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Last year I wrote about Miriam O’Reilly’s successful age discrimination claim against the BBC when she was thrown off Countryfile.  Yesterday it was reported in The Guardian that she is going to leave Auntie and run a women’s support network and seek other challenges. The parting is being reported positively, with Ms O’Reilly not taking the opportunity to stick the boot into the BBC, as she might well be justified in doing.

Leslie Seldon

Age discrimination is a topical for employment lawyers at the moment because this week the Supreme Court is hearing the case of Seldon v Clarkson Wright & Jakes, another age discrimination case which will (hopefully) give guidelines on the circumstances in which it is permissible for an employer to require an employee or, in this case, a Partner in a law firm to retire.  Age discrimination is the only type of discrimination that can be justified.  The question therefore is: what is justifiable?  It is hoped that this judgment will provide some guidance on this thorny issue. More probable of course, as @ljanstis has predicted, is the outcome where it will all be said to depend on the facts in each case (with Lady Justice Hale strongly dissenting), leaving the situation just as unclear as it is at the moment.

Seldon should be finished today and the Judgment, which will be handed down in due course no doubt, will be keenly anticipated. To recap:  the Court of Appeal held that it was possible for a partnership to justify the compulsory retirement of an individual at a particular age if it can be shown that it is a proportionate means of achieving a legitimate aim.  In this case although it was held that forcing Mr Seldon to retire was directly discriminatory, it could be justified on the basis of it allowed associates to come through the ranks and achieve partner status, which also meant they wouldn’t leave to further their careers elsewhere, it facilitated succession planning and reduced the need to remove partners through performance measures.

The Court of Appeal dismissed Mr Seldon’s appeal. It’s an issue that goes to the heart of the age discrimination problem with strong arguments on both sides.  Which takes precedence: an employers’ right to manage its business and encourage new blood or throwing good people out just because they’ve passed a particular birthday?   Personally, I hope Mr Seldon wins because otherwise I can’t see how the age discrimination legislation can have any credibility.

Not that Homer

There is also another age discrimination claim being heard at the Supreme Court – on indirect age discrimination. Homer v West Yorkshire Police is about indirect age discrimination.  Following the introduction of a new career structure he was refused entry to the highest pay band because he did not have a law degree.  Mr Homer brought a claim for indirect age discrimination on the grounds that at 61 years of age he would be unable to gain a law degree before he retired, unlike younger applicants. Again, judgment is awaited.

You can watch the progress of these cases via the Supreme Court website and Sky “Supreme Court Live”, unless you’d prefer to watch the cricket on Sky, which I wouldn’t recommend as England are currently 68 – 4.  Whether the Judges will be as equally decisive remains to be seen.

Related posts:

1. Goodbye House of Lords, Hello Supreme Court
2. Redundancy and Age Discrimination
3. Bankers and Age Discrimination

Age Discrimination Cases At the Supreme Court originally appeared on Jobsworth by Michael Scutt on 19/01/2012.

I was pleased to see that Miriam O’Reilly won her age discrimination claim against the BBC.  At first glance, the fact that she was replaced by a younger man and woman whilst the veteran John Craven remained in place, didn’t look like the easiest of claims with which to succeed.

However, the fact that a BBC executive told her to “watch those wrinkles when HD comes in” and another told her it was “time for Botox” was pretty helpful ammunition for her.

The BBC also has a rather unsavoury history of dispensing with the services of older women; think Moira Stuart and, particularly Arlene Phillips who was booted off Strictly Come Dancing in favour of the undoubtedly more photogenic, but less knowledgeable, Alesha Dixon who was more than half her age.

In the Telegraph yesterday senior BBC executives are reported as being concerned that this ruling will lead to “casting decisions” being made in Employment Tribunals and the loss of “creative freedom” for broadcasters.

Nonsense.

Miriam O’Reilly was put out to pasture because she was clearly seen to be too old, which was dressed up as her not having sufficient recognition with the viewers.

If she had been put on screen at primetime she would soon have become recognised by the viewing public: how else do you get recognition?  Julia Bradbury and Matt Baker had to start somewhere in their careers.  What the BBC really meant was they thought the audience wouldn’t like an older woman fronting the show and because the BBC would claim to be giving us what we want the decision to sack her was therefore our fault.

Loss of creative freedom?  If Eastenders wants to write out a character to suit a plot line there is nothing in this decision to stop them.

The BBC, of whom I’m generally a big fan, needs to take a good look at itself and review how it makes these decisions.  But should we also look at ourselves?  Weren’t the BBC executives reflecting a more widely held prejudice against older people (particularly older women)? Comments welcome, as ever.

No related posts.

Miriam O’Reilly: The BBC Thinks We’re to Blame originally appeared on Jobsworth by Michael Scutt on 14/01/2011.

Are you a recruiter worried about what to write in a job advert?  Or concerned about inadvertently discriminating against applicants on the grounds of age?

It’s a difficult area and care needs to be taken.  However, some comfort can be taken from  a recent  case in the Employment Appeal Tribunal (“EAT”), which held that serial litigants may have to pay costs if they try to exploit the Age Discrimination Regulations for financial gain.

The case before the  EAT involved the same man who is alleged to have issued many cases against recruitment companies and employers alleging age discrimination in their job advertisements e.g “would suit school leaver” or “recent graduate”.  I have written about the issues concerning serial litigants before (see here, here and here).

