The default retirement age is soon to be a thing of the past. The last date on which notice of retirement could be given to retire employees whose 65th birthday falls before October this year was 5 April 2011. An employer will now need to objectively justify any compulsory retirements to avoid claims of age discrimination and unfair dismissal. Having navigated their way through the tricky transitional provisions, businesses must now decide whether to retain a fixed retirement age (in which case they would need to show that it meets a real business need and that there is no other less discriminatory way to achieve that need) or remove fixed retirement ages altogether and rely on other potentially fair reasons for dismissal (which no longer include retirement).
Tribunal shake up
The government has, at last, decided to review the way in which employment tribunals operate. For some time, lawyers and employers alike have been frustrated at the inefficiencies in the system, which have led to excessively costly and time-consuming litigation, and made it too easy for employees to make unmerited claims. The government's consultation for reform is due to conclude on 20 April 2011. The proposals include:
- increasing the qualifying period for bringing unfair dismissal claims from one year to two years;
- increasing the powers of tribunals to tackle weak and vexatious claims through more flexible deposit orders and increased costs limits;
- measures to shorten tribunal hearings, including reducing the time for witness evidence and making more efficient use of the tribunal's resources;
- measures to encourage early conciliation and settlements;
- further consultation on proposed fee charging for bringing a claim or counterclaim; and
- the introduction of financial penalties for employers found to be in breach of their employment obligations.
Agency workers
From October 2011 temps will be given far greater rights, including rights to access to the same on-site facilities and amenities as permanent employees of the hirer and the right to be informed of permanent job opportunities at the hirer. After completing a 12-week qualifying period, temps will also have the right to the same basic working and employment conditions as are ordinarily included in the contracts of comparable workers recruited directly by the hirer.
Additional Paternity Leave
Fathers of babies due on or after 3 April 2011 will be entitled to take additional paternity leave (APL). There is no free-standing right to APL, and it will only occur if the mother with a right to maternity leave wishes to return to work prior to the end of her maternity leave entitlement and transfer some of her cover to the father. In these cases, the right is for a maximum of 26 weeks' APL, to be taken in a single block. Whether this period is paid depends on the underlying entitlements of the maternity leave. There are detailed notification requirements and businesses should revise their family-friendly policies to take account of these significant changes.
Bribery Act 2010
The long-awaited guidance on the Bribery Act 2010 has been published and it will now come into force on 1 July 2011.
Cutting red tape
As part of the government's 'Plan for Growth', which was announced with this year's budget, the right to request time off to train will not be extended to employers with fewer than 250 employees, and the extension of the right to request flexible working (to cover parents of children aged under 18), which was due to come into force on 6 April 2011, will now not go ahead. The right to request flexible working will therefore continue to apply only to parents of children aged under 17 and disabled children under 18, and to carers of certain adults. The provisions on dual discrimination in the Equality Act 2010, which were set to create a new type of unlawful discrimination, will not come into force, and the government will consult on removing the duty on employers to take reasonable steps to prevent harassment of workers by third parties.
By Helen Croft, legal director, and Jennifer Millins, associate, Mishcon de Reya.
E-mail: helen.croft@mishcon.com; jennifer.millins@mishcon.com.
