Employers Update - January 2011
Welcome to the first Employ!
edition for 2011.
Taylors Solicitors will continue to
keep you up dated on relevant
developments on HR and employment
law during what is likely to be a
challenging year for many.
We would like to wish you all the
best for 2011 and if you want to
meet to discuss or plan your
requirements for 2011, particularly
with the removal of the default
retirement age this year, our team
would be only too happy to assist.
It is best practice to review your
employment policies, practices and
procedures at least annually.
If you have any queries or wish to
have a chat about Taylors Employment
Services please contact Oliver
McCann on 0844 8000 263
Oliver McCann - Partner and
Head of Employment
- Employment Solicitor
Tel: 0844 8000 263
This is likely to be the hot topic of
2011 and it will be interesting to see how
differently the abolishment of the default
retirement age will be approached by the
different sectors and industries.
The government confirmed earlier this
month, as expected, that the default
retirement age will be phased out completely
from 6th April 2011 with complete abolition
on 1st October 2011. There is a useful ACAS
flowchart showing the transitional
at this link.
In a nutshell if you have an employee who
reaches 65 before 30 September 2011 then you
can retire that individual but you can only
do so in line with current legislation up to
5th April 2011. However after the 30th March
2011 you will be relying on the short notice
retirement provisions under current
legislation which carry with it some risk of
claims being brought.
What do I need to know?
ACAS has published a useful
Once abolished the options available to an
- Set up your own contractual
retirement age – this must however be
objectively justified and will be known
as Employer Justified Retirement Age.
Any such contractual retirement
agreement should only be put in place
after extensive discussions with a
recognised trade union or employee
representative and based upon solid
information to support the imposition of
the retirement age.
- Proceed without a defined
contractual retirement age and work on a
case by case basis. Any retirement will
still have to objectively justified but
such a process opens up the risk of
challenges that other employees are
being treated more or less favourably
and could result in other discrimination
claims due to a lack of a consistent
- Proceed on the basis that retirement
is too high risk now and the focus needs
to be on performance and capability
management dismissals– however, again,
care needs to be taken not to
deliberately target an older worker and
treat them less favourable than younger
workers who maybe just as incapable or
performing just as bad otherwise an age
discrimination claim will follow.
Employers need to ensure that they, or
their management staff, do not give
instructions to staff to engage in unlawful
A recent case involved the employer
transforming a former gay pub into a gastro
pub. As part and parcel of the rebranding
exercise the employee was instructed to
display a board outside the pub openly
stating it was no longer a gay pub and also
seating customers who did not appear to be
gay in prominent positions.
It was held that this less favourable
treatment of third parties on grounds of
their sexual orientation (actual or
perceived) amounted to less favourable
treatment of the employee as well who was
therefore entitled to compensation.
What do I need to know?
The case clearly sets out the principle
to be taken on board but reiterates the
importance of putting in place a detailed
equal opportunities policy which is easily
understood by all staff and which management
buy into. Critical to avoiding matters of
this nature is rolling out a programme of
training on your equal opportunities
policies across the board and ensuring that
line management are empowered to enforce its
A recent case has set out some
guidelines as to when an employee receiving
IVF treatment becomes protected from less
favourable treatment and when it gains the
same protection as a natural pregnancy.
It was held that a woman undergoing IVF
treatment is regarded as pregnant from the
period of implantation of a the fertilised
ova until the end of compulsory or statutory
maternity leave (ordinary or additional) or
when the employee returns to work, which
ever is the earlier.
In the period before implantation it may
constitute sex discrimination to treat a
woman less favourably because she is
receiving IVF treatment but limited to a
defined period i.e. between follicular
puncture and the immediate transfer of the
in vitro fertilised ova in to the uterus.
What do I need to know?
Take care on how you treat an employee
who is undergoing IVF treatment. Usually it
will be difficult to know exactly what stage
of the IVF process the employee is at – they
are not obliged to tell you this
information. As such, although there is the
“defined period” of protection as set out in
this case, often it will be difficult to
determine when the period has in fact
started. As such, best practice would be to
treat those receiving IVF treatment, with
care and if they are seeking some kind of
special treatment or leave to sit down with
the employee and understand where in the
process they are.
