The document provides an employment law update regarding recent changes and cases. It summarizes that the default retirement age has been removed, meaning retirement is no longer a fair reason for dismissal. It discusses how employers can still have a contractual retirement age if it can be objectively justified. It also summarizes several recent cases regarding redundancy selection, discrimination, and dismissing an employee with uncertain immigration status.

1. Employment law update
22 June 2011

2. Removal of the Default Retirement Age
Making sense of the changes
Hayley Dear
hayley.dear@bllaw.co.uk

3. The new legal position
No statutory Default Retirement Age (DRA) with
effect from 6 April 2011. This means that:
– retirement is no longer a ‘fair’ reason for dismissal
– now too late to retire someone using statutory
retirement process
– employers can still have a contractual retirement
age but this will need to be objectively justified
which means it must be a “proportionate means
of achieving a legitimate aim”

4. Employer Justified Retirement Age – what
does it mean?
Employers can have a company retirement age if it is
objectively justifiable – known as an Employer
Justified Retirement Age (EJRA)
Can it be objectively justified? Look at:
– Case law on retirement/age discrimination;
– European Court of Justice (ECJ) cases for
guidance on legitimate aims and proportionality;
and
– ACAS Guidance

5. Employer Justified Retirement Age – what
does it mean?
A fact-sensitive approach is likely but examples of
legitimate aims include:
– workforce planning
– recruitment and retention of younger employees
– protecting dignity of older members of the
workforce
When deciding whether or not an EJRA is
proportionate, a Tribunal is likely to consider:
– why a certain age has been chosen
– alternatives available
– consistent application of EJRA

6. Managing the workforce using an EJRA
Even if EJRA is objectively justifiable, still require the
following in order to dismiss fairly:
– Fair reason
Look at case law for “some other substantial
reason” (SOSR) dismissals
– Fair process
consultation
consideration of any request to stay
give sufficient contractual/statutory notice etc

7. Potential issues when managing the
workforce using an EJRA
Difficult to justify an EJRA
Unhappy older workers who wish to continue to
work?
Age discrimination claims
Unfair dismissal claims

8. Managing the workforce without an EJRA
Career progression discussions
Informal performance management
– Keep records
– Clear objectives
– Training
– Appraisals/reviews
Formal disciplinary procedure for capability
– ACAS code and internal procedures
– Warnings
– Support/training
– Time to improve
– Advise if could lead to dismissal

9. Potential issues when managing the
workforce without an EJRA
An increase in workers wishing to work beyond 65?
Inconsistency of treatment
Discriminatory comments/approach
Reluctance to manage older or longer serving
employees?
Inappropriate “without prejudice” discussions?
Age discrimination applies to all ages, not just older
workers

10. Practical tips
ACAS guidance “Working without the default
retirement age”
Training for managers
Amend contracts and policies
Recruitment considerations

11. The Bribery Act 2010
HR implications

12. What does the Bribery Act cover?
Prevents the giving or receiving of a financial or other
advantage to encourage or reward the improper
performance of functions or activities
The Act prohibits:
– bribing
– being bribed
– bribing a foreign public official; and
– the "commercial organisation offence" of failure to
prevent bribery
In force with effect from 1 July 2011

13. Penalties for breach of the Act
Individuals face up to ten years' imprisonment
Commercial organisations (including partnerships)
risk:
– an unlimited fine
– ban on tendering for public contracts
– directors, managers and company secretaries can
also face individual liability (for consent or
connivance)

14. Commercial organisation offence
An organisation will automatically be guilty of an
offence if an "associated person" bribes for its benefit
unless it can establish that it had adequate
procedures in place designed to prevent the bribery
“Associated person” includes employees, workers,
contractors, consultants and volunteers (plus others)
Detailed guidance on procedures that can be
implemented by organisations to prevent bribery
published in March 2011

15. Statutory defence for commercial
organisations
Commercial organisation must demonstrate it had
“adequate procedures” in place to prevent bribery
“Adequate procedures” assessed relative to size and
complexity of the business on the following six principles:
1. proportionality
2. top level commitment
3. risk assessment
4. due diligence
5. communication
6. monitoring and review

