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The Coming of Age

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The Coming of Age

From recruitment to retirement and everything in between – on 1^st October 2006, the Employment Equality (Age) Regulations (Northern Ireland) 2006 come into force bringing the most important new employment rights for decades.

The Regulations will:-

Prohibit age discrimination, including direct and indirect discrimination, harassment and victimisation.
Introduce a national default retirement age of 65 (to be reviewed in 2011) and prohibit retirement ages below 65 unless objectively justified.
Remove upper age limits in respect of unfair dismissal and redundancy claims.
Require employers to inform employees in writing at least 6 months (and no more than 12 months) in advance of their intended retirement date and of their right to request working beyond that date.
Impose upon employers a duty to consider an employees request to continue working, which includes meeting with the employee and giving the employee a right of appeal against the decision.

Age discrimination or ageism whether against the old or the young does not yet have the social stigma of racism, sexism or homophobia and it is perhaps all too easy to allow someone’s age to influence how we perceive them and in turn how we treat them. A 20 year old exceeding his targets may be considered a “high flyer” or “hot shot” whereas a 40 year old in the same role and performing at the same level may not inspire comment or praise. This may well be an example of an “ageist” attitude. A senior employee referred to, however fondly, as “over the hill” or a young employee jokingly referred to as “wet behind the ears” come October 1st may have a potential claim for harassment.

As a result of the new Regulations it is expected that a significant number of age related claims will be brought before the Industrial Tribunal as has been the experience to date in other countries in which comparable legislation is already in force. Defences are provided for; however the Tribunal will have the power to award unlimited compensation in successful claims and it is therefore essential that the ethos behind the Regulations is embraced and steps taken to change traditional perceptions.

In addition to familiarising themselves with the Regulations (too detailed to be analysed comprehensively in this article), reviewing contracts of employment and extending equal opportunities and harassment policies to cover age, there are practical steps which employers should also take to minimise the risk of claims:-

Recruitment

· When advertising positions remove age limits, avoid specifying a minimum length of experience, use neutral language that appeals to a wide age group, avoid hidden messages through photographs/pictures and publish in publications that reach a varied age group.

· Avoid asking for age or date of birth on application forms, instead include this information on monitoring forms and make use of this in respect of successful candidates to provide an age profile of the workplace.

· Application forms should also avoid asking for unnecessary information about periods and dates.

· Ensure that specialist recruitment programmes, for example, graduate schemes, are open to all ages.

· Check that any recruitment agency used does not exclude people because of their age.

Selection

· Focus on skills, do not make assumptions about capability or medical fitness based upon age, and ensure that those responsible for selection and interviewing are trained in equal opportunities.

· At interview, use a panel made up of people of different ages. Ask job related questions and use selection criteria.

Benefits

· Ensure that any pay or benefits policies are not based on age.

· Ensure that any benefits which take into account service of more than five years can be justified as fulfilling a genuine business need, for example, encouraging loyalty.

· Check that pension benefits fall within the new regulations.

Promotion

· Make promotion opportunities open to all employees and avoid a minimum or maximum cut off age.

· Promote on the basis of performance rather than age or length of service.

Training

· Training should be open to all no matter what age.

Redundancy

· Base redundancy decisions on job-related criteria and business needs.

· ‘Last in first out” is not necessarily the best approach

· Consider voluntary redundancies and alternatives to redundancy

Retirement

· Put in place procedures to deal with retirement – ensuring that they comply with the legislative requirements (outlined briefly above) and diarise retirement dates accurately. Failure to follow the procedure may lead to an automatic finding of unfair dismissal.

· Ensure that the refusal of requests from employees to continue working beyond retirement age is dealt with consistently - it will be good practice to set out reasons for the decision.

· Consider alternatives to stopping work altogether, for example reduced hours or job sharing.

· Encourage older employees as they near retirement to mentor other staff to pass on skills.

The coming of age discrimination is just around the corner and employers should act now to protect themselves.

Louise Butler is a Solicitor and part of the Employment Law team, McKinty and Wright, Solicitors. Tel: 028 90246751

Email: louise.butler@mckinty-wright.co.uk

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Workplace Bullies in the Dock

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A six figure sum awarded by a High Court Judge in London recently attracted much press attention. Helen Green, 36, a City secretary who brought proceedings against her former employer, Deutsche Bank, claiming psychiatric injury for bullying and harassment received £828,000 in damages.

Ms Green claimed that her fellow employees in the Company secretarial division had engaged in offensive, abusive, intimidating, humiliating, patronising, infantile and insulting words and behaviour. Mr Justice Owen held that the behaviour was “a deliberate and concerted campaign of bullying within the ordinary meaning of that term”. He also found it to be a longstanding problem in the department and commented that the bank’s management was “weak and ineffectual”.

