Key issues in Employment Law over the past year
As always, 2011 has been a busy year for Employment Law. There are cases being decided all the time and new legislation being brought into force. Our aim is to keep you informed (but hopefully not overwhelm you) so you can make the best decisions for your business. This article will deal with a number of key topics that have been relevant this year and provide an overview of what we can expect next year.
We are regularly approached by clients who want to know who actually constitutes an “employee” and who is, for example, a self-employed contractor. A word of warning: just because an individual pays their own tax/national insurance does not automatically mean they are self-employed. The message is to be aware and have in place proper contractual documentation governing your relationship (whatever that may be). A Tribunal will look at what the true arrangement was between the parties and written evidence will certainly assist.
Abolition of Compulsory Retirement Age
One significant change that has impacted on employers and employees alike is the abolition of the compulsory retirement age. Since 6 April 2011 it has no longer been possible to issue to employees notification of retirement on or after their 65th birthday.
Retirement is therefore no longer a fair reason for dismissal and there is an increased risk of age discrimination claims for employers.
Agency Worker Regulations
The introduction of these Regulations in October has had a major impact on all employers who either use or provide agency workers. The Regulations provide equal working conditions (including pay and holiday) for agency workers and employees alike. For a summary of the Regulations please see our article.
You should by now have updated terms and conditions for the supply or provision of any agency workers. If you do not then this needs to be addressed.
Most of the provisions of the Equality Act came into force in October 2010. This year has seen case law on general discrimination matters. These are a couple of examples:
Eversheds Legal Services Ltd –v- De Belin 
This law firm entered into a redundancy process to make redundant some assistant solicitors. Selection criteria were drawn up and in one “pool” were a male assistant solicitor and a female solicitor on maternity leave. The firm decided not to apply one of the selection criteria to the female solicitor in case she was disadvantaged due to her absence. She was automatically awarded full marks on that criteria instead. This meant the male colleague scored the lower mark and was made redundant.
The male solicitor claimed discrimination on the grounds of sex and was successful.
Noor –v- Foreign and Commonwealth Office 
In this case the Claimant had dyslexia and dyspraxia. He applied for a job and prepared for interview based on the key competencies provided to him. One of these competencies was incorrect, meaning he was asked questions at interview about an area he had not prepared for. He was denied the opportunity of a re-interview.
The Claimant brought a claim stating that the selection exercise should be adjusted to take account of his disability. The claim was defended on the basis that his overall score was so low that even giving him time to prepare for the additional competency would not have made a difference. It was held that this was irrelevant and it may be reasonable for an adjustment to selection criteria to be made even if it would make no difference overall.
Social Media and Misconduct
This is becoming more and more of an issue. We are regularly asked by employers if they can take disciplinary action against employees for comments put on social media such as facebook.
As yet there is no reported case law however ACAS guidance has been issued which encourages employers to think very carefully about doing this. The employer must consider a number of issues, such as whether it is appropriate for them effectively to be eavesdropping on private conversations. At the very least there must be a legitimate business interest capable of protection for an employer to be able to allege misconduct. It can be done, but the employer must look realistically at the facts of each case.
This also applies to using social media to check up on people at the recruitment stage. It is becoming more common but employers must ensure that it does not lead to an inference of discrimination against the prospective employee.
Our suggestion is that employers should have a clear policy on use of social media.
Employers are often unaware of the so-called “family friendly” provisions in employment law, perhaps because it has simply not been an issue before. We have even had employers telephoning us to ask if it is acceptable to dismiss an employee because she has just notified them she is pregnant and that is not very convenient for the business. That may be the case, but employees who are pregnant are heavily protected by the law and a dismissal will be automatically unfair if it is for a reason to do with such matters as pregnancy, childbirth, maternity or parental leave. The dismissal will also be discriminatory.
A pregnant employee has the right to a total of 52 weeks Statutory Maternity Leave. Statutory Maternity Pay is payable for a total of 39 weeks. The employee is usually entitled to return to the job in which she was employed in before her absence. There are also various laws relating to notification requirements/health and safety/keeping in touch days, which we can advise you on where required.
Employers and employees should also be aware that the father of a child can now take up to 26 weeks Additional Paternity Leave in place of the mother.
We suggest that employers have policies governing not only Maternity and Paternity Leave but also Flexible Working, Time off for Dependants and Parental Leave.
If you have any queries on any matters relating to employment law or HR requirements please contact Marsha Robinson on 01245 495111.