In this most recent case Mr Justice Underhill gave a robust judgment in dismissing the Appellant’s appeal stating;

“We wish, however, to emphasise that the purpose of the Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.

It is about time that ETs started taking a stronger line on issuing costs orders against litigants, be they Claimants or Respondents, who try to exploit the system for reward. Not only is it wrong per se but it clogs up an already overcrowded ET system that hasn’t got time to hear the genuine disputes before it.

Thanks to @Anyapalmer for bringing this to my attention via Twitter

EAT says claimants who bring claims about ads for job in which they have no genuine interest may face costs orders: http://bit.ly/bUFJkx

12/11/2010 2:51 pm via webReplyRetweetFavorite

@AnyaPalmer

Anya Palmer

Related posts:

1. Age Discrimination – are the floodgates about to open?
2. Redundancy and Age Discrimination
3. Bankers and Age Discrimination

Can Recruiters Relax on Age Discrimination in Advertisements? originally appeared on Jobsworth by Michael Scutt on 15/11/2010.

Dumbledore - final salary pension scheme?

The Government announced last week that the Default Retirement Age is to finally be abolished from next year. This means that by October 2011 it will no longer be lawful for employers to demand that their employees retire at 65. The previous government announced it was going to review the issue last year  veryshortly before the final hearing in the Heyday saga (and did so probably to avoid losing the case and face).

It’s to be welcomed because people should be able to work beyond 65 if they wish. More to the point, with the increasing number of people living longer and most of us making inadequate provision for our retirement, as well as probably being saddled with mortgage and other debts beyond the conventional retirement debt, many of us will have no choice but to continue working. To that extent this isn’t a major liberalising move but a reflection on the fact that we’re in debt and not producing enough children to keep doing the work to raise the taxes. The default retirement age had to go.

The eternally useful magazine Personnel Today reported that the Government is claiming the move will actually save employers money – £45 million rising to £71 million per year apparently – mainly through there being fewer Tribunal claims from older employees claiming age discrimination. Personally, I’m not convinced by this mainly because it is the government’s estimate and they’re probably just trying to assuage employers. Secondly, claims for age discrimination will be replaced by older employees claiming unfair dismissal and age discrimination when the employer tries to terminate their employment on grounds of capability. On the other hand, HMRC will receive more tax revenues from continuing workers – £132 million per year apparently.

The current Age Discrimination rules apply the default retirement age of 65, but provide a procedure whereby those employees who wish to continue working can apply to do so. The employer doesn’t have to consent but, if they refuse the request they need to be able to justify the decision or end up facing a claim for age discrimination. From the proposals put forward now it seems that the employer will still be able to impose a compulsory retirement age but, again, will need to be able to justify it as a “proportionate means to achieve a legitimate end”. It will be a brave employer that does try to do so.

Dumbledore (above) needn’t worry – he’s probably got a Final Salary pension from the Ministry of Magic and, er, he doesn’t exist anyway.

No related posts.

Work ’til you drop originally appeared on Jobsworth by Michael Scutt on 06/08/2010.

There have been some interesting reported cases over the last couple of weeks on a broad range of topics.  For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk.  In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught.  He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing.  Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children.   The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA.  Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector.  For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age.  However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen.  However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector.   In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year.  The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA.   In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section.  In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be. 

 If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

Related posts:

1. Case Round Up 20th November 2009
2. Case Round Up Friday 6th November 2009

Case Round Up 25th January 2010 originally appeared on Jobsworth by Michael Scutt on 25/01/2010.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

Over on the Dale Langley & Co website I have written about the recently reported case of age discrimination by Achim Beck at his former employer, CIBC. Click here for the post.  The case was reported on Times Online on the 29th December.  Although Mr Beck has succeeded with his claim, the Employment Tribunal has not yet made an award of compensation and a “remedies hearing” for that purpose is awaited in due course, unless it settles beforehand.   I’ll keep an eye out for what could be a big award.

Related posts:

1. Race Discrimination and Redundancy
2. Can Recruiters Relax on Age Discrimination in Advertisements?
3. Age Discrimination Cases At the Supreme Court

Bankers and Age Discrimination originally appeared on Jobsworth by Michael Scutt on 13/01/2010.

Hot off the press comes news, via the BBC website,  that the Heyday challenge to the default retirement age has been defeated in the High Court.  This means that it is not illegal for employers to insist that an employee retires on their 65th birthday, although that conflicts with the Age Discrimination legislation.  At the moment I have not seen the rationale for the decision but will post on this again when I have.

I have written about this long running case on several previous occasions.  This looks like the end of it now though because the charities behind the action are not going to appeal.  The government has already said that it intends to review the default retirement age next year, so it may well go in due course anyway. 

This result is bad news though for all the people who have had their claims in the Employment Tribunals stayed (“parked”) whilst awaiting the outcome of this case.  Employers meanwhile will be celebrating. 

If you require any further advice on this (or any other topic) please contact me at michaelscutt@dalelangley.co.uk or 0207 464 8433

Related posts:

1. The latest on Heyday

Heyday loses originally appeared on Jobsworth by Michael Scutt on 25/09/2009.

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Related posts:

1. Leaving your job? Three things not to do before you get your P45

Things employers shouldn't ask … originally appeared on Jobsworth by Michael Scutt on 02/09/2009.