He awarded Ms Green £35,000 for pain and suffering; £25,000 for disadvantage on the labour market; £128,000 for past loss of earnings, and £640,000 for future loss of earnings including pension. In addition her former employers were ordered to pay her legal costs which will probably double the amount of the award of damages. It is important to note that Ms Green was not a City high-flyer in terms of her earnings; her salary was £45,000, a sum which many employees in Northern Ireland now enjoy. Therefore, it is not inconceivable that Courts in this Jurisdiction could award a similar level of damages, perhaps even more. Judges here have traditionally been more generous when assessing future loss of earnings because of the historically disadvantaged job market in Northern Ireland when compared with the rest of the UK.

Another recent decision of note with undoubtedly greater legal ramifications is that of Majrowski v. Guy’s & St Thomas’ NHS Trust, a decision of the House of Lords. Mr Majrowski worked for the Defendant as an audit co-ordinator and claimed he had been bullied by his Manager. Unlike Ms Green he did not bring proceedings for negligence and breach of contract but instead relied on the Protection from Harassment Act 1997 (the equivalent legislation in Northern Ireland being the Protection from Harassment (NI) Order 1997). This legislation was originally designed to prevent stalking, but the Law Lords ruled that Parliament had intended that the legislation should give rise to vicarious liability. Quite simply this means that an employer could be held legally responsible for the bullying of their employee even if they did not know what their employee was doing.

The Majrowski decision has potentially serious implications for employers since it gives employees who claim to have been bullied or harassed at work a further basis upon which to claim compensation from their employers. Critically, some of the existing limitations and defences will not be available. For example, an employer has a defence under existing discrimination legislation if it can show that it took all reasonably practicable steps to prevent discriminatory harassment occurring. This would not help an employer facing a claim that it was vicariously liable for an employee’s harassment under the Act. Furthermore, a claimant need not show that he has suffered a recognised psychiatric injury; distress or anxiety will suffice. Additionally, the normal three year limitation period will not apply and a claimant has up to six years to bring a claim under the Protection from Harassment legislation.

It is therefore essential that employers seek to establish a set of underlying values which become part of the culture of their organisation in order to minimise the risk of bullying and harassment claims arising. Having well intentioned policies on paper is unlikely to be enough. Employers need to ensure that positive steps are taken to eradicate any culture of bullying or harassment which may exist.

Unlike Ms Green, Mr Majrowski has not suffered any lasting psychological illness as a result of his harassment in the workplace. In terms of damages his claim under the Act is probably worth only a few thousand pounds. Even so, many employers know to their own cost the impact of litigation in terms of employees’ time, resources and morale, let alone the legal costs involved in defending such cases. As always, prevention is better than cure and employers would be well advised, if they have not already done so, to seek legal advice on how to minimise the risk of bullying and harassment claims arising within their organisation.

kevin.mcwilliams@mckinty-wright.co.uk

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Work and Families: Getting the Balance Right?

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Significant new employment laws have been introduced by the Work & Families (Northern Ireland) Order 2006 in an effort to further the Government’s aim of establishing a balanced package of rights and responsibilities for both employers and employees.

Many employers will have been focusing on the advent of age discrimination law and may not appreciate the extent of these changes and their impact on business. The new laws include changes to:

· Maternity Leave and pay

· Flexible working

· Paternity Leave and pay

Maternity Rights

The Order and associated Regulations enhance rights to maternity leave and pay but also address the often vexed areas of contact between employer and employee during maternity leave and notification of the employee’s return to work date.

The new arrangements apply to any employee whose baby is due on or after 1 April 2007 and provide for:

· increased maternity pay – extension of paid maternity leave from 6 to 9 months. It is intended to further extend this period to 12 months by 2010.

· extended eligibility for additional maternity leave – the current requirement for a woman to meet a minimum period of employment before qualifying for a full 12 months of maternity leave is abolished. All employees will be entitled to 6 months Ordinary Maternity Leave and 6 months Additional Maternity Leave regardless of length of service.

· “keeping in touch” days – where the employer and employee both agree the employee on maternity leave can go into work for up to 10 days without losing her right to leave or maternity pay. Work in this context is not limited to the employee’s usual job and includes training or any activity undertaken for the purposes of keeping in touch with the workplace. The employee can pursue a Tribunal claim against her employer if she is subjected to detriment or dismissal by reason of either undertaking or refusing to undertake any such work. For example, she cannot be penalised for refusing to take up a keeping in touch day. It is expected that the employee will be paid for any work done but the amount will be subject to agreement.

· reasonable contact – it is made explicit that employers can make reasonable contact with an employee during the leave period. Employers should agree with the employee on the type of contact.

· return date – an employee who is not planning to take all of the Additional Maternity Leave must give 8 weeks notice of her return date instead of the current 28 days. Similarly she must give 8 weeks notice of any change to that date.

The right to 9 months Statutory Maternity Pay or Maternity Allowance will have an obvious impact for employers. Hopefully this will be eased somewhat by the improved employer/employee communication during the leave period and the new arrangements should enable employers to plan ahead and manage the leave with greater certainty.

Extension of the Right to Request Flexible Working

Currently the right to request flexible working is available only to parents of children under 6 years of age and disabled children. From April 2007 the right will be extended to carers of adults including those caring for spouses, parents or partners. It has been estimated that 1 adult in 8 is a carer and there are 3.5 million carers in employment in the UK. The effect of these changes on businesses is likely to be significant.

