By 2020, one in three workers will be over 50 years old. With the increase of the retirement age, phased retirement, or employees just not wanting to retire, the workforce will be older than ever before, and with this comes many rewards for organisations but it can also prove tricky for employers to avoid discrimination.

As people live longer, they are likely to work longer too, and so it is not surprising that an increasing number of employees are planning to work past retirement age. From March to May 2019, more than half of the annual increase in the number of people in work occurred among those aged from 50 to 64 years, according to Office for National Statistics (ONS) figures. An ageing workforce brings with it a number of legal and ethical implications that employers need to consider.

  • The Equality Act 2010 provides protection against different types of age discrimination, including:
    less favourable treatment because of age (direct discrimination);
  • the application of a provision, criterion or practice (PCP) that disadvantages a particular age group (indirect discrimination);
  • harassment related to age;
  • victimisation.

Since the elimination of a compulsory retirement age in April 2011, it has been up to individual employers to decide whether or not to set retirement ages within their organisations. It is only possible to fix a retirement age for a job, and avoid this being discriminatory, if certain legal requirements are met. A fixed retirement age, which is on the face of it both directly and indirectly discriminatory, can be objectively justified if it can be shown that it is a proportionate means of achieving a legitimate aim.

For direct age discrimination to be justified there must be a legitimate social policy aim, such as fairly distributing employment opportunities to both younger and older workers, or the efficient planning of the departure and recruitment of staff. Further, employers cannot just rely on their own private interests/business needs and they must also be able to support these aims evidentially and empirically.

Businesses tend to wait to be approached about retirement age by an employee because the need to set a retirement age can be very difficult to prove. Tribunals certainly set a high bar in this regard.

Ethical issues for employers
HR practitioners are likely to experience an increasing number of ethical dilemmas in this area. As workers live longer and working lives are extended, organisations need to tackle age discrimination in the workplace and work to change the negative stereotyping of older workers when it comes to both retention and recruitment.

Key considerations

  • The needs of older and younger workers may change at different career stages, but do not make assumptions. It is important to treat all workers as individuals. Consult with workers, taking a consistent approach with everyone, to get an understanding of their career goals so that you can plan accordingly;
  • Promote health and wellbeing and encourage workers to maintain good health. This will become increasingly important within the ageing workforce;
  • Set up initiatives to retain experienced workers and best utilise their skills and experience. For example, encourage coaching, training and mentoring of more junior staff;
  • Flexible working is key. Workers need flexibility at different stages of their working lives and a workforce made up of a diverse range of ages can provide the balance organisations often seek;

For further advice and support on this matter speak to a member of the Solve.HR team

Appeal court upholds claim of (direct) discrimination, claimant was awarded £26,616 because she was perceived to have a disability. It serves as a reminder not to make judgements or assumptions.

The case of Chief Constable of Norfolk v Coffey earlier this year resulted in a key ruling by the appeal court as they upheld a claim of (direct) discrimination because the claimant (Cofey) was perceived to have a disability. The court confirmed that it is discriminatory to refuse employment because of a perception that a health condition will affect a person’s ability to work in future.

Lisa Coffey was a police officer in Wiltshire Constabulary and suffered from a degree of hearing loss and tinnitus which did not affect her ability to do her job and was not considered a disability under the Equality Act.

In 2013 she applied for a transfer to Norfolk Constabulary. She disclosed the hearing loss and the results of a functionality test that showed she was able to perform her existing role. However, the constabulary rejected her application because her hearing fell “just outside the standards for recruitment” published by the Home Office. The constabulary was concerned that the hearing loss would have a substantial impact on Coffey’s ability to perform day-to-day activities in future.

Coffey did not consider herself a disabled person so brought a claim of discrimination on the basis that the force had treated her less favourably because it perceived she had a disability. In 2016 her claim for direct disability discrimination was upheld by an employment tribunal. It found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Coffey’s ability and had not acted on a recommendation from a medical adviser about the need for an at-work test.

The tribunal found that she had been unlawfully discriminated against on the grounds of “perceived” disability and was awarded £26,616.05 in compensation.

Norfolk Constabulary challenged the decision at the Employment Appeal Tribunal, which agreed with the previous judgment that the constabulary had been wrong to reject Coffey’s application for a transfer on the basis she would have been unable to perform her role In future.

