News & Bulletins

What's New in Employment Law for Summer 2007

Undoubtedly the biggest news this month and which has caused the most controversy has been the No Smoking Ban which affected all public and workplaces in the UK from 1^st July 2007.

 Although we’ve only had just over a week to get used to this, we tend to associate the ban with buildings only.   

 Yet there are other areas that many of us have forgotten, which have been affected of which employers need to be aware of this.

 The ‘No Smoking Ban’ also applies to vehicles, in particular:

 ·        Enclosed vehicles which are used by one or more people i.e.

·        Pool cars even if used by only one employee at a time

·        Chauffeur driven vehicles

·        Vans or other vehicles used by two or more employees

·        Affected vehicles must display clear ‘No Smoking’ signs and individual employees will be fined with the maximum file falling on the employer of £2500 per incident.

 Words of Warning

 A recent case of Airbus UK .v. Web has found that expired disciplinary warnings can never be taken into account when deciding whether to dismiss an employee. 

 In this particular case, the warning had expired by only 3 weeks but still could not be taken into account.

 It appears that the courts haven’t stipulated any length of time on  the warning but when it has expired it must not be considered or even discussed in the context of a dismissal.   If it is,  then  it will render a dismissal probably unfair.

 Age Discrimination – the latest position

 Since its introduction last year there have been some interesting new developments:

 ·        Age Concern have mounted a challenge against a default retirement age of 65.   What that means. is that presently the employee has a right to request working beyond the age of 65, but the employer is under no obligation to meet those requests or even to justify the reason why it has not.   All of which renders the legislation for the over 65’s pretty pointless really.   

·        Age Concern are saying that the Government have failed to correctly implement the EU Equal Treatment Directive and the next stage is to go to the European Court of Justice.   Whilst it is unlikely that there will be a decision for about 18 months workers particularly those of 65 and over are likely to have the same rights as younger employees.

·        An Irish case in the last few months reminds employees that Age Discrimination applies to those applying for jobs as well as current employees.   In this particular case, the employee was asked to fill in a questionnaire which asked for his age and date of birth and questions about where he lived i.e. whether it was in rented accommodation or mortgage accommodation and how many children he had.   The applicant gave an incorrect age and refused to complete his date of birth.

 The applicant did not get the job regardless of the fact that he had entered his incorrect age onto the form and brought an Age Discrimination Claim.  The judgement was that he had indeed been discriminated against on the ground of his age and he was awarded €5000 compensation.   (Many employers have taken the precaution of removing direct questions about the applicant’s age from their application forms).

·        Richard Branson recently fell foul of the legislation in Australia though his company, Virgin Airlines, where a number of female air hostesses successfully brought a claim against his (unofficial) policy of not recruiting anybody over the age of 35.   It seems that the phrase “trolley dollies” is now firmly a thing of the past.

 ·        Latest news; The biggest high profile age discrimination claim to hit the UK Tribunals has been brought by an ex-insolvency partner at a ”Magic Circle” firm in the City.   He alleges that the firm’s pension reforms forced him into retirement 6 months earlier than intended.   Another corporate partner Lois Moore has now joined him in bringing a similar case.

 Numerous other age discrimination cases are waiting in the wings and statistics reveal that 972 cases were filed between October 2006 and June 2007 with 1 in 9 employers receiving claims.

 Without Prejudice Discussions

Statements made and documents created as part of a genuine attempt to resolve a dispute will generally be “without prejudice” however;

 ·        This only applies in the event of a dispute.  This may not include therefore the mere raising of a grievance by an employee.

·        Settlement discussions which involve discriminatory comments may not be covered as ‘privileged’ and cannot be waived to give way to other public policy considerations.

 Employers should not therefore assume that “off the record” or “without prejudice” discussions will not subsequently be referred to.

 This guide is intended to be a brief guide of new Employment Law coming into force in 2007. For a more detailed assessment or advice on any specific question please contact Lynne Burns, Head of the Group on 0207 665 0842 or by e-mail, Lynne.Burns@vtlaw.co.

Date:  August 2007

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