Update: employment

Retirement

The snappily entitled Employment Equality (Repeal of Retirement Age Provision) Regulations 2011 have been revised and laid again and are now in their final form. From 6 April, it will no longer be lawful for an employment relationship to terminate by retirement unless the employee wants it to or the employer can justify it.

Schedule 9 of the Equality Act 2010 has been amended to remove the general exception for the default retirement age (DRA) of 65 or above, and also to remove the exception which permitted employers to refuse to recruit someone who was within six months of the DRA.

So, retirement will now be age discrimination unless it can be justified as a proportionate means of achieving a legitimate aim (PROMALA). And there will undoubtedly be an impact on other employment planning measures that have hitherto been predicated on a known finite employment relationship. This will no doubt be a developing topic.

The Employment Rights Act 1996 has also been amended to remove 'retirement' as a potentially fair reason. And the whole edifice of the retirement procedure and the right to request etc. has been dismantled, getting rid of sections 98 ZA-ZH.

So, if an employer wants to retire its staff, it will have to establish that it has an employer justified retirement age (EJRA), which isa PROMALA and that this amounts to a substantial reason justifying dismissal (SOSR) under section 98(1)(b).

Discrimination lawyers will be kept busy and will look forward to judicial pronouncements, not least from the Supreme Court in Homer v North Yorkshire Constabulary and Seldon v CWJ next year.

There are transitional provisions. The current regime can potentially be continued until October 2012. Employers are permitted to use the procedures to give lawful notice of retirement provided they give notice of at least six and no more than 12 months by 6 April to employees who have or will have reached DRA by 1 October 2011.

So, at stage one, employees of the right age can be retired up to 5 April 2012 by giving maximum notice. The employee has the right to request an extension by counter notice which must be served between three and six months before the notified RA. Probably the latest for a counter notice would be 5 January 2012. A single extension of up to six months can be agreed without the need for a further notice, which would then be unlawful anyway. That single extension could go to 4 or 5 October 2012. Unfortunately, there is still much debate about precise timings which will probably only be settled by judicial decision.

Paternity leave

After a period of uncertainty it is clear that the Additional Paternity Leave and Pay Regulations (respectively 2010/1055 and 2010/1956) will come into force as passed. They are intended to provide a mirror-image set of leave rights for fathers/civil partners so that the parents can (sequentially) share the care of their child in the first year of its life. The additional paternity rights are on top of paternity leave, which is a two-week entitlement that has to be taken within 56 days of the birth.

The APL/APS regulations are a bit fiddly but basically where the child is due (or matched for adoption) after 3 April 2011 and the mother is entitled to maternity leave or pay, or maternity allowance, a qualifying father or civil partner has the right to take up to 26 weeks' paternity leave between 20 weeks and 12 months after the birth provided the mother has returned to work.

The other parent also has the right to paternity pay, to return to his old job and not to be subjected to a detriment. The intention of the new rules is to provide a regime of leave and protection to enable working people to share parenting leave, rather than it all accruing to the mother as it does under maternity leave rights.

The other parent has to have at least 26 weeks' service by the 15 weeks before the due date and also to be in the same employment at the start of the leave. S/he must give at least eight weeks' notice of the intended start date and other details such as the date of the child's birth, the dates of the leave, a declaration that the leave is to care for the child. There are government forms (SC7,8 and 9) that can be used or the employer can ask the other parent to fill in its own form which could request more information.

The other parent won't have any additional leave rights if the mother does not return to work, including evidently if she is on sick leave. And with his/her notification the other parent has to enclose a signed declaration from the mother giving various personal details, including her national insurance number and her intended date of return to work and confirmation of the status of both parents.

The employer of the other parent is then entitled to ask for further details, including a copy of the birth certificate and details of the mother's employer, presumably to make further checks as the mother is required to give consent to the processing of her data.

Finally, the other parent will have the same right as women on maternity leave currently have to preferential redeployment in a redundancy situation.

