Out with the old - in with the new?
Alexandra Besnard, Solicitor at Sharon Langridge Employment
Lawyers discusses the key legislative changes of 2010 and provides
an update on the proposed changes of 2011.
For many businesses 2010 was another challenging year, but
whilst 2011 may bring its own challenges, it may be useful to
summarise some of the main legislative changes of 2010 and talk
about some of the planned changes for 2011, so that you can prepare
your business.
Last year employment law was dominated by the introduction of
the Equality Act 2010, which had the role of
consolidating all discrimination laws in one single act. It is
however likely to bring its own difficulties as it has introduced
some new concepts, including a new definition of direct
discrimination which includes claims for associative discrimination
(where an individual is treated less favourably because s/he
associates with a person who has any of the protected
characteristics listed in the Equality Act) and discrimination
based on perception (where someone is less favourably treated
because s/he is wrongly perceived to have a particular
characteristic).
2010 also saw some significant changes in relation to family
friendly legislation. The introduction of the Additional
Paternity Leave Regulations will give eligible employees
(usually fathers) who will become parents on or after 3 April 2011,
the right to take up to six months' leave (in some cases paid) to
care for their child who is 20 weeks or over, if the mother returns
to work without exercising her full entitlement to maternity leave.
It is clear that this change will be welcomed by many parents
(those fathers who want to play a more active role in the
upbringing of their children or families where the mother earns
more than the father) but it is also likely to create some
practical problems for employers, who will have to deal with this
new situation.
Whilst this legislation was introduced by the Labour Party, Mr
Clegg has just announced that he is planning to go further in 2011.
As part of his proposal, which could become law in 2011, the mother
would automatically get the first 6 weeks off, but after this, the
parents will be able to choose how they want to divide the
remaining period of parental leave. This attempt to move away from
typical gender roles may be laudable, but it could cause some
significant problems in practice. Whilst employers are used to
their female employees taking time off to care for their children,
are we going to witness situations whereby men who decide to put
their career on hold to take some parental leave suffer from the
same stigmatisation and miss out on promotion when they eventually
return to work? Only time will tell but it will be interesting to
see how the situation evolves.
The introduction of new fit notes which was the
subject of one of our previous articles was also a hot topic in
2010. Initial feedback seems to indicate that the new fit notes
have created more problems than they have solved, perhaps because
GPs find it difficult to know what adjustments they can suggest to
an employee's role, if the employee feels unable to return to work
or suggest adjustments. A review by the DWP is currently underway,
so some feedback on the impact of the 'fit notes' may be published
in the next few months and the system further reviewed.
As for 2011, it is likely that the Equality Act will remain at
the forefront of the government's agenda with more provisions of
the Act due to come into force, including the single public sector
equality duty and positive action in recruitment and
promotion due to come in April 2011. This will give
employers the option where they have two or more candidates of
equal merit to select one from a group that is under represented in
its workforce. It is however unlikely that the Government will
introduce the mandatory pay audits which was contained in the
Labour Government's legislation, preferring instead to encourage a
voluntary approach, at least initially.
The final and important piece of employment legislation is the
abolition of the default retirement age which will
be phased out from 6 April 2011 and completely abolished on 1
October 2011. This effectively means that if you had amended your
office manual and introduced a procedure allowing you to
automatically 'retire' an employee age 65 or over, this policy will
become unlawful come 1 October 2011. Retirement will no longer be a
fair reason for dismissal. Should you therefore wish to retire an
older employee, you will have to apply the same test of
reasonableness as if you wanted to dismiss any other employee on
grounds of capability or performance and/or satisfy the standard
test of objective justification for direct age discrimination, i.e.
the pursuit of a legitimate aim in a proportionate manner. As this
is likely to cause some issues in the future, we will cover this
subject in more detail in a future edition of Anecdote. Meanwhile,
you may wish to review your policies and manual with these
important changes in mind.
This little note should give you the heads up on what will come
in the next few months and hopefully despite the cuts in public
spending, your business will remain strong and equipped to face the
challenges 2011 may bring.
Alexandra Besnard, Solicitor
Sharon Langridge Employment Lawyers
www.sharonlangridge.co.uk