The Court of Appeal upheld both decisions. In a judgment published in the summer of this year it said there was no evidence that front-line police officers needed to have particularly acute hearing. The court agreed that it was unlawful to deny Coffey a role at Norfolk Constabulary, as she had been able to perform her daily duties without problems in Wiltshire. The court rejected suggestions raised in evidence that front-line duties in Norfolk were somehow different to those in Wiltshire. It also found that Norfolk had failed to take into account the highly material Home Office standard and accompanying circular and guidance.

The court stated that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law. It therefore does not depend on knowledge of disability discrimination law but on whether the employer perceived that person “to have an impairment with the features which are set out in the legislation”.
Coffey continues to work for Wiltshire Constabulary.

This case serves as a reminder to employers to be wary of making judgements or assumptions about workers, for example thinking that someone who has problems with depression or anxiety might not be up to the challenge of a stressful job. People who are unsuccessful in applications for jobs and promotions and might be unable to say with confidence that they are currently disabled, should still not suffer a detriment or less favourable treatment because an employer or prospective employer perceives that they are.

For further advice and support on this matter speak to a member of the Solve. team

It’s the season to be jolly!!

Employers hold a duty of care towards their employees throughout the employee’s employment and this extends to events such as the Christmas party. It’s important that certain factors are considered by employers, such as: –

  • Setting clear guidelines of the behaviour expected at the Christmas party, such as violence, unwanted conduct, discriminatory remarks and excessive alcohol consumption, will not be accepted.
  • Reminding all employees of the policies and procedures in place and the consequences of their actions e.g. disciplinary.
  • Limiting the amount of free alcohol, supplying enough food and providing non-alcoholic drinks can support in limiting the risk for employees becoming too merry. It’s important that employees who are under the age of 18 do not drink. Employers should also take into consideration those employees who do not drink alcohol or eat certain foods.
  • Ensuring that post party travel arrangements are taken into consideration to reduce the risk of employees on their journey home.
  • Asking employees not to post on social media, such posts could cause embarrassment or offence to others and if an employee’s photo appears on social media and they haven’t given their consent, could raise certain data protection issues.
  • Making employees aware that absence or lateness will not be tolerated the morning after the Christmas party and will be dealt with via the disciplinary policy. Furthermore, employers should be aware of employees who do turn up to work the next day drunk, especially if their job involves driving or operating machinery.

Christmas is both a Christian holiday as well as a state holiday, holding an event at Christmas is not likely to fall foul of the Employment Equality Regulations 2003, however, if the Christmas party is presented as a “boozy night out” this could potentially seclude employees whose faith could prevent them from attending such night out, which would be discriminatory. This also extends to female employees who may have childcare commitments as you could risk having a sex discrimination claim made against the company.

In the case of Nixon v Ross Coates Solicitors, an employee claimed constructive dismissal, sex and pregnancy discrimination and harassment after malicious gossip was spread about her pregnancy following the Christmas party. Nixon had been seen by employees kissing another employee and going into a hotel room with him. The HR manager had knowledge of the employee’s pregnancy and began gossiping with other employees as to whom the father was. The employee raised a formal grievance, however, this wasn’t dealt with accordingly and on appealing this case, the EAT held that the tribunal was wrong in not making findings of pregnancy related harassment and discrimination and also sex discrimination. Interestingly, the fact that the employee had put her sexual life into the public domain, and acted in a way which was bound to provoke gossip, did not assist the employer in relation to either liability.

This should be served as a reminder to all employers that precautions need to be taken both during and after the Christmas party. Employers should have both procedures and policies relating to bullying and harassment, disciplinary and grievance and also discrimination to ensure that they are in a better position to deal with these issues, if and when they arise.

If you would like advice on the Christmas Party or require your policies and procedures to be updated, please contact a member of the Solve.HR team.

IR35 tax legislation has been in force since 1999. The primary purpose of the IR35 legislation is to identify individuals whom are working on a self-employed or contractor arrangement who are in fact classified as a “disguised employee” working for the fee-payer/employer. Therefore the IR35 regulations identify instances of this nature whereby there has been an avoidance of Tax and National Insurance payments by fee-payers/employers and raises the question of employee employment rights. Since 1999, within the private sector it has been the responsibility of the self-employed worker/contractor to confirm the status of their worker arrangement if challenged by HMRC, whereas, within the public sector it has been the responsibility of the “fee-payer”.

From 6th April 2020, the legislation extends the responsibility to the fee-payer not only in the public sector but also to businesses of a certain size, within the private sector. This is a substantial shift of responsibility, which is likely to lead to an increase in awareness, exposure and multiple high profile case studies.

