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Article: Employment and the Law by Louise Fernandes-Owen

Louise Fernandes-Owen of Field Fisher Waterhouse LLP highlights the key recent employment law developments. 

Default retirement age – transitional provisions

The Government has now published regulations setting out the transitional provisions for phasing out the default retirement age (DRA) of 65 from 6 April 2011.

The Regulations come into force on 6 April 2011 and, unless the transitional provisions apply, retirements under the DRA procedure will no longer be valid from this date. In essence, the transitional provisions state that the current DRA procedure will continue to have effect in relation to a person if:

1. notification of retirement has been given in accordance with the Employment Equality (Age) Regulations before 6 April 2011; and

2. that person "will attain" the age of 65 (or the normal retirement age if higher) during the period that begins with 6 April 2011 and ends with 30 September 2011. 

Unfortunately, the above second condition has already caused some confusion. The effect of this condition is that an employee who is 65 by 6 April 2011 would not appear to fall within the transitional provisions as, being 65 already, they will not "attain" that age between 6 April 2011 and 30 September 2011. If such an employee has already been given notification of retirement but is then dismissed on or after 6 April 2011, the employer may therefore be exposed to age discrimination and unfair dismissal claims (unless the employer can show that the retirement is objectively justified). We will report on any clarification of this issue in future articles.

Time off for training – no extension 

The Government has confirmed that it will not extend the right to request time off for training to employees of small and medium-sized employers in April 2011. Following consultation, the Government has delayed implementation to allow "further, thorough discussion, scrutiny and evaluation".

The right for employees to request time for training has been available to employees of large organisations with 250 or more employees since April 2010. It is worth noting that the Department for Business, Innovation and Skills (BIS) has also recently published example scenarios providing guidance on how to handle requests for time for training. 

Workplace disputes reform – consultation

As part of the Government's review of employment laws, BIS and the Tribunals Service have jointly published a wide-ranging consultation, considering how to encourage the early resolution of workplace disputes. BIS has also published an "Employer's Charter", designed to give businesses more confidence to take on workers and support growth.

The key proposals set out in the consultation, which closes on 20 April 2011, are as follows:

· Encouraging earlier dispute resolution - requiring all claims to be lodged with the Advisory, Conciliation and Arbitration Service (ACAS) in the first instance to allow pre-claim conciliation to be offered. This might also include introducing settlement offers to encourage parties to make reasonable offers of settlement to avoid Tribunal hearings and encouraging parties to consider other forms of early dispute resolution such as mediation.

· Tackling weaker cases - providing the Employment Tribunals with a range of more flexible case management powers so that weaker cases can be dealt with in a way that does not mean disproportionate costs for employers. This may involve increasing the deposit and cost limits for weak and vexatious claims from £500 and £10,000 to £1,000 and £20,000 respectively.

· Fee charging - introducing fee charging mechanisms in Employment Tribunals. The Government will consult in the Spring on how best to do this once the options have been developed more fully.

· Financial penalties for employers – introducing a power for Employment Tribunals to impose financial penalties on those employers found to have breached an individual's rights.

· Qualifying periods – increasing the qualifying period for unfair dismissal from one to two years. The consultation document states that this would result in some 3,700-4,700 fewer claims going to Employment Tribunal.

Sickness absence review

The Government has commissioned an independent review of workplace sickness absence. Jointly chaired by David Frost, Director General of the British Chambers of Commerce and Dame Carol Black, National Director for Health and Work, the review will explore new ways on how the current system can be changed to help more people stay in work and reduce costs. 

Reporting later this year, the review will also: 

· explore how the current sickness absence system could be changed to help people stay in work, reduce and share costs for the taxpayer and businesses, and contribute to economic growth. 

· examine whether the balance of these costs are appropriately shared between individuals, employers and the State. 

· ensure that recommendations for change are consistent with promoting private-sector growth and minimising burdens on business - in particular small and medium-sized businesses. 

Louise Fernandes-Owen is the Senior Associate (PSL) 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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