The cases, Seldon v Clarkson Wright and Jakes and Homer v Chief Constable of West Yorkshire Police, involved compulsory retirement and a degree requirement for promotion. The respective outcomes offer important guidance for employers.

Seldon v Clarkson Wright and Jakes

Seldon concerned a partner at a law firm that had a policy of retiring partners at the age of 65. Mr Seldon was required to retire at 65 in line with this policy and claimed that this amounted to direct age discrimination.

The employment tribunal found that the policy was justified, and that it was a proportionate means of achieving aims relating to opportunities within the firm and employee turnover.

However, the Employment Appeal Tribunal (EAT) held that the tribunal had not considered whether or not these aims could have been achieved by a retirement age other than 65 and remitted the case to the tribunal to consider this point.

After the Court of Appeal dismissed Mr Seldon’s appeal, he appealed to the Supreme Court, which subsequently dismissed his appeal.

Although the case involves the compulsory retirement of a partner in a law firm, rather than requiring employees to retire, the Supreme Court guidance applies equally to employers seeking to justify retaining a compulsory retirement age under the Equality Act 2010.

The implications of Seldon for employers are:

• While an employer could claim that the aim of having a set retirement age is to encourage a more diverse workforce by freeing up space for younger workers, the employer is likely to have to show that there is a problem with recruiting the young in its industry and that this problem has been specifically caused by the retention of older workers in that sector;
• Employers with sophisticated performance-management measures in place are highly unlikely to be able to justify having a retirement age to avoid confrontation with underperforming workers.
• The employer would also have to show that its chosen mandatory retirement age was set at a level that is appropriate and necessary to achieve the aim in question.

Comment: Does this decision suggest that the door has been left open for employers to set their own retirement ages? The Chartered Institute of Personnel and Development (CIPD) has advised that this is not the case and, instead, warned employers to remember the business benefits of recruiting, retaining, engaging and motivating a diverse workforce.

CIPD diversity adviser Dianah Worman said: “The main messages to be taken are the difficulty of providing well-evidenced reasons to justify the retention of a retirement age and the importance of good performance management to safely dismiss a person fairly on the basis of capability rather than their age. Since the removal of the default retirement age came into force, most businesses have dealt with the banning of compulsory retirement without skipping a beat, and there is significant evidence of good practice delivering real business benefits.

“The CIPD has consistently argued that compulsory retirement should only be implemented in exceptional and well-evidenced circumstances, which should be applied across all forms of employment.

“For business, labour-market economics and societal reasons, employers should not interpret the Seldon judgment as an indication that maintaining a retirement age is an easy or desirable option. On the contrary, we believe it points to the legal complexities of stacking one up when challenged. Good performance management is the way forward and employers need to bite the bullet on this.”

Homer v Chief Constable of West Yorkshire Police

The case concerned a worker at the Police National Legal Database (PNLD) who began working there before a degree was required for a particular position (skills and experience were considered sufficient, together with a lesser qualification).

However, in 2005, a new grading system was introduced at the PNLD, meaning that a law degree or similar was required in order for employees to achieve promotion to particular grades in the organisation. Therefore, when Mr Homer attempted to apply for a promotion to the highest grade, his application was rejected due to his not holding a relevant degree.

Mr Homer complained that, since he was aged 62 at the time and it would have taken him four years to complete a part-time law degree, this would have taken him beyond the PNLD’s retirement age of 65.

He complained that he was therefore unable to obtain the degree required to achieve promotion before the time he was due to retire.

Mr Homer’s internal appeals were rejected, and he claimed indirect age discrimination. The employment tribunal upheld his claims, but the EAT found that there had been no indirect age discrimination. The Court of Appeal agreed, and the case went to the Supreme Court.

The Supreme Court held that the PNLD’s degree requirement for promotion was indirect age discrimination, but sent the case back to the employment tribunal to decide whether or not the PNLD’s actions were justified as a proportionate means of achieving a legitimate aim. Watch this space!

Where an employer reorganises its workforce with the consequence that some roles are redundant and new roles are created, it is a common practice to invite potentially redundant employees to be invited to apply for the new roles that will be created.

