Employment update

Default retirement age

October heralds new employment laws. This one is no exception, with the coming into force of the Agency Workers Regulations (AWR) and the final fading out of the default retirement age.

The latter means that employer-led retirement is now unlawful unless it can be justified as a proportionate means of achieving a legitimate aim. And if employers want to consider having an employer-justified retirement age it is clear that they need to do some planning about the aim and the impact, as well as probably consulting with their staff and trade unions to be able to test their assumptions and introduce a retirement policy where reasonable. It is no good waiting until the first case; the planning and thinking needs to be prospective if it is to happen at all. Ironically, in the light of the recent unwelcome rise in youth unemployment, the CJEU has consistently held that inter-generational fairness (making room for younger workers) is a legitimate aim in itself. And in the current economic climate the government's hope that there would be an expanding job market to provide jobs for workers at both ends seems just a tad optimistic. Such a retirement would have to be argued as a SOSR dismissal; i.e. some other substantial reason within section 98(1)(b) as the scope for fair retirement per se has been removed.

Agency workers

Although the UK uses significantly more agency workers than other EU member states, my impression is that most employers have not got to grips with the AWR which are now in force. The regulations apply to agency temps, defined as a person 'supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer'. They do not apply to the genuinely self-employed, in-house temporary staffing banks, employment via service companies, those who work on 'managed service agreements' i.e. not under the control of the hirer or people on secondment.

Agency workers are entitled to certain rights from day one and some of these are among the most unclear. They must be allowed to access the hirer's collective facilities and amenities such as a staff canteen, crèche and car parking subject to the same qualifying conditions as permanent staff. Agency workers must also be informed of any relevant job vacancies with the hirer from day one to ensure they have the same opportunities for progression as permanent staff. The BIS guide says that this does not apply in the case of a 'genuine headcount freeze' where posts are 'ring fenced for redeployment or restructuring'.

Two issues: first, what amounts to a collective right is bound to create argument, especially where the right in question is a discount or a subsidised service. Second, I think the regulations are meant to make it still possible for employers to prefer their permanent staff in a redundancy situation, but it is not clear how far they can go; for example, with redeployment opportunities for those at risk.

After 12 weeks agency workers are entitled to the same basic terms and conditions as permanent staff in relation to pay, hours and annual leave. The 12-week period is not retrospective so will only count from 1 October. The clock will be reset at the start of each new assignment except that certain events will only 'pause' the clock. These are breaks of less than six weeks, breaks of up to 28 weeks as a result of illness or injury and breaks for holiday entitlements.

The rights available to AWs after a continuous assignment of 12 weeks are entitlement to the same basic conditions as they would have had, had they been directly recruited by the hirer. They will also have the right to paid time off for antenatal care and to be offered alternative work while pregnant should they have to be suspended because of a risk to their health. If no alternative work exists, they must then be paid by the temping agency until the end of the assignment.

Basic conditions include pay, duration of working time, rest breaks, leave and night work. Pay includes basic pay, overtime, shift allowances, risk payments for hazardous duties and holiday pay (including enhanced entitlement). Bonuses or commission attributable to personal performance and additional discretionary payments are also included. But company sick pay, redundancy pay, pensions, private health insurance and bonuses which are not calculated by reference to personal performance (e.g. to reward loyalty or service) are excluded. Mixed bonus schemes which are very common and under which there are both personal and corporate elements will have to be unravelled. Benefits in kind such as those provided through salary sacrifice schemes are all excluded, but vouchers are included. I predict there will be cases about status and length of assignment, access to vacancies, collective facilities and bonus payments.

Employment law reform

The government's other initiative has created much more stir: back to the qualifying period of two years' service for unfair dismissal claims from April next year and fees starting at £250 for all tribunal cases from April 2013. Both proposals evidently reflect clear majority opinion from employer respondents to the first of the employment consultations carried out by the coalition government. The first is almost certainly misconceived albeit a response to the will of the people '“ or at least the majority of the employers that responded. The aim is to reduce litigation and thus create more jobs but there is no evidence of a pool of employees clogging up the tribunal system and frightening off employers by claiming unfair dismissal at between one and two years' service. And the most likely result is that those who feel unfairly treated will look for other ways of complaining and there are plenty. Many sources of protection do not require any service at all and some of them are enshrined in EU law. Conduct made unlawful by the Equality Act 2010 including unlawful discrimination, harassment and victimisation both as principal and agent can be challenged from day one, or before employment in respect of recruitment. Whistle blowing, asserting a statutory right and complaining about health and safety are just a few of the other rights that are not dependent on service. Well-advised individuals will find a way while the timid or less well informed will potentially suffer from unfair treatment. In a recent survey by the CIPD stress at work was found to be the greatest cause of long-term illness and job insecurity the single biggest cause.

At the beginning of October, the government also announced the extension of its red tape challenge to employment law with a three-week deadline which is nearly over. They would like to know which regulations (not primary legislation) are getting in the way of business.

Religion or belief

Following Grainger v Nicholson PLC (belief in anthropomorphic climate change) which set out the test for a protected belief, and cases such as Greater Manchester Police Authority v Power (belief in spiritualism and psychic powers) or Maistry v BBC (belief in public service broadcasting as having the higher purpose of promoting cultural interchange and social cohesion), it is clear that the definition of a protected belief is pretty wide if it meets other elements of the definition.

The focus is currently more on the scope of protection available for manifestations of belief and especially where these beliefs are in conflict with some aspect of the employer's policies. We have four cases going to the ECHR in two groups. The joined cases of Eweida and Chaplin are about religious symbols: both women were refused permission to wear their crosses visibly at work. The joined cases of Ladele and McFarlane are about the conflict between religious beliefs and duties of work. Ladele, a local authority registrar, wanted to be excused from carrying out civil partnerships, and McFarlane, a Relate counsellor, didn't want to provide psycho-sexual counselling for gay couples.

Eweida and Chaplin are freedom of expression cases under article 9 and the non-discrimination provisions of article 14. The questions to the ECHR are:

1. Did the restriction on visibly wearing a cross or crucifix at work amount to an interference with the applicant's right to manifest her religion or belief, as protected by article 9 of the Convention?

2. In the event that there was such an interference: (a) in the first applicant's case, was there a breach of the state's positive obligation to protect the applicant's rights under article 9? (b) in the second applicant's case, was the interference 'necessary in a democratic society'?

Ladele and McFarlane are also cases brought under articles 9 and 14 but in addition the complainants refer to article 13, effective remedy. McFarlane, who was denied leave to take his case to the Court of Appeal, also has complaints under articles 6 (due process) and 8 (right to respect for private life). In essence all four argue that their rights are not properly protected unless there is a measure of accommodation for them. The UK Equality and Human Rights Commission has intervened to support that proposition. It will be a long time before we get an answer from the ECHR but it is ironic that the most visible effect of the right to protection seems to be a limitation of the right to manifest your beliefs.