It will be the responsibility of the fee-payer to determine the status of the worker/contractor and to confirm this status in writing between both parties.

HMRC can instigate investigations into both fee-payers and self-employed/contractors at any time.
In addition, a claim could be raised in an employment tribunal for breach to statutory rights if a claimant was to infer they should be considered as a worker or employee. If a claimant was successful in being ruled to be an employee they could in turn raise claims in an Employment Tribunal for; unfair dismissal or breach of statutory rights including the right to the minimum wage, holiday, sickness and family leave and pay and discrimination.

There may be a fear from the fee-payer to suggest that employing all workers/contractors as employees may reduce the risk of failing IR35 Compliance. This is not the intention of the regulations. Employing an employee comes with Employer Tax and National Insurance payment responsibilities along with Employee Rights to all other Statutory and Company benefits provisions along with the accrual of Employment Rights; therefore the genuine contractor working arrangement could continue to be better suited for the fee-payer.

There are key indicators to assist with determining if the fee-payer and worker are likely to be operating within or outside of the IR35 regulations. Solve. can support you with determining these differences and can advise you on the requirements of the “fee-payer” in order to support with status determination. If you operate with service agreements for services provided, such as consultants, please do get in touch.

To find out more about IR35 Tax Regulations please speak to a member of the Solve. Team.

You may decide it is necessary to suspend an employee from work whilst a serious disciplinary matter is investigated. Suspension should not be used as a disciplinary sanction, if an employee is suspended, it is not an indication of guilt.

Most disciplinary procedures will not require suspension. An employee will usually be able to continue doing their normal role while the matter is investigated. Suspension should never be an automatic approach when dealing with a potential disciplinary matter.

The right to suspend an employee is normally set out in the contract of employment or employee handbook. Usually, a period of suspension will be on full pay, unless the contract of employment provides otherwise.

Why would you want to suspend an employee?
The reasons why you might suspend an employee could include:

• to highlight to the employee the seriousness of the matter and potential breakdown of trust;
• to immediately stop the employee carrying on the gross misconduct that is being alleged;
• to stop the employee interacting with other employees or clients/customers, which may otherwise cause a detrimental effect of the business;
• to enable you to properly investigate the potential disciplinary matter without any hindrance;

How long should the suspension last?
Any suspension should be for the shortest period of time whilst an investigation takes place, and you should regularly update your employee as to how long the suspension is likely to last.
If you suspend an employee without any reasonable grounds to do so, or you take an inordinate amount of time to carry out an investigation (without explanation), the employee may have a case for constructive dismissal.

To find out more about when to consider suspension and the correct process to follow, please speak to a member of the Solve. Team.

In June the Court of Appeal ruled that voluntary overtime payments must also be included in holiday pay calculations. It agreed with the Employment Appeals Tribunal’s ruling in the Flowers and others v East of England Ambulance Service NHS Trust case where ambulance workers claimed that two types of overtime should be included in holiday pay calculations; “non-guaranteed” overtime taken when their shifts overrun and any voluntary shifts they choose to take in advance.

The original ruling at Employment Tribunal held that voluntary overtime should not factor into holiday pay calculations, however the ambulance staff successfully appealed this ruling which then resulted in the East of England Ambulance Service NHS Trust taking the case to the Court of Appeal but the judgement ruled in agreement that voluntary overtime should be included in holiday pay if there are regular overtime payments.

When calculating holiday pay it’s important to remember that the following payments must be included in at least 4 weeks of paid holiday:

• Regular overtime payments (both voluntary and compulsory)
• Contractual commission
• KPI bonus payments

This is to ensure that employees’ salaries are not unduly affected when they take holidays and employees are not discouraged from taking their European entitlement of 4 weeks’ annual leave, in other words they should receive the same amount of money as if they had attended for work. This ruling has been in place for some time now, however many employers have not yet implemented it so the government plans to publicise this in the coming year as part of the Good Work Plan so that employees are more aware of their rights.

As part of the Government’s Good Work Plan, recommendations were made to extend the reference period for determining average pay in relation to statutory holiday from 12 weeks to 52 weeks. This is being brought into force by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 and will apply from 6th April 2020.

A consequence of this will mean that contracts of employment templates will have to be updated to reflect the changes to holiday pay calculation.

To find out more about holiday pay, how to calculate it and ensure that your contract templates are compliant please speak to a member of the Solve. team