Additional Paternity Leave

Fathers will benefit from a new right to 26 weeks additional Paternity Leave. However, this right is not anticipated to take effect until 2010. Broadly, the aim is to allow fathers to benefit from leave and statutory pay if the mother returns to work before the child’s first birthday. Details of the proposed arrangements are awaited.

Implications for Employers

Considerable resources will have to be employed by businesses to meet these changes. This will be money well spent. Whilst it would appear that many employers hold a positive view on these new provisions and the issue of flexible working generally, businesses run the risk of costly and protracted Tribunal complaints should they fail to adjust their practices accordingly. Employers need to:

· Gain a full understanding of the new provisions.

· Conduct a thorough review of all policies and procedures to bring them into line with the forthcoming changes. In particular maternity and flexible working policies.

· Train key staff in how to implement these changes.

sandra.crawford@mckinty-wright.co.uk

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Grievances: Employers Take Note

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The Statutory Grievance Procedures were introduced one year ago, together with the Statutory Dismissal and Relevant Disciplinary Action Procedures as part of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.

Their aim is, if possible, to settle workplace disputes by conciliation and agreement rather than legal proceedings. The Regulations impose statutory requirements on both the employer and the employee to follow a three stage procedure. It is therefore imperative that employers do not fall at the first hurdle in failing to identify a grievance.

An employer issues a verbal warning to an employee. The employee complained of procedural defects in the disciplinary hearing. Rather than convene a grievance meeting the employer granted the employee an appeal under the disciplinary procedures. Did the appeal hearing satisfy the obligation to hold a stage 2 grievance meeting? No, held the Employment Appeal Tribunal in Galaxy Showers v Wilson

Cases such as Galaxy Showers and Shergold v Fieldway Medical Centre are indicative of the broad approach being taken by the EAT in Great Britain in their application of the legislation and the generous interpretation of what constitutes the form of a grievance for the purposes of the Regulations. The case law establishes that the requirement is not onerous. Whilst not binding in NI the recent EAT decisions are of persuasive authority.

All employers should be aware of the following:-

· Although most Companies will have their own detailed procedure in place, a grievance need not necessarily follow those procedures.

· All complaints must be in writing and sent to the employer.

· A written grievance-

· need not be signed.

· does not need to set out the basis for the grievance.

· does not need to express an intention to raise a grievance

· does not need to contain a request for a discussion or a meeting

· can be raised by email, in an informal note, raised in written communications dealing with another matter or making an application (eg a request for flexible working).

· can be raised on behalf of the employee, eg by a solicitor, friend or Trade Union representative.

· can be contained in a letter of resignation

· The onus is on the employer to arrange a meeting with the employee and it is only before this meeting that the employee must inform the employer of the basis of the grievance.

· It is prudent for an employer to deal with a disciplinary appeal and an employee's grievance separately and to make the purpose of the meeting clear: ie to discuss the grievance.

· The grievance in question must relate to any subsequent Tribunal claim

There is a clear financial incentive for both sides- an increase or a reduction in compensation of at least 10% and up to 50% for failure to comply- to make themselves fully conversant with the detail of the Regulations. The Tribunals in NI have already shown that they are willing to exercise their discretion and uplift compensation by more than the base 10% in appropriate cases - a worrying thought for all employers who one year on may not yet have embraced the legislation.

Employers should therefore treat any letter, email or any other written document raising a complaint either from an employee or their representative with caution and arrange a meeting with the employee promptly to discuss the possible grievance.

Awareness is the key.

Employers should ensure that they and all their staff, especially managers, are aware of the grievance procedures, their implications and how to identify a grievance. Time devoted to awareness training should avoid unnecessary expenditure of time, resources and money at a later stage. Encouraging the workforce to raise grievances in a standard manner as set out in the Company’s own procedure should help eliminate, if not remove, any grey areas. It is vital for both parties that accurate written records should be kept of all actions contemplated and taken.

Identification of the grievance is of course just the start. There are many more unresolved questions posed by the Regulations which have not yet been addressed by the Tribunal. Lack of case law on other issues such as what constitutes “the basis” of the grievance and what exactly are the “exceptional circumstances” under which the Tribunal can exercise its discretion to make a reduction or increase of at least 10% unjust or inequitable, ensure that management and staff should tread this minefield of Dispute Regulations with caution.

It is too early to say whether or not the Government’s aim to encourage settlement of disputes without recourse to the Tribunal will have the desired effect. However, whether or not this turns out to be the case, identifying a grievance when it is raised and dealing with it in accordance with the Statutory Procedures is imperative if the penalties are to be avoided.

eleanor.burnett@mckinty-wright.co.uk

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McKinty and Wright Solicitors, 5-7 Upper Queen Street, Belfast BT1 6FS t.+44 (028) 9024 6751 f.+44 (028) 9023 1432 e. post@mckinty-wright.co.uk

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