During a redundancy selection exercise the EAT confirmed that an employer must apply objective selection criteria. However, in a situation where an employer is selecting employees to fill newly created roles following a redundancy exercise, then this case decided that an employer is entitled to take a different approach and apply subjective selection criteria to select the candidate that will best perform in the new role. An employer is entitled to interview for a new role on a forward looking basis.

In this case, Samsung decided to restructure its sales team and D’Cruz’s role became redundant as a consequence (merging the roles of three Heads of Sales into one overarching Head of Sales position). D’Cruz was invited to apply for one of the new roles. He and another employee applied for the role but both were unsuccessful with the role eventually being awarded to an external candidate. The EAT held that the dismissal was not unfair as the employer was entitled to apply subjective criteria to find the right person for the new role. Even if the new role was similar to the employee’s old role, the employer was entitled to interview on a forward looking basis.

The EAT also made some general good practice recommendations for interviewers selecting for a new role – employers take note!:

• interviewers should discuss with one another the approach that they will follow;
• it is sensible for interviewers to discuss what they understand by any specified assessment criteria;
• it would be a good idea for interviewers to discuss in advance what they considered to be “good answers” to the questions asked;
• in a perfect world it would be ideal to record all questions and answers in full.

The EAT stressed however that any failure to take any of the above steps would not of themselves render an interview decision unfair. On the facts, D’Cruz’s suitability for the new role had been assessed in a formal interview process by two Senior Managers who had applied the identified criteria and made a systematic evaluation of his suitability in good faith. His dismissal was therefore fair.

Comment: Reorganisations and redundancies may again become pretty commonplace over the next few months due to the current economic situation. Make sure you follow a fair process in all instances – if in doubt, just give us a shout and we will help you through the stressful process.

Background: It is a defence to a claim of indirect discrimination (on any of the protected grounds) that the provision, criterion or practice (PCP) complained of is objectively justifiable, that is, it is a proportionate means of achieving a legitimate aim. It is also possible to defend a claim of direct age discrimination on such grounds. An issue which has been subject to considerable legal debate is whether saving costs alone can be a legitimate aim to justify a discriminatory PCP or an act of direct age discrimination. Comments by the previous President of the EAT hinted that costs alone could, in certain circumstances, amount to a legitimate aim to justify indirect discrimination and/or direct age discrimination.

The Court of Appeal has now confirmed that the saving of cost must be combined with another legitimate aim in order to justify direct age discrimination and/or indirect discrimination.

In this case, Woodcock’s role disappeared in a reorganisation. He occupied temporary positions for a 12 month period whilst an alternative role was looked for. Informal discussions had taken place with Woodcock for some time before he was then given 12 months’ notice of dismissal prior to a formal redundancy consultation meeting taking place. The notice was served on a date that would ensure that it expired prior to Woodcock’s 50th birthday when he would have been entitled to take early retirement. This would have given rise to significant additional cost to his employer of between £500,000 and £1 million. Woodcock was subsequently made redundant.

He claimed unfair dismissal and age discrimination on the grounds that he had been served notice before the redundancy consultation meeting and this had been motivated by his age; any other employee younger than him would have had a redundancy consultation meeting first and then been served with notice of termination.

The Court of Appeal accepted that the timing of the dismissal notice prior to the planned redundancy consultation meeting was direct age discrimination, however, it was justifiable. The employer’s objective was to achieve Woodcock’s redundancy in a way that avoided the additional costs that would have been incurred if Woodcock had achieved early retirement. Given the facts of the case, the Court considered that Woodcock could have no right or expectation to enjoy enhanced pension benefits; he had been on notice for many, many months that he was potentially at risk of redundancy following the disappearance of his original role. In addition, the redundancy consultation process had been delayed for a number of reasons including the fact that Woodcock had been unable to attend scheduled meetings. If the process had commenced as originally anticipated, Woodcock could have had no reasonable hope of early retirement.

On these particular facts the Court of Appeal considered that the employer’s redundancy consultation corner cutting did not deprive Woodcock of anything as he had clearly indicated he was only interested in other CEO jobs of which there were none. Whilst the process was tainted with age discrimination, the aim of achieving a redundancy without incurring additional expense was a legitimate aim and the procedural shortcuts had been a proportionate means of achieving that aim.

However, the Court stressed that discriminatory treatment aimed at saving or avoiding costs alone would not be capable of justification. Employers seeking to justify indirectly discriminatory practices or direct age discrimination must ensure they identify an underlying aim that is not purely economic.

