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The Equality Act 2010 The majority of the Equality Act 2010 came into force on 1 October 2010. There are, however, some provisions which will be brought into force or considered further in 2011: Positive action in recruitment and promotion will be brought into force in April 2011. This will allow employers to 'apply voluntary positive action in recruitment and promotion processes when faced with two or more candidates of equal merit.' It now appears that mandatory gender pay reporting for some employers will not be introduced. Instead, the Government intends to develop a voluntary scheme for gender pay reporting in the private and voluntary sectors. This scheme will be aimed, in particular, at those with 150 or more employees. Changes to the Default Retirement Age The Government plans to phase out the default retirement age. We hope they know what they are doing! Currently, the default retirement age is due to be abolished on 1 October 2011. Transitional arrangements are due to come into force in April 2011. This will impact upon employers who wish to give notice of retirement after 6 April 2011 as they will be unable to rely on the default retirement age. The CBI has this month urged the Government to reconsider phasing out the default retirement age, until the "huge uncertainty" and "legislative void" that will result from the move has been addressed. We will keep you updated throughout 2011 of any developments. Extensions to Family Friendly Rights From April 2011, the right to request flexible working will be extended to parents with children under the age of 18. It has been estimated that this will benefit 300,000 people. Secondly, the Additional Paternity Leave Regulations 2010 will affect parents of children due on or after 3 April 2011. The Regulations will allow mothers to "transfer" up to 6 months of maternity leave to their partner. The Regulations recognise that mothers are often the main bread-winner for the family and aims to promote shared parenting. Limits on Tribunal Awards to Increase In February 2011, the Employment Rights (Increase of Limits) Order 2010 will increase the limits on Tribunal awards. The maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400. The maximum amount of a week's pay will rise from £380 to £400. New Statutory Payment Rates From 11 April 2011 it is expected that new rates of statutory benefits will apply: statutory maternity, paternity and adoption pay - standard rates will increase from £124.88 to £128.73 maternity allowance will increase from £124.88 to £128.73 statutory sick pay will increase from £79.15 to £81.60 Cases to watch out for R (On the Application of G) v X School and Others [2010] IRLR 222 An appeal against the Court of Appeal's decision is due to be heard in the Supreme Court in April 2011. It will consider the right to legal representation during disciplinary proceedings. This issue has been considered before in 2009. The case of Kulkarni established that a doctor was entitled to legal representation at a disciplinary hearing. It was decided that Article 6 of the European Convention on Human Rights (a right to a fair trial) applied because the charges against him were of such gravity that, if proved, it would prevent the Doctor from working in the NHS ever again. This new case involves a teaching assistant who underwent disciplinary proceedings for sexual misconduct with a child. The Court of Appeal ruled that due to the seriousness of the charge and the likelihood that it was going to affect his career, the circumstances engaged Article 6 and included the right to legal representation. Even if the Supreme Court uphold the Court of Appeal's judgment, we do not think that the majority of employers need to worry, but it will represent a further erosion of what was once a very clear position, namely that lawyers had no place in internal disciplinary hearings, unless there was a contractual right to such representation. Olds v Late Editions Ltd UKEAT/0321/09 Since 2009, the position regarding when and in what circumstances an employee's continuity of employment is preserved where a buyer purchases a business through a pre-packed sale has been uncertain. In October 2009, in the case of Oakland v Wellswood (Yorkshire) Limited, the Court of Appeal held that continuity of employment was preserved when an employee of a company in administration was employed by the buyer following the pre-pack sale. This issue was considered again in October 2010 by the EAT in the case of Olds v Late Editions. The EAT reserved judgment in this case and it is expected to be delivered in 2011. It is hoped that this decision will clarify the position regarding the application of TUPE when a business, which is in administration, is transferred and the existing employees are taken on by the buyer. Trethowans Employment Law Team is made up of specialist employment solicitors acting for international, national and major regional employers, as well as senior executives and other workers, on all aspects of employment law.
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