Employment Law News

Employment Law News from Fresh HR Minds

By: Fresh HR Minds  23/03/2011
Keywords: employment law

 Asking prospective employees about disability or health  Employers must not ask job applicants about their health before making an offer of employment or before making a selection from a pool of applicants.  This will be unlawful under the new Equality Act 2010.  There are some exceptions such as where it is necessary to ask the question to find out if adjustments need to be made to assist the job applicant in the assessment process. Retirement will no longer be a fair reason for dismissal As the law presently stands, there is a statutory retirement procedure which allows employers to lawfully retire employees when they reach the age of 65.  Provided that employers follow the procedure, they will be protected from any complaint of unfair dismissal or age discrimination.  From 6 April 2011, it will no longer be possible to issue retirement notices.  “Retirement” will no longer be a fair reason for dismissal and an employee being retired will be able to claim age discrimination.  Extra care needed when using Compromise Agreements Employment disputes are normally resolved either under a Compromise Agreement or through an ACAS settlement agreement.  These are binding agreements which prevent the employee from bringing or continuing specified proceedings.  To have a valid Compromise Agreement, an employee must receive independent legal advice on its terms.  Because of a drafting anomaly in the new Equality Act 2010, it is arguable that a Compromise Agreement will only be valid to settle a complaint under that Act if the employee has received advice from a different adviser to the one assisting the employee with the complaint.  In other words, the employee could arguably require advice from 2 lawyers !!  Clearly, that was not what the Government intended but employers should take advice before using Compromise Agreements. Countryfile presenter wins age discrimination complaint Miriam O’Reilly was one of a number of Countryfile presenters who were replaced in order to “refresh” the line up.  This so-called “refreshment” resulted in an influx of younger presenters and Ms O’Reilly succeeded in her complaint of age discrimination.  There was no justification for this action because, although the motive of appealing to a younger audience was a legitimate aim, there was no evidence that using younger presenters was necessary in order to achieve that aim. Associative discrimination confirmed as unlawful in case involving law firm Ms Coleman worked as a legal secretary and resigned because she said that she had been subjected to unfavourable treatment due to having time off to look after her disabled son.  The EAT held that Ms Coleman was entitled to bring a complaint under the Disability Discrimination Act 1995.  Although Ms Coleman herself was not disabled, there could be discrimination by association. Always keep in mind the danger of a harassment claim under the Protection from Harassment Act 1997 Where employees are harassed because of a protected characteristic such as race, age, sex or disability, they will be able to bring a complaint under the Equality Act 2010.  There will be no ground for a complaint of harassment in the Employment Tribunal unless it is linked to a protected characteristic.  So, for example, harassment which results simply from a dislike of another individual will not be actionable as discrimination.  However, an employee who suffers such harassment may be able to bring a claim in the County Court under the 1997 Act.  The employee would need to show conduct targeted at him/her which had occurred on at least 2 occasions and the conduct must be calculated in an objective sense to cause distress and be oppressive and unreasonable.     For further information about FreshHRminds and the services we provide, please contact Graham Miles by email [email protected] or visit us at our website www.freshhrminds.com  This employment law update does not constitute a legal advice.  It is intended simply as an update and anyone needing advice about a particular employment situation should contact us or another professional adviser with full details. If you would like to recieve a brief monthly news bulletin on current employment law  Please enter your email in the box below

Keywords: employment law

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