Recent ‘obiter’ (non binding) comments of the Court of Appeal should act as a warning to employers who routinely suspend employees at the beginning of disciplinary investigations.

It is clear that, in certain circumstances, it will be appropriate to suspend an employee, for example, if there is a risk that the employee may be in a position to cover up any wrong doing.

A Court of Appeal judge has stressed in this case that suspension should not be a knee-jerk reaction: warning that the routine, ill-considered use of the power to suspend can amount to a breach of the duty of trust and confidence towards employees. The judge considered that suspension will not always be in an employee’s best interests as employees will frequently feel belittled and demoralised by a total exclusion from work and the enforced removal from their work colleagues which could be psychologically very damaging. Even if the employee is subsequently cleared of the disciplinary charges, suspicions may linger.

The ACAS Code of Practice of Disciplinary and Grievance Procedures makes it clear that in some cases a period of suspension with pay may well be considered necessary. However, the Code provides that:

• any period of suspension should be as brief as possible;
• it should be kept under review; and
• it should be made clear that the suspension does not itself amount to a disciplinary action.

Comment: Employers’ disciplinary procedures should make it clear that suspension may be used in certain circumstances but that it does not denote guilt. Where an employee is suspended the suspension should be for the shortest period reasonably practicable in the circumstances and should not be operated routinely at the outset of every disciplinary investigation. It remains to be seen whether employees will seize on the comments of the Court of Appeal to use the fact of their suspension as a platform for claiming constructive unfair dismissal – LET’S HOPE NOT!

In this case the employment tribunal held that direct sex discrimination occurred when an employer failed to deal with an employee’s menopause in the same way as other medical conditions when applying its performance management policy.

Merchant had been the subject of BT’s underperformance procedure on and off for a number of years and this culminated in a final warning. When the problems continued, a process was begun to determine whether she should be offered alternative employment or dismissed. At a meeting to discuss the issue, she presented a letter from her GP stating that, in addition to her suffering from stress from being a carer for her mother and her aunt, she was “going through the menopause which can affect her level of concentration at times”. During the discussion Merchant referred to her menopause on several occasions.

The manager decided not to investigate her medical condition, feeling he had sufficient information to make a decision, even though BT’s performance management policy clearly stated that managers must find out whether underperformance was due to health factors. He dismissed Merchant for incapability. In his rationale for taking this action, he stated it was difficult to assess if the menopause had made an impact on Merchant’s performance – this was wholly inconsistent with his assertion at the time of the dismissal that he had all the information he needed.

The tribunal upheld Merchant’s claim for unfair dismissal and direct sex discrimination. The manager had failed to investigate the possible impact of the menopause. According to his evidence, he felt he could make a judgment on the effect the menopause had on Merchant’s performance and her ability to concentrate because both his wife and his HR adviser had been through it. This was a clear breach of BT’s own performance management policy and could only be explained by the fact that he did not take the menopause seriously as a medical condition. The tribunal pointed out that he would never have adopted “this bizarre and irrational approach with other non-female-related conditions”, particularly since women experience menopause in different ways. The failure to refer her for medical investigation, after being informed of the effects of her menopause, before taking the decision to dismiss, was direct sex discrimination because a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration), and where performance standards were not being achieved, would not have been treated in the same way.

Comment: The case demonstrates not only the need to follow a company’s own policies and procedures ‘to the letter’, but also the need to ensure that further medical investigation takes place where symptoms of a medical condition may be contributing to poor performance. The appeal courts have been crystal-clear that no action should be considered in ill-health capability situations until the ‘true medical position’ has been established. Here there was an even greater onus on the manager to do so when the employee presented him with a letter from her GP

As a previous tribunal case highlighted, Carpenter v Business Link London, while the menopause is gender specific, most of the symptoms are not. The effects such as inability to concentrate, flushes, sweats, sleep disturbance, urinary infections and so on, which can cause absence from work, or contribute to being less effective in a job, could be suffered by both sexes either through physical or mental conditions. So most of the effects are not unique to women even though menopause as a cause of them is.

NOTE: If you have a long-term sickness  issue and not sure what’s the best course of action please contact us since we can help you through the process and also provide Occupational Health services to help you manage the situation.