16. What should organisations be doing about
the Act?
Consider introducing (or amending if already in
place):
– anti-bribery/ethical conduct policy
– gifts/hospitality policy
– vetting policy/additional recruitment checks

17. What should organisations be doing about
the Act?
Consider amending:
– contracts of employment
– director service agreements
– non-employee contracts
– disciplinary policy
– whistleblowing policy
– expenses policy
– bonus/commission schemes

18. Key developments in 2010 - 2011
Michelle Lawlor
Michelle.lawlor@bllaw.co.uk

19. Overview
Equality Act 2010 – recent developments
Key cases

20. Equality Act 2010 (“the Act”)
Most provisions came into force October 2010
Update on:
– provisions which came into force this year;
– guidance which came into force this year; and
– provisions which will not come into force or which
may be repealed

21. Positive action in recruitment and promotion
Commenced on 6 April 2011
Extended previous duty from training and/or
encouragement to also cover recruitment and/or
promotion
Voluntary
Applies to all of the protected characteristics

22. Positive action in recruitment and promotion
Means that it is not unlawful to recruit or promote a
candidate who:
– is of equal merit
– has a protected characteristic that is under-
represented in the workforce; and
– favouring a candidate is a proportionate measure to
address any disadvantage suffered by those with that
protected characteristic.
“Tie breaker" or tipping point

23. Positive action in recruitment and promotion
Candidates must still be considered on the basis of
their merits
Positive discrimination remains unlawful in the UK
Detailed guidance available at:
http://www.equalities.gov.uk/pdf/Positive%20Ac
tion%20in%20Recruitment%20and%20Promotio
n%20Guide.pdf

24. Practical tips
Continue to recruit or promote candidates on the
basis of their merits
If candidates are of equal merit, consider whether
you wish to use the positive action provisions
(remember these provisions are voluntary)
If use the positive action provisions will need to
demonstrate:
– established a set of objective criteria in order to
determine whether candidates are of equal merit
– employer does not have a policy of routinely favouring
people with protected characteristics; and
– justified and proportionate

25. Guidance which came into force this year
(i) Codes of Practice
Came into force on 6 April 2011
Includes:
– Employment Statutory Code of Practice, available at:
http://www.equalityhumanrights.com/uploaded_fil
es/EqualityAct/employercode.pdf
– Statutory Code of Practice on Equal Pay, available at:
http://www.equalityhumanrights.com/uploaded_fil
es/EqualityAct/equalpaycode.pdf

26. Codes of Practice
Provide detailed explanations of the Act and include
worked examples
Tribunals and courts must take the Codes into
account if relevant

27. Practical tips
Provide training
Update policies

28. Guidance which came into force this year
(ii) Quick start guide about the ban on questions
about health and disability during recruitment
Published on 6 April 2011
Available at:
– http://www.equalities.gov.uk/pdf/110406%20Pre%
20Employment%20Questions.pdf

29. Practical tips
These provisions came into force last year so ensure
that:
– recruitment policies, health questionnaires etc.
have been updated
– training given to managers, etc.

30. Guidance which came into force this year
(iii)Guidance on matters to be taken into account in
determining questions relating to the definition of
disability
Came into force on 1 May 2011
Guidance must be taken into account by the Tribunal
when determining whether a person is disabled
Available at:
– http://www.equalityhumanrights.com/uploaded_file
s/EqualityAct/odi_equality_act_guidance_may.pdf

31. Guidance - Definition of Disability
Focuses in particular on the following four key
questions.
1. Does the person have a physical or mental
impairment?
2. Does that impairment have an adverse effect on
their ability to carry out normal day-to-day
activities?
3. Is that effect substantial?
4. Is that effect long-term?
Gives guidance and worked examples

32. Practical tips
Guidance will be relevant to medical professionals
asked to give opinions so ensure that you update
precedent letters to medical or other health
professionals

33. Provisions of the Act which will not be
brought into force or which may be repealed
Not to be brought into force
– Dual discrimination provisions
Consultation as to whether to repeal
– Liability on employers for harassment of their
employees by third parties over whom they have
no direct control

