The People Bulletin

Last year saw the implementation of most of the employment provisions of the Equality Act 2010. Three further provisions are set to be implemented in April 2011:

• A new concept of 'dual discrimination' allowing a claimant to argue that he or she has been directly discriminated against on the basis of a combination of two protected characteristics, e.g. being disabled and over the age of 50.
• An extension to the type of positive action that employers can take when recruiting.  Employers will be able to give preference at the point of selection to candidates from under-represented or disadvantaged groups in circumstances where the candidate in question is at least as suitable for the job as other candidates.
• A single equality duty on public sector employers covering all the strands of discrimination (at present, there are three separate duties covering gender, race and disability only).

See also ‘Some more equal than others’ by Michelle Gray, The People Bulletin, 29 June 2010. 

Family-friendly provisions

The government has recently reported its intention to extend the right to flexible working to all employees, stating: “We will review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both.” It was also announced that a system of flexible parental leave is due to be introduced in 2015. Consultation on these measures is expected very soon.

In the interim period, the Additional Paternity Leave Regulations 2010 will remain in force. Under the regulations, new fathers will be able to take between two weeks and six months' additional paternity leave (APL) if the mother of the child returns to work before the end of her statutory maternity leave period. The same right applies to employees whose partner (whether of the same or opposite sex) has taken adoption leave. The current two weeks' paternity leave will remain unchanged (this will be renamed “ordinary paternity leave”).The conditions for eligibility for APL will be the same as those currently in place in respect of (ordinary) paternity leave.

In addition APL will have to be taken in a single block between the time the child is 20 weeks and its first birthday. However the father's leave does not need to start immediately when his spouse/partner returns to work, and the right is to take up to 26 weeks' APL even if this extends beyond the latest date the mother's maternity leave would have ended (so long as APL ends before the child is one).

If the mother has unused statutory maternity pay when she returns to work this may be transferred to the father/partner. However, the employee can only receive statutory paternity pay during APL. Where employers grant enhanced contractual benefits to employees on maternity leave, they will need to consider whether to offer equivalent benefits to those taking APL. There is a risk that if they do not do so, this could be interpreted as sex discrimination. Staying on the subject of family-friendly rights, the right to request flexible working is to be extended in April 2011 to employees with parental responsibility for a child up to the age of 18 (at present it is up to the age of 17 unless the child is disabled, in which case it is 18). The procedure for considering requests and the reasons which employers are entitled to rely on to refuse them will remain unchanged.

Time off for study or training

The right to request time off work for study or training will be extended to businesses with more than 50 employees from April 2011. Like the right to request flexible working, the right is for an employee to request time to train, and not to be granted it on demand. Employers are not obliged to pay the employee for any time off granted, nor are they obliged to organise or pay for the study or training.

Agency Workers Regulations

The Agency Workers Regulations 2010 will give agency workers the right to equality of treatment with permanent employees if they have worked at the same organisation for 12 calendar weeks' or more.

The regulations will operate along parallel lines to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Equality of treatment will be required in respect of pay, and entitlement to working hours, rest breaks and holidays. Occupational sick pay, redundancy rights, maternity/paternity rights and access to profit-sharing and pension schemes will not be covered. Although in general, equality rights will begin after 12 weeks, certain other rights apply from day one such as equal access to on-site facilities. An agency worker who wishes to bring a complaint to tribunal will have to show that he or she would have been treated more favourably if they had been recruited directly by the client organisation. The regulations contain anti-avoidance measures that will prevent employers refusing agency workers the rights to which they are entitled by engaging them on a series of assignments, each lasting less than 12 weeks.

The primary liability for compliance will lie with employment agencies. However employers should be prepared for enquiries from agencies regarding the pay and contractual benefits they grant their staff.

Default Retirement Age

Finally, October 2011 will see the demise of the default retirement age. Employers will not be permitted to issue any new notices of retirement after 6 April 2011, and any notices issued prior to that date will have to take effect before 1 October. After this date employers will only be able to operate a compulsory retirement age if they can show, first, that there is a legitimate aim underpinning their policy and, second, that retiring employees at the chosen age is proportionate to the achievement of that aim. Otherwise, where an employer wishes to terminate the employment of an older employee, it will have to have a different potentially fair reason for doing so. Employers will also have to follow a fair dismissal procedure in respect of the stated reason.

The provision that currently permits employers to turn down job applicants who are aged 64½ or over is also likely to be repealed in line with the removal of the default retirement age. After October 2011, any refusal to employ a suitably qualified job applicant who is aged 65 or over for reasons related to his or her age will have to be objectively justified. Other issues that may have to be addressed include the continuation (in respect of employees over the age of 65) of contractual benefits such as life insurance. Denying these benefits to older employees would amount to age discrimination. A key point here is that the courts, to date, have tended to rule that cost alone is not acceptable as justification for operating a discriminatory policy or practice.

See also ‘Too old for what?’ by David Ogilvy in The People Bulletin, 12 January 2011

Legislation timetable