When is the effective date of termination when an employee unequivocally resigns on one date, with immediate effect, and her employer subsequently informs her that her resignation is to be taken as commencing on a later date?

The EAT in Horwood v Lincoln County Council said it is the former date, i.e. the date that the employee resigns.

The EAT observed that the EDT is not a term of contract law, but a statutory construct, specifically designed for the purposes of a legislative scheme of employment rights based on a personal contract.  Ms Horwood had provided a clear letter of resignation, and the law does not allow the EDT to be based on uncertainties, such as whether the letter would have been read on the intended date of receipt or not.  The employer could not unilaterally alter the EDT so that it became a later date, and thus the EDT was the date of the employee’s clear resignation.

Comment: When Employers accept a resignation they should always confirm it in writing asap, stating the EDT, any pay (or other benefits) due up that date, any holiday pay due that was accrued but untaken up to that date (or holiday claw back where too much had already been taken) when the payments due will be made and that a p45 will be sent in due course. Putting it in writing will avoid any confusion or hassle later down the line.

We provide our retained clients all the docs they will ever need to manage EVERY employment situation – just one benefit of being a valued retained client!

1 April: Maternity, paternity and adoption pay increased 

The standard rates of statutory maternity pay (SMP), paternity pay (SPP) and adoption pay (SAP) increase from £128.73 to £135.45 per week.

6 April: Statutory sick pay increased

The standard rate of statutory sick pay (SSP) increases from £81.60 to £85.85 per week.

Note: The lower earnings limit increases from £102 to £107 per week from 6 April too.

6 April: Qualifying period for unfair dimissal increased

The qualifying period for employees to claim unfair dismissal (and have the right to written reasons for dismissal) increases from one to two years. Note: The increase applies only to employees whose employment begins on or after 6 April.

6 April: Employment tribunal procedure reformed

The maximum amounts of deposit and costs orders increase with the aim of reflecting more accurately the cost to employers of defending tribunal claims. To minimise the cost of tribunal proceedings to the taxpayer, tribunals have a new power to direct that the parties to a dispute are responsible for paying witnesses’ expenses, and employment judges hear unfair dismissal cases alone. To speed up tribunal hearings, witness statements are taken “as read”.

Comment: Please note the new changes and if you require any further assistance please get in touch. That’s what we are here for – to make our clients lives A LOT easier!

When clients unfortunately have to manage a long term sickness absence issue it nearly always results in the employee being sent for an independent Occupational Health examination. We have previously referred clients to a national OH provider with some differing success in terms of the service received so we have put an OH arrangements in place if /when such a service is needed.

Here’s the professional low down on the doc:

• He is an accredited consultant in Occupational Medicine with more than 20 years of diverse experience in public and private sectors
• He is enlisted in the Specialist register of the General Medical Council
• He has worked at senior management levels and in commercial environment
• He completed MBA in Strategic Management in addition to his medical qualifications,
• He seeks every opportunity to understand clients’ expectations and his service is customer focused
• He follows quality standards given by the Faculty of Occupational Medicine i.e. Safe Effective Quality Occupational Health Service (SEQOHS)
• He offers unbiased and objective occupational health advice, which is reliable and consistent.
• He can conduct examinations from Worksop or Lincoln or indeed travel if necessary.

So, as you can see,  Chandra is more than qualified to help you and we hope this arrangement will mean a better service to our clients.

Please note: We are also in talks with an OH Nurse – who will be able to provide pre-employment health screening/assessments etc, so watch this space for further news! Hence we hope to have have both pre-employment and employment OH requirements covered by our new working arrangements.

Comment: If you have any issues that requires either an OH screening or full examination please don’t hesitate to get in touch. The professionals are ready and waiting to help.

•  We can help you go through the recruitment and selection process from start to finish – helping you to find the best candidate and take away all the stress, time and hassle.
•  We can also provide additional services e.g. personality profiling assessments, interviewing guidance, contracts of employment etc should it be required. This option far more cost effective than traditional agencies and advertising externally would be and is a more comprehensive service.
•  We can add CV searches (that candidates have uploaded to the job boards) to our online job board advertising service for a small extra fee. What more could you want?!

