Top 5 employment law issues for 2011

by Laurie Anstis on January 3, 2011

2011 looks like being a turbulent year for employment and employment rights. Public sector cutbacks will start to bite, and there is talk of renewed trade union militancy, which could lead to some interesting cases in the field of collective industrial relations. Even without these economic pressures, it was looking like being an interesting year, with some substantial new pieces of legislation challenging long-held assumptions about the world of work. Here are my top 5 employment law issues for 2011:

1. Abolition of the default retirement age

For years it has been assumed that there will come a time when your employer can dismiss you simply because of your age. Before age discrimination law came into force, those over retirement age had no right to complain of unfair dismissal. Under age discrimination law this was replaced with “retirement” as a potentially fair reason for dismissal and excluded from age discrimination law provided that the complex retirement procedures were followed. If the employer followed the procedure, the employee had no right to complain that they had been dismissed on retirement.

As of October 2011, this old assumption will no longer apply. Age alone will not be a reason for dismissal, except perhaps for a few exceptional cases such as the emergency services. This is going to throw greater focus and pressure on employer’s absence and performance management procedures, since these will have to be used if the employer is to fairly dismiss an individual over retirement age by reason of poor health or performance. These procedures will have to apply with full rigour to those of all ages if the employer is going to avoid accusations that it is only older employees who are being subjected to these procedures.

Although this change is expected to take effect in October 2011, employers will have to take action much sooner than that, since the last six month retirement notices under the old procedures will have to be issued during March 2011.

Of course, a Seldon-like approach to the question of justification by the tribunals may well mean that it continues to be business as usual so far as compulsory retirement is concerned.


2. The Bribery Act 2010

This is not specifically a piece of employment legislation, but something that does raise employment issues and has the potential to require as much cultural change as the abolition of the default retirement age. In particular, employers will have to get to grips with the concept of having “adequate procedures” to prevent bribery, and the Act has the potential to challenge long-standing assumptions about the way business is done, particularly as regards corporate hospitality.

3. Sex discrimination and pregnancy/maternity leave

Not this year the familiar territory of sex discrimination claims brought by women who say they have been disadvantaged by their pregnancy or maternity leave, but instead men claiming that women have been advantaged by being on maternity leave.

De Belin -v- Eversheds (on the question of a woman getting the maximum score in a redundancy selection criteria while on maternity leave) is testing the limits of the exemption for special treatment for women on maternity leave, while  developments such as the Roca Alvarez case and Markin -v- Russia give encouragement to men wishing to claim family rights previously only available to women.

IDS Eye has more on the De Belin case (and their other cases to watch for 2011) here.

Michael Rubenstein’s invaluable lecture notes on “Key Cases for 2010-11” are available here.

4. The revival of disability-related discrimination by the Equality Act 2010

Disability-related discrimination, previously cut down as a cause of action by Lewisham -v- Malcolm, is back in a different form under the Equality Act 2010. This will bring many more cases (including the likes of O’Hanlon -v- HMRC on the payment of sick pay) into the territory of prima facie disability discrimination, throwing the focus on the employer’s ability to justify the discrimination. How far will the courts permit cost alone as justification in this context, after Woodcock -v- Cumbria?

Look out also for cases in the new area of indirect disability discrimination, introduced for the first time by the Equality Act 2010.

5. The Agency Workers Regulations

Due to come into force in October 2011 and providing, amongst other things, for agency workers to be entitled to the same pay as comparable employees within the client organisation (after a 12 week qualifying period). I have not yet seen any consensus on how agencies and clients plan to address this, but it does seem to be another nail in the coffin of the concept of hiring an agency worker being a easy and unregulated way for organisations to obtain labour.

Other things to watch for: caste seems likely to be added to the list of  “protected characteristics” under the Equality Act 2010, following the publication of a supportive government report (doc link) and with Equalities Minister Lynne Featherstone being an advocate of the idea.  Look out too for the unfair dismissal qualifying period increasing from one year to two years. There are no firm plans for this, but it would have quite an impact if it came about.

I would love to hear in the comments with other people’s top 5 employment law issues for 2011. Over to you …

6 comments

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I’d agree with your list – though I think I’d put agency workers nearer the top.

However I’d also add that the forthcoming review of employment law may throw up some more radical ideas than just extending the qualifying period for unfair dismissal. In particular I wouldn’t be surprised to see some specific exemptions for small businesses and a serious look at access to employment tribunals and the costs regime.

I also wonder what will happen to TUPE if the Big Society idea leads to massive contracting out. Will the Government want to keep the current service provision change rules or decide that they are gold plating and need to go?

It may be that what we are all talking about at the end of 2011 turns out to be very different from anything we anticipated at the beginning.

by Darren Newman on 3 January 2011 at 4:11 pm. #

Hi Laurie,

Your list looks good
to me, but I do not pretend to be an expert on these matters. Much
of my work is done with Employment Lawyers and HR Depts, and both
have the same basic concerns and worries about employing
staff.

1) How far are they allowed to go with
doing indepth background checks on a candidate without infringeing
his/her human rights and the worries about Data Protection? 2) New
employers get almost nothing (officially) from old employers by way
of a reference, which does not help their assessment of the
candidate, and therefore forces them to either take a chance, or to
engage someone like me to do a background check. 3) The law appears
to be weighted in favour of the employee, and so it is very costly
and time consuming to get rid of a bad employee.

Just my thoughts..Andy

by Andy Mileham on 5 January 2011 at 12:39 pm. #

I think I pretty much agree with your list,
although I also agree with Darren that, with the CBI pushing for a
review of access to tribunals, this may well turn out to be a big
issue too. There are good articles about this by Adam Wagner on
UK Human Rights Blog, and by Richard
Moorhead on LawyerWatch.

I would
also add the following important issues to watch out for:

  • The outcome of the review of the
    vetting and barring scheme is expected early this
    year.

  • There will be changes
    to family-friendly rights:

    — Additional
    paternity leave is coming in as a temporary measure while the gov
    think up a better plan. Many people are wondering how to implement
    this, and whether the Equality Act requires them to mirror any
    enhanced maternity benefits given to women during maternity leave.
    De Belin (above) may have an impact on this.


    The flexible working regs are eing extended to parents of all
    children up to 18 from April, and consultation will take place on
    its extension to all employees.

by Mark Tarran on 6 January 2011 at 11:42 am. #

[…] had made this my number one employment law issue for 2011, seeing it as a major challenge to the way in which employers had operated in the […]

by The default retirement age is abolished ... and comes back again | Work/Life/Law on 18 January 2011 at 7:06 pm. #

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