UK: Age Discrimination Still Rife In UK Workplaces (Employment Bulletin - March 2008)

Last Updated: 2 April 2008
Article by Michael Delaney

A survey conducted by Axa has found that age discrimination is occurring on a regular basis in UK workplaces, with many employees still being pressured into early retirement.

The survey revealed that a fifth of respondents had experienced pressure from their employer to retire before the retirement age of 65.

Employers must be aware that UK legislation makes it unlawful for them to discriminate against workers on the grounds of age. By coercing employees into early retirement, employers are at risk of facing a claim for age discrimination.

Minimum Wage Increase Announced

The Government has announced annual increases to the national minimum wage.

The adult minimum wage rate will rise from £5.52 to £5.73; the rate for 18-21 year olds will rise from £4.60 to £4.77; and the rate for 16-17 year olds will rise from £3.40 to £3.53.

All increases will take effect on 1st October 2008.

Employers Fear Disciplining Staff

A new survey of employers has found that nearly half of small and medium-sized firms (SMEs) are afraid to discipline staff in case they are taken to an employment tribunal for unfair dismissal.

The survey showed that many SMEs believe that employment law is weighted in favour of employees. Although around 90 per cent of respondents admitted that they would discipline their staff if they were more legally confident, 80 per cent still feared being taken to expensive employment tribunal hearings.

Whilst their fears are understandable, employers should not be afraid of using disciplinary and grievance procedures, provided that they have a clearly defined, fair, disciplinary and grievance policy that is compliant with current employment legislation. It is also advisable for employers to produce a clear job description for each member of staff and to re-iterate the standards and behaviour expected in the workplace.

Rise In Statutory Maternity Pay And Statutory Sick Pay

The Social Security Benefits Up-rating Order 2008 has been laid before Parliament.

From 6th April 2008, statutory maternity pay will increase from £112.75 per week to £117.18, and statutory sick pay will increase from £72.55 per week to £75.40.

New Penalties For Employing Illegal Migrant Workers

Two new offences under the Immigration, Asylum and Nationality Act 2006 came into force on 29 February 2008.

  1. An employer that negligently hires an illegal worker will commit a civil offence and be liable to a fine of up to £10,000 unless certain documents were checked before employing the individual.
  2. An employer that knowingly hires an illegal worker will commit a criminal offence and will be liable to a custodial sentence of up to two years and/or an unlimited fine.

Temporary And Agency Workers (Equal Treatment) Bill

The Temporary and Agency Workers (Equal Treatment) Bill was passed at its second reading (with 147 MPs voting in favour and 11 against.)

This trade-union backed Private Member's Bill seeks to outlaw discrimination against agency workers and aims to implement the principle of "equal treatment", so that it applies to temporary and agency workers.

The Bill does not have the support of the Government and has therefore little chance of becoming law. However, the Prime Minister has offered to set up an independent commission to consider the protections given to agency workers.

Employers Can Take Into Account Expired Warnings When Deciding Whether To Dismiss An Employee

In Airbus UK Ltd v Webb, the Court of Appeal has overturned employment tribunal and Employment Appeal Tribunal (EAT) decisions that an employee was unfairly dismissed because the employer had taken into account an expired warning in its decision to dismiss.

Mr Webb was employed as an aircraft fitter. In July 2004, he was dismissed for gross misconduct (washing his car when he should have been working). On appeal, however, a final written warning was imposed. The warning was to remain on his personal file for 12 months, until the end of August 2005. He was then sent a letter when he was reinstated, which informed him that further misconduct was likely to lead to dismissal.

On 20 September 2005, three weeks after the expiry of his final written warning, Mr Webb and some of his colleagues were discovered watching television, again when he should have been working. Airbus held a disciplinary hearing and Mr Webb was subsequently dismissed for gross misconduct. His colleagues, however, were not dismissed, as they had no prior disciplinary record.

Mr Webb brought an employment tribunal claim for unfair dismissal, successfully arguing that Airbus had acted unfairly in taking into account the expired final warning. Airbus appealed to the EAT, but this was rejected.

In what is an important decision for employers, the Court of Appeal has now overturned these decisions. It ruled that while it is unreasonable for an employer to rely on an expired warning as the principal reason for dismissal, it is not unreasonable for an employer to take into account a previous expired warning and the underlying misconduct in circumstances where these are not the principal reason for the dismissal. In this instance, the misconduct in itself justified the dismissal.

Homophobic Banter Cannot Be Harassment If The Employee Is Known To Be Heterosexual

The Employment Appeal Tribunal (EAT) has ruled that homophobic banter directed at an employee who was not homosexual, and who his "tormentors" knew was not gay, does not amount to sexual orientation discrimination.

In English v Thomas Sanderson Blinds Ltd, Mr English launched a claim at an employment tribunal, complaining that he had been harassed contrary to the Sexual Orientation Regulations. He claimed that colleagues had tormented him with sexual innuendo, implying he was homosexual on the basis that he had attended boarding school and lived in Brighton.

The EAT rejected his claim, ruling that while his colleagues may have perceived him to have homosexual characteristics, they did not actually perceive him to be homosexual, and Mr English fully accepted that that was the position. Thus, the unwanted conduct was not on grounds of sexual orientation.

However, the EAT has given permission for leave to appeal to the Court of Appeal on grounds that, in its view, the Employment Equality (Sexual Orientation) Regulations 2004 do not properly implement the European Equal Treatment Framework Directive, as the definition of "harassment"" under the Regulations is narrower than that under the Directive. If the Regulations are amended, and similar changes are made to other discrimination legislation, the effect could be far reaching, as similar individuals who are not the subject of discrimination, but rather teasing, may be able to bring claims.

Widow Wins Compensation Over Husband's Work-Related Suicide

In Corr v IBC Vehicles Ltd, the House of Lords has ruled that the widow of a man who killed himself six years after an industrial accident should be compensated by his former employer.

Mr Corr was seriously injured at work due to his employer's negligence in 1996. He had no history of psychiatric illness, but suffered from post-traumatic stress disorder following the accident. Six years later he became severely depressed and committed suicide. His widow brought a successful claim against the employer under the Fatal Accidents Act, convincing the court that the accident had caused the stress disorder that led to Mr Corr's depression and subsequent suicide.

Employment Retention Bill Published

The Employment Retention Bill – a Private Member's bill which would create a statutory right to rehabilitation leave (disability leave) for newly disabled people and people whose existing impairments change - has been published and will have its second reading in the House of Commons on 14 March 2008.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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