Looking ahead to 2010

2009 has been a bumper year for employment law. We have seen a number of significant developments. Just cast your mind back to earlier in the year, when we saw the repeal of the much maligned statutory dispute resolution procedures, an increase in annual leave, the extension of the right to request flexible working arrangements to parents of children aged 16 and under and, more recently, an increase in the maximum limit on a week's pay from £350 to £380 for calculating statutory redundancy pay and the basic award for unfair dismissal.

We have also witnessed a number of key cases in employment law, too many to mention here but all covered in previous Employment Updates - for example, the decision on the hot topic of holiday and sickness absence (Stringer v HMRC), the long running litigation on the lawfulness of the default retirement age of 65 (Heyday) and the right to legal representation at disciplinary hearings (R (on the application of G) v The Governors of X School).

But what does 2010 hold for employers? Here are our top picks for the coming year:

Equality Bill: the Equality Bill is arguably the most significant and long-awaited piece of legislation in the employment field. It intends to harmonise and strengthen discrimination law. It will also introduce a number of new concepts, including "combined" discrimination, positive action during recruitment and the extension of protection against discrimination on the basis of perception and association. The majority of its provisions are expected to come into force in October 2010.
Additional paternity leave: the Government intends to introduce additional paternity leave, some of which will be transferable from the mother to the father, for parents of babies born on or after 3 April 2011. Employers will need to plan for the new entitlement over the coming year.
Default retirement age: The Government announced earlier this year that its review of the default retirement age of 65, which had originally been planned for 2011, will be brought forward to 2010. The default retirement age is contained in the Employment Equality (Age) Regulations 2006, which provide that an employer may fairly dismiss employees who are over the age of 65 by reason of retirement. This was subject to challenge in the "Heyday" case. While the High Court confirmed that the default retirement age of 65 is lawful, the future of 65 as the retirement age for employees looks uncertain.
The Agency Workers Directive: the Directive aims to protect agency workers by applying the principle of equal treatment in relation to basic working and employment conditions (although, in the UK, this will be subject to a 12 week qualifying period). All member states are required to adopt the necessary laws to implement the Directive by 5 December 2011. The Government intends to bring the draft Agency Workers Regulations 2010 into force in October 2011, which will require preparation during the course of 2010.

Christian registrar loses religious discrimination claim

In the long-running controversial case of Ladele v London Borough of Islington, the Court of Appeal has now confirmed that a Christian registrar disciplined for refusing to conduct same-sex civil partnership ceremonies was not unlawfully discriminated against on the grounds of her religion. This decision provides valuable guidance for employers in both the public and private sectors, clarifying that whilst employees are free to hold a religion or belief, employers are also entitled to consider their wider legal obligations.

Ms Ladele was a registrar of Births, Marriages and Deaths at the London Borough of Islington. When civil partnerships between same sex partners were introduced, Ms Ladele informed her manager that she would not want to officiate at civil partnerships as she could not reconcile her faith with taking an active part in enabling same sex unions to be formed. The council offered Ms Ladele a temporary measure of only having to officiate at civil partnerships which involved no ceremonies. Ms Ladele did not accept the offer and wrote to the council setting out her views.

Ms Ladele continued to carry out her functions as before, making informal arrangements with colleagues so she avoided officiating at civil partnerships. Two gay registrars complained that they felt victimised by Ms Ladele not carrying out civil partnership duties and that she was breaching the council's Dignity for All policy. The council subsequently took disciplinary action against Ms Ladele for her refusal and found her guilty of gross misconduct. Ms Ladele issued proceedings under the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations), claiming that she suffered direct and indirect discrimination and harassment on the grounds of her religious belief. Her claim was upheld by the Employment Tribunal. However, the Employment Appeal Tribunal (EAT) allowed the council's appeal and dismissed Ms Ladele's claim. The EAT considered that the council acted the way it did not because of Ms Ladele's religious views, but because of her refusal to conduct civil partnership duties.

The Court of Appeal upheld the EAT's ruling, agreeing that Ms Ladele was neither directly nor indirectly discriminated against, nor harassed, by being required to officiate at civil partnerships or by any other aspect of her treatment by the council. In relation to the direct discrimination allegations, it noted that there was no evidence on which an Employment Tribunal could conclude that Ms Ladele's religious belief was the reason for the council's actions.