34. Fulcrum Pharma (Europe) Ltd v Bonassera
and another
Facts:
HR team made up of two employees: (1) HR
Manager and (2) HR Executive
Diminished need for HR Manager; put at risk of
redundancy
HR Manager stated that HR Executive should also
have been in the selection pool; employer refused
Employer did consider "bumping" but did not discuss
it with HR Manager
HR Manager dismissed; brought claim for unfair
dismissal

35. Fulcrum Pharma (Europe) Ltd v Bonassera
and another
Employment Tribunal (“ET”) decision
Unfairly dismissed
Employer's failure to give any real consideration to
the pool and to properly consult meant the HR
Manager's dismissal was unfair

36. Fulcrum Pharma (Europe) Ltd v Bonassera
and another
Employment Appeal Tribunal (“EAT”) decision
Upheld finding of unfair dismissal
When deciding whether or not a more junior
employee should be included in a redundancy pool
(with a view to potentially "bumping" the senior
employee holding the redundant position into the
more junior employee's position) employer should
follow the guidelines laid down in Lionel Leventhal
Ltd v North

37. Lionel Leventhal Ltd v North
Whether it is unfair to dismiss for redundancy without
considering alternative subordinate employment will
be a matter of fact for the Tribunal and will depend on
factors such as:
– whether or not there is a vacancy
– how different the two jobs are
– the difference in remuneration between them
– the relative length of service of the two employees
– the qualifications of the employee in danger of
redundancy; and
– other factors which may apply in the particular case

38. Practical tips
This decision emphasises how important it is for an
employer to consider who should be included in the
selection pool and to consult about the pool as part of
the process
Explore early on in consultation with more senior
employee whether or not he/she would accept a
more junior role at a reduced status and/or salary
Keep paper trail

39. Eversheds Legal Services Ltd v De Belin
Held that inflating the score of an employee on
maternity leave in a redundancy selection process
was sex discrimination against a male colleague

40. Eversheds Legal Services Ltd v De Belin
Facts
Mr De Belin told that he and his female colleague
(who was on maternity leave) at risk of redundancy
One of selection criteria was “lock up”
Period they chose to measure “lock up” was when
female colleague was on maternity leave, therefore
female colleague received a hypothetical score of
maximum points, whereas Mr De Belin received
actual score and minimum points
Mr De Belin received lowest score; put at risk of
redundancy

41. Eversheds Legal Services Ltd v De Belin
Mr De Belin raised a grievance, stating that he was
being discriminated against on grounds of sex
Eversheds maintained that it was legally obliged to
provide a high level of protection for pregnant
women
Mr De Belin dismissed
Brought claims for:
– unfair dismissal; and
– sex discrimination

42. Eversheds Legal Services Ltd v De Belin
ET and EAT decision
Mr De Belin had been unfairly dismissed and
discriminated against on grounds of his sex
Pregnant employees and those on maternity leave
should only be treated more favourably than male
colleagues to the extent that this is reasonably
necessary to remove the disadvantages occasioned
by their condition
In this case, there were other less sex discriminatory
alternatives available, such as measuring both
employees' actual performance during the period
before the woman's maternity leave started

43. Practical tips
When considering whether to make an employee on
maternity leave redundant, assess the possible ways
in which the disadvantages of a maternity absence
can be mitigated, rather than automatically favouring
the female employee above all other employees (ie
both women not on maternity leave and men)
Go no further than what is reasonable and
proportionate in the circumstances

44. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Fairly dismissing an employee with uncertain
immigration status
– held that an employer's decision to dismiss an
employee with (what the employer considered to be)
uncertain immigration status was reasonable

45. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Facts
Claimant was Mauritian passport holder
Came to the UK with a work permit in 1992
In 1997, she was refused further leave to remain
She appealed
Received letter from the UK Border Agency (“UKBA”)
dated 7 July 1997 ("the 1997 letter") which confirmed
that she had lodged an appeal against the refusal
and stated that she was entitled to carry on taking
paid work in the UK until her appeal was determined

46. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Began working on a permanent basis for the Trust in
2003
Used the 1997 letter as evidence of her right to work
in the UK
The Trust was “tipped off” in 2006 that the Claimant
was an illegal worker
Made enquiries with the UKBA
Informed by UKBA that the Claimant’s husband had
made an application for indefinite leave to remain and
named the Claimant as his dependant in 2003

47. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Following introduction of the Points Based System in
2008, the Trust made further enquiries regarding the
Claimant’s immigration status
Contacted the UKBA’s Employer’s Checking Service
UKBA stated that it was unable to confirm that the
Claimant had an outstanding application and
therefore it was unable to confirm whether the
Claimant had the right to work in the UK

48. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
The Trust was concerned that it was illegally
employing the Claimant, therefore it:
– suspended the Claimant without pay
– contacted the UKBA again; was told that the
Claimant’s husband’s visa application had been
rejected – made no mention of the Claimant’s
own outstanding visa application; and
– invited the Claimant to a disciplinary hearing

49. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Claimant requested that disciplinary hearing be
postponed
The Trust agreed but wrote to the Claimant regarding
the new date using the wrong postal address
Proceeded with the disciplinary hearing in the
Claimant’s absence and dismissed her without notice
pay
Claimant given the right of appeal
Claimant lodged appeal out of time as per the Trust’s
Disciplinary Procedure; the Trust refused to hear
appeal

50. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
Claimant brought claims for:
– unfair dismissal; and
– breach of contract for failure to pay during
suspension and notice pay
The Trust subsequently conceded that it should
have paid the Claimant during suspension and her
notice pay

51. Kurumuth v NHS Trust, North Middlesex
Hospital Trust
EAT decision
Immigration status was to be determined by specialist
immigration courts, not the employment tribunals
Upholding the ET decision, EAT held that the Claimant’s
dismissal was substantively fair on the ground of “some other
substantial reason” as the Trust did not receive a clear
statement from the UKBA regarding the Claimant’s immigration
status – the Trust had acted reasonably as had genuine belief
that the Claimant was not entitled to work in the UK
However, held that Claimant had been unfairly dismissed as no
fair procedure followed, although held that even if fair procedure
followed would have made no difference to the outcome,
therefore Claimant only awarded basic award pursuant to
Polkey

52. Practical tips
Each case will turn on its own facts
Employers must follow a fair procedure

53. Immigration update
What employers need to know
Gavin Jones
gavin.jones@bllaw.co.uk

54. Where are we?
Legislation
Worker Registration Scheme
Applications to Permanently Settle in the UK
Tiers for Fears
On the horizon

55. Legislation
Nine Statutory amendments to the Immigration Rules
since June 2010

56. Worker Registration Scheme
From 1 May, Czech Republic, Estonia, Hungary,
Latvia, Lithuania, Poland, Slovakia and Slovenia full
EU nationals
Restrictions on Bulgaria and Romania still apply

57. Applications to stay permanently
Change in calculation of qualifying period
Must be free of unspent convictions
Change in earnings requirements

58. Tier 1 – non - employer specific
Closure of “General” - 1,000 “Exceptional Talent”
visas to follow
Amendments and improvements for Investor and
Entrepreneur
Closure of Post Study Work visa from April 2012

59. Tier 2 – sponsored employees
Cap – 20,700 – misleading
Restricted or Unrestricted?
Inter Company Transfer now has 4 sub-categories
Minimum salaries £20,000, £24,000 or £40,000
Inter Company Transfer route now 12 months service
overseas
Inter Company Transferees will not be able to stay
permanently
National Qualification Framework Level 4 (Degree
level) now required

60. Tier 4 - students
English language requirement
Maintenance requirement
Restrictions on dependants
Restrictions on working and work placements

61. Tier 5 – Temporary Workers
Monaco joins list for Youth Mobility Scheme –
Australia, Canada, Japan & New Zealand

62. On the horizon
Less than expected take up of unrestricted
Certificates of Sponsorship
UKBA looking at: Romanian and Bulgarian
workers; Investors; Domestic Workers; Sole
Representatives; post-study work ability for Students;
Tier 5 and Family members
Prosecutions – not enough yet!