?

Well, now's your chance to give your opinion. The Work Life Balance Centre, together with selected universities, is conducting its annual 24-7 survey in an attempt to discover more about modern working practices and to chart the trends and patterns of working life.

The survey covers a range of topics, looking at health, lifestyle, national policy and legislation, and is aimed at highlighting examples of both good and bad practice in the workplace.

Click here to access the confidential survey, which is available until mid-November for completion.

It's that time of year again...

There's no mistaking the change in the weather - Autumn has most definitely arrived.

The good news is so has our Autumn issue of People. Click here for our review of recent cases and legislative developments, covering age discrimination, family-friendly legislation, harassment and sickness and disability issues.

Subscribe now!

If you have received this update from a colleague and wish to receive it yourself on a fortnightly basis, just click here to subscribe.