In relation to indirect discrimination, it was agreed that the council's policy to designate all their registrars as civil partnership registrars and require them all to perform civil partnerships would put a person such as Ms Ladele at a disadvantage. However, the Court of Appeal confirmed that the council's actions were a proportionate means of achieving a legitimate aim. It said that the council's legitimate aim was to provide effective civil partnership arrangements and comply with their overarching policy of being an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a non-discriminatory way. The aim of the council's Dignity for All policy was of overarching policy significance to the council and had fundamental human rights, equality and diversity implications, whereas the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she was still free to hold those beliefs and free to worship as she wished.

The Court of Appeal also noted that once it was decided that the Regulations did not entitle Ms Ladele to insist on her right not to have civil partnership duties assigned to her, the council was obliged to require Ms Ladele to perform civil partnership duties by virtue of the Equality Act (Sexual Orientation) Regulations 2007 (which prohibit discrimination on the grounds of sexual orientation in the provision of goods, facilities and services). The council had no alternative but to insist on her performing such duties.

It also noted that, "however much sympathy one may have with someone such as Ms Ladele, who is faced with choosing between giving up a post she plainly appreciates or officiating at events which she considers to be contrary to her religious beliefs, the legislature has decided that the requirements of a modern liberal democracy such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation, subject only to very limited exceptions".

Statutory payments rise, compensation limits fall

The Secretary of State for Work and Pensions, Yvette Cooper, has announced the proposed rates of various statutory payments for 2010. The proposals include a rise in statutory adoption, maternity and paternity pay and maternity allowance from £123.06 to £124.88. It is expected that these changes will come into effect in April 2010. Statutory sick pay is due to remain at £79.15.

The Government has also published the Employment Rights (Revision of Limits) Order 2009, which revises downward a number of compensation limits. From 1 February 2010, for example, the maximum compensatory award for unfair dismissal will fall from £66,200 to £65,300. The reduction in the various compensation limits reflects the decrease of 1.4 per cent in the Retail Prices Index from September 2008 to September 2009. The limit on the maximum amount of a week's pay for the purposes of calculating redundancy pay or the basic award for unfair dismissal will remain at £380 until February 2011 at the earliest.

Equality Bill - progress

The Equality Bill 2009-2010 completed its report stage and had its third reading in the House of Commons on 2 December 2009.

The Bill, which has now been updated, has passed to the House of Lords for consideration. It now includes an amendment which aims to deter employers from asking applicants questions about their health until they have successfully passed an interview or other assessment to show that they meet other requirements of the job.

Code of Practice - time off for trade union duties and activities

ACAS has published the revised Code of Practice on time off for trade union duties and activities. It will come into effect on 1 January 2010.

The Code has been revised, after substantial consultation, to reflect the changing nature of the British workplace and the effect this has had on time off arrangements for trade union representatives.

ACAS has also produced two new guides to complement the new Code of Practice. The first deals with managing trade union representation in the workplace; the second deals with managing non-union representation.

Information Commissioner's Office demystifies data protection

The Information Commissioner's Office (ICO) has produced a new plain English Guide to Data Protection to provide businesses and organisations with practical advice about the Data Protection Act 1998 (DPA) and dispel myths.

The guide is intended to help organisations safeguard personal data and comply with the law. The guide takes a straightforward look at the principles of the DPA and uses practical, business-based examples which help explain the basics of data protection and the key definitions in the DPA.

ACAS helps businesses avoid more than 2,000 employment tribunal claims

ACAS claims it has helped businesses avoid more than 2,000 employment tribunal claims in just seven months since the introduction of the Pre-Claim Conciliation (PCC) service.

Since the introduction of PCC, ACAS has reportedly handled 3,500 PCC referrals from the ACAS helpline and 70 per cent of these were resolved without going to tribunal. Even when the PCC service was not able to settle a dispute, only four in ten referrals progressed into a claim by the end of August.

Number of older workers planning to work beyond state retirement age nearly doubles

The proportion of older workers planning to work beyond the state pension age has increased dramatically in the last two years, according to a survey by the Chartered Institute of Personnel and Development (CIPD).

The Employee Outlook survey of 2,000 working people shows the proportion of people aged 55 and above planning to work beyond the state pension age has jumped to 71%, compared to 40% in a CIPD survey two years ago. Financial factors are the main reason employees of all ages plan to work longer, with 71% of those aged 55 and over saying this is the case.

The research also shows that the older people get, the more likely they are to be planning to work beyond state retirement age, suggesting that reality bites as they get closer to drawing their pension.

Back in the New Year

This is our last Employment Update of the year so we wish you all a Merry Christmas and a Happy New Year!