The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006 driven by European Directive. The Regulations make all retirement ages under the age of 65 illegal unless objectively justified.

Heyday, an organisation for people in or nearing retirement, has challenged the Government over the inclusion of the mandatory retirement age on the grounds that this means that the Regulations do not fully implement the European Directive. The organisation wants the legislation amended to give workers over 65 the same protection from discrimination as younger workers. In order to settle this key issue, the matter has been referred to the European Court of Justice (ECJ).

There are many workers who wish to continue working after the age of 65, so the ECJ’s ruling on the Heyday organisation challenge to the age discrimination legislation is awaited by both employees and employers with interest.

Confusion on internet use in the workplace

There are many ways in which a business can be damaged if it fails to protect its data or does not have policies in place to ensure correct use of the internet at work. However, a recent survey has revealed that UK businesses are failing to take seriously the need to protect themselves and their employees from potentially damaging internet use in the office.

More than 30% of employers taking part said that they do not have an Acceptable Use Policy for accessing the internet at work. Of those who do, 94% said that they had not read it recently. Only a small percentage of Acceptable Use Policies cover instant messaging and web mail. Furthermore, “blogging” hardly registers at all as a banned internet activity.

It is important to have an internet use policy in place and to make sure that employees understand and adhere to it. The policy should be updated to reflect current trends and make clear the penalties for failing to abide by it.

Expired disciplinary warnings

A further case has illustrated that employers cannot place reliance on a disciplinary warning that has expired, either in disciplinary proceedings or to justify a dismissal at Tribunal.

In Airbus UK Limited v Webb, the Employment Appeal Tribunal (EAT) has ruled that an Employment Tribunal is “obliged, and not merely entitled, to ignore expired warnings”.

Mr Webb worked for Airbus as an aircraft fitter. In July 2004, he was dismissed for gross misconduct after he was found washing his car when he should have been working. He appealed against the decision to dismiss him and the disciplinary action was reduced to the lesser sanction of a final written warning which would remain on the record for 12 months.

Three weeks after the written warning expired, Mr Webb and four other employees were caught in the locker area, watching television, outside their normal break time. All five were found guilty of gross misconduct. Mr Webb was dismissed, but the other four employees received final warnings because they had no prior disciplinary record. Mr Webb’s dismissal, based on his expired warning, was found to be potentially unfair.

The EAT did, however, suggest that although the ACAS Code of Practice on Discipline and Grievance Procedures suggests that final warnings should normally expire after 12 months, this need not always be the case. A longer time limit might be appropriate if the nature of the misconduct justifies it.

It is important to ensure that the time limit for a disciplinary warning fits the particular circumstances and that your policies and procedures allow you to issue an extended warning where this is deemed necessary.

Without prejudice discussions

The question of when “without prejudice” discussions between an employer and employee truly are without prejudice is a matter which has troubled the Courts over the years. A recent case in the Court of Appeal has provided some much needed clarity. In Framlington Group v Barneston, the Claimant was a senior executive who held negotiations to agree the terms of an early departure with his employer. The Court of Appeal, overturning an earlier judicial decision, held that the discussions were covered by the “without prejudice” rule, emphasising the desirability of allowing parties to attempt to settle prospective litigation. The Court declared that the “crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree”.

It should be noted that in a case where there is no real risk of termination (and therefore an employment claim flowing from the termination) that it is unlikely that communications will fall under the “without prejudice” rule.

Extra annual holidays

The Government has published the Working Time (Amendment) Regulations 2007, which will increase the minimum annual holiday entitlement from 20 days a year to 28 days. This will be accomplished in two stages, being increased to 24 days from October 2007 and to 28 days from April 2009, not October 2008, as was originally planned.

As a transitional measure, payment in lieu of the additional holiday entitlement (the additional 8 days) will be allowed to continue until 1 April 2009. This is a temporary measure intended to help employers to implement the new arrangement.

In order to provide an incentive for early compliance with the Regulations, employers that already meet the requirements of the Regulations as at 1 October 2007 will be regarded as being outside of the Regulations, as long as they continue to meet those requirements.

It is estimated that the measure will benefit up to 3.5 million women and 2.5 million men. Part-time workers will be entitled to extra holidays pro-rata. It should be noted that the minimum annual holiday entitlement will include bank holidays, and it is therefore still permissible to provide 20 days annual leave together with the normal 8 bank holidays.

Statutory paternity leave

The DTI has issued a further consultation paper on the implementation of statutory paternity pay and leave, which it intends to implement in two years’ time.

The proposed scheme will operate so as to allow mothers to pass some of their statutory maternity leave and pay to fathers, if they want to return to work during their maternity leave. It is proposed that fathers will “self certify” that their child’s mother is returning to work early and passing maternity entitlements to them. The father will be required to give his employer eight weeks notice prior to taking the leave.

ACAS has updated its website with updated guides on the following topics:

• Maternity
• Annual leave
• Sexual orientation discrimination

The guides are available on www.acas.org.uk

Derby Directors' Forum - Restricting Competition from Employees

Your employees are the biggest risk to your business. Without proper contractual restrictions, an employee can set up business next door to you and take your customers, employees and suppliers with them. Could your business afford for this to happen. Are your current restrictions sufficient and would they be enforceable?

James Johnson, Head of the Smith Partnership Employment Law Team, will be conducting a discussion on the types of restrictions which can be put into place to assist with the prevention and management of competition from your employees, both in employment and after employment has ended.

If you would wish to attend, please contact marketing@smithpartnership.co.uk

Thursday 4 October 2007- 8am - 9.30am
The Midland Hotel, Midland Road, Derby