Please click on this link for details of our fantastic recruitment service: http://www.thepersonneldept.co.uk/recruitment-selection/

To help you assess the recruitment options a little better the following offers some general guidance.

What are the key differences, costs and benefits compared with the other options available?

Online recruitment is often cheaper than traditional advertising or agency options. Established websites include monster.co.uk and fish4jobs.co.uk; it can be a great way to reach huge numbers of candidates.

Traditionally your recruitment choice has been between using a recruitment agency and taking a DIY, in-house, approach.

Agencies work by you paying a proportion of the employee’s salary as a “finder’s fee”. For example, if the salary you’ll pay the candidate is £35,000 per annum and the agent wants 20%, that’s £7,000 gone before they even start! This is partly why there’s been a surge in the popularity of online job boards, i.e. websites offering an online job advertising service. Our service includes us advertising your vacancy on all the major job boards (as well as any job / industry specific and local job boards too).

1. Keeping it in-house

If you already have a well-established online presence, you may not need to invest any additional spend on recruitment and may choose to advertise yourself. First, advertise vacancies clearly on your website.

For maximum effectiveness, place a recruitment link or ad on your homepage and use easy search criteria if you have a range of jobs available. Another option is to promote vacancies through your business’s social media presence on sites such as Twitter and Facebook, if applicable.

Tip 1. Avoid discrimination. Ensure that vacancies are advertised in an open forum, e.g. on your website, to head off any discrimination issues.

Tip 2. Low cost routes. Don’t forget the traditional low/no cost routes of your local paper, Job Centre Plus and poster advertising, particularly for relatively low-skilled roles.

2. Going online

Online job boards have become hugely popular in recent years as they offer a cost effective alternative to paying the hefty fee a traditional recruitment agency may charge.

You pay a flat rate to advertise your job. Sector-specific job boards are also available.

Benefits of online recruitment

Not only can job boards be much cheaper than traditional recruitment agencies, they give greater opportunity for direct contact with the job seekers you’re targeting. They also still give you ample chance to weed out unsuitable candidates.

3. Employment agencies

Traditional recruitment agencies do still provide a valuable service in the right circumstances but it’s about choosing the right one(s) to work with and ensuring you get the best price possible, whether for a temp or perm worker. As you would expect, prices, and pricing structures, vary hugely across the market but we found that a typical agency fee for a permanent role would be 12.5 – 15% of the employee’s annual salary.  

Comment: For the low cost, advertising the job online and getting us to take on all the hard work so you don’t have to really is a no brainer!

Although any actual strike action may not even take place yet, it seems, the impact is already happening (aided by the MP’s unhelpful comments yesterday leading to panic buying at the pumps) and employers need to have in place contingency plans – particularly if you have a workforce which relies on vehicles or public transport to  get to work or perform their job.

All employers should have contingency, aka disaster recovery, plans in place for events such as fire, flood, computer failure etc. Perhaps strike action should also be considered. Thinking about making plans now may save employers a lot of hassle in the near future.

Employers should consider:

• Is it feasible for people to work from home (think of insurance/ H&S issues)?
• Could employees work from alternative offices closer to home?
• Could employees car share (or mini bus hired!)?
• Could teleconferencing facilities be used (we use Powwow and Skype)?  

Looking on the bright side (if there is one!) this situation could be a good opportunity to look at ways of working more efficiently even when things return to normal.

Other options to avoid disruption?

Employers could also consider

• offering flexible working hours, or
• encouraging staff to take holiday leave if they cannot reach their place of work.

What about employees pay if they can’t get to work?

It’s like the situation where severe weather in Winter stops an employee getting to work. Employers need to decide whether they will pay employees who cannot make it to work because of a lack of fuel. Strictly speaking if your employees do not turn up to do the job for which they are employed you do not need to pay them, but whatever you decide you need to let your employees know – set their expectations in advance to avoid disgruntled employees.

There is a possibility that action could take place as early as the Easter Weekend, and of course the Government has made some plans to ensure that some fuel does get through. However, if the action is lengthy, supplies will be restricted (to emergency vehicles for example) so if you do not have plans in place this is something you should consider as a matter of urgency.

Comment: Take action asap to prevent problems. We can help employers by providing relevant documentation such as a ‘disruption to working hours policy’. Just get in touch and we’d be happy to help.