Article
One: Employment and the Law - Recent Developments by
Louise Fernandes-Owen
Heyday - ECJ hearing date
The European Court of Justice (ECJ)
is provisionally set to hand down its judgment in the Heyday case on
5 March 2009.
Over the past couple of years, we
have reported on the well-publicised developments in this case which
challenges, amongst other issues, the mandatory retirement age of 65
under the Employment Equality (Age) Regulations 2006.
The Advocate General delivered
his Opinion on the case last year, stating that a rule which permits
employers to dismiss employees aged 65 or over for retirement can,
in principle, be justified - if the rule is objectively and
reasonably justified in the context of national law by a legitimate
aim relating to employment policy and the labour market, and it is
not apparent that the means to achieve that aim of public interest
are inappropriate and unnecessary for that purposes.
The Advocate General's Opinion
was a disappointment for those involved in the Heyday challenge. The
ECJ usually, but not always, follows the Advocate General's Opinion.
If the ECJ does agree with the Advocate General in March, it will be
for the High Court to consider whether the mandatory retirement
provision is in fact objectively justified.
European Commission: opt-out
should stay
The European Commission has
provided its Opinion on proposals to amend the Working Time
Directive, significantly rejecting the European Parliament's
proposal last year to remove the opt-out from the 48 hour limit on
the working week. The Opinion, also covering a range of other
issues, is intended to help the European Council and Parliament
reach agreement on the final text.
The Commission's Opinion states
that it is, in principle, supportive of the eventual phasing out of
the opt-out, but does not consider that present conditions allow for
this. It therefore considers that the opt-out should be retained,
but subject to review. The Commission also rejected a proposal to
restrict the validity of opt-outs to six months. However, the
proposals that there should be no opt out during any probationary
period nor any upper limits on working time for workers who agree to
opt out were accepted by the Commission.
The European Council now has a
further three months to carry out its second reading, so watch this
space for further developments.
Redundancy pay to rise?
It has recently been reported
that ministers have launched a review of the minimum statutory
redundancy payment, in light of the current economic climate.
Since the statutory redundancy
pay scheme was introduced in 1965, the maximum limit has decreased
from 203% of average weekly earnings to just 56%. The maximum limit
on a week's pay, used to calculate statutory redundancy payments,
increased to £350 on 1 February 2009, with the maximum amount of a
statutory redundancy payment rising to £10,500.
Campaigners, including MPs and
unions, have called for a rise in redundancy payments, urging the
Government to raise the current weekly limit to £500. Other
suggestions include lowering the qualifying period for redundancy
payments from two years to one and raising the tax-free limit for
termination payments from £30,000 to £50,000.
Guidance on rights of agency
workers
The Department of Business,
Enterprise and Regulatory Reform (BERR) has published a leaflet
outlining the basic rights of agency workers.
The leaflet covers:
· the difference between an employment agency and employment
business
· what agencies can and cannot do
· other rights of agency workers (e.g. relating to annual leave,
the national minimum wage and discrimination legislation)
New rates for statutory sick
pay and maternity, paternity and adoption pay
The revised weekly rates of
statutory sick pay and statutory maternity, paternity and adoption
pay have been published recently in a draft statutory
instrument.
The draft statutory instrument
states that from 6 April 2009 the weekly rate of statutory sick pay
will increase from £75.40 to £79.15. The prescribed weekly rate of
statutory maternity, paternity and adoption pay will increase from
£117.18 to £123.06.
Louise Fernandes-Owen is the
Professional Support Lawyer in the Employment and Pensions Group at Field
Fisher Waterhouse LLP and can be contacted at louise.fernandes-owen@ffw.com
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