Bribery is the offer or acceptance of
a reward to persuade someone to act
dishonestly and/or in breach of the law.
This can be an expensive business and
companies have faced fines in excess of
£100m as a result.
What do I need to know?
The Act provides for four bribery
- Bribing – the offering, promising or
giving of an advantage.
- Being bribed – requesting, agreeing
to receive or accepting an advantage.
- Bribing a foreign public official.
- The "corporate offence", where a
commercial organisation fails to
prevent persons performing services on
its behalf from committing bribery.
The new corporate offence will be
of most interest to employers. A company
will be guilty of this offence if a person
who performs services on behalf of the
organisation (an employee, worker or
consultant) bribes another person, intending
either to obtain or retain business for the
company, or to obtain or retain an advantage
in the conduct of the company's business.
The offence can be committed in the UK or
overseas. If a company is found guilty of
corporate bribery, both the company and its
directors could be subject to criminal
sanctions, including significant fines and
an increase from 7 to 10 years imprisonment.
The Government has confirmed that the
Bribery Act 2010, set to come into force
this April, will be reviewed but it is
expected only minor changes will be made.
The government will be publishing
guidance to help organisations put practical
measures in place to prevent bribery and
mitigate their exposure of a prosecution.
A company can escape liability if it can
show that it had in place "adequate
procedures" designed to prevent those
persons performing services on its behalf
from committing bribery.
As such, if it is proved that a bribe was
paid on a company's behalf with the
intention to obtain or retain business for
the company, an offence will have been
committed for which the company will be
liable, subject to the "adequate procedures"
What constitutes adequate procedures to
prevent bribery is the key question but the
answer is not currently clear and expected
guidance is due from the government soon "about
the procedures that relevant commercial
organisations can or are expected to put in
place to prevent persons associated with
them from bribing.
It is likely that organisations will have
to promote and develop an anti corruption
programme and culture, establish a clear
code of conduct together with a gifts
policy. There may need to be express clauses
inserted in to contract of employment and
training given across the organisation.
There should always be adequate financial
controls in place and a whistle blowing
policy to aid disclosures of corruption to
1. When can you commence without
prejudice discussions with an employee
during a redundancy process?
Without prejudice discussions can protect
you from that employee later using what is
said in evidence. But to gain protection
under the without prejudice rule there has
to be a dispute which you are making
genuine attempts at settling by having the
“without prejudice” discussion. Such a
conversation should be left until you have
at least identified a particular employee
who will be made redundant after a full
consultation and/ or selection matrix.
However to commence discussions early
suggests a lack of confidence in your
process and will arouse suspicion. Better at
the decision stage to put forward, in a
separate letter, an offer to pay an ex gratia sum, purely in recognition of service
and as a gesture of goodwill, but only on
the condition they sign a compromise
2. We have a cleaner that we employ
who starts at 4.30 every evening and works
till 6.30. She has worked for us for a
number of years but this situation is not
working. Our business is open till 5.30 and
so she is cleaning around clients and other
third parties which is not conveying a
professional look. She claims she cannot
work later than currently is the case and
nor can she work early in the morning due to
childcare and other work commitments what
are my options?
You can do one of two things:
- You can enter into consultation with
her about changing her hours as the
business requirements are such that the
current working arrangements are no
longer viable. You need to understand
whether contractually you can alter her
hours of work or whether by changing the
hours, if she refuses to agree, you
maybe in breach of contract. Worse case
scenario is she refuses to agree, there
is no contractual right to vary the
hours and you need to terminate her
employment on grounds of the needs of
the business. There is of course a risk
of unfair dismissal and possible
indirect sex discrimination, but the
level of her earnings maybe such it is a
risk worth taking. Critical to any
process is meaningful consultation.
- A second alternative would be to
outsource the cleaning duties to a
cleaning contractor. There would be TUPE
issues which arise but you could
stipulate to the contractor that you did
not want anyone starting before 5.30.
You would however, in the process of
outsourcing the service, have to provide
them with the details of the employee
and her terms and conditions. It would
then be up to the contractor to
determine if they wished to take on the
problem relating to the employees
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