Unfair dismissal

Every employment lawyer knows the test for unfair dismissal '“ was the employer's decision one which a reasonable employer could have reached (with a fair process and proper investigation)? And every employment tribunal reminds itself that it must not substitute its own decision for that of the employer. But, while the test is easy to articulate, it can sometimes be quite difficult to apply.

In London Ambulance v Small [2009] EWCA Civ 220, the Court of Appeal reversed a finding of unfair dismissal and robustly reminded tribunals of the dangers of substitution. In that case, the ambulance trust had dismissed a paramedic for gross misconduct after a complaint by a patient's daughter.

The tribunal found the dismissal to have been unfair but the Court of Appeal allowed the trust's appeal. In its judgment, although the tribunal had clearly cited the correct test, it had not applied it but had instead applied its own views to the evidence for which the claimant had been dismissed. The substitution error meant that the dismissal was unfair.

In Bowater v London Hospitals NHS Trust [2011] EWCA Civ 63, the EAT sought to apply Small in reversing a majority tribunal decision of unfair dismissal. It held that

the ET had substituted its own view, an impermissible approach. However, this time the Court of Appeal decided that it was the EAT that had misapplied the substitution test and restored the tribunal's original decision.

The details of the case are arresting. The plaintiff was a senior nurse who made a lewd comment while straddling an unconscious patient who had become partly naked during emergency treatment. She was later sacked for gross misconduct.

The employment tribunal decided this was unfair having regard to all the circumstances. The tribunal cited the correct test (admittedly not always a guarantee of correct application) and then decided that the majority of the population would have found the remark to be a misguided attempt at humour andnot a sackable offence.

The EAT disagreed. It held that the ET's approach was in effect a substitution of its own views as to what amounted to gross misconduct and overturned the finding of unfair dismissal. The Court of Appeal disagreed with the EAT. The tribunal had not wrongly substituted its own views. The reference to attempted humour and the reaction of most people was merely a way of expressing the range of reasonable responses.

In cases of this kind it was important to give proper respect to the decision of the ET to which parliament had entrusted difficult and sometimes borderline decisions about fairness.

Practitioners may be left feeling a little bemused and wondering if ultimately they will need to rely on gut instincts in such cases to help them decide on which side of the line they are.

Finally, the decision in Ezsias v North Glamorgan NHS Trust (2) is somewhat ironic and a good illustration of the problems the employment tribunal system faces. In 2006, Mr Ezsias created an important practice precedent. The striking out of his case by the Cardiff tribunal was overturned by the EAT. While recognising that the tribunal was concerned with a long case with very little apparent prospect of success, the then president concluded that it was hardly ever going to be appropriate to strike out a case where there were significant factual disputes in a case involving important principles, such as whistle blowing as was the case here.

Some years later, the substantive case was heard in the tribunal and evidently took 38 days to hear, of which the last two were summing up. At the end of it, the tribunal rejected all of Mr Ezsias' claims. The tribunal judgment is well over 760 paragraphs.

Now the EAT has upheld the tribunal and we have yet another unusual SOSR case similar in its facts to Perkin v St Georges Healthcare NHS Trust [2005] EWCA Civ 1174 which is authority for the proposition that where an individual is dismissed because of irretrievable breakdown between him and his colleagues (irrespective of whether he had been responsible for, or had contributed to, that breakdown) he had not had action taken against him because of his conduct.

In its conclusion, the EAT commented that Mr Ezsias had invested a considerable amount of time and emotional commitment into the long drawn out case and went on to express the hope that he could harness his 'many qualities' in a way which would enable him to make 'a valuable contribution to the community'. The sub-text seems to be a gentle hint that he should stop litigating.

So, while the first EAT was undoubtedly right in law, the instinct of the first tribunal appears to have been spot on. The government is currently conducting a consultation into tribunal practice and procedure, but its questions and proposed changes would have no impact on this type of case which is arguably one of the most challenging and draining for all concerned, including the tribunal itself.