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March 2008 Updates

The 2008 Budget

In his maiden budget speech on 12 March, the Chancellor announced reforms to the incapacity benefit system, which will take effect from late 2008. An integrated and simplified Employment and Support Allowance (“ESA”) will replace the current system of incapacity benefits and disability-related income support for new claimants.

The ESA will be accompanied by a new Work Capability Assessment (“WCA”), which will apply to new claimants from October 2008. All existing incapacity benefit claimants will be required to take the WCA from April 2010.

The Government's aim is to increase the focus on a person's capability to work.

The introduction of the WCA has come under criticism from various disability charities, who have accused the Government of attempting to remove more people from benefits rather than give them more support. They believe that more people are going to fail the new assessment and will therefore be denied benefits which they had previously been able to claim.

Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 will introduce a new criminal offence which will enable organisations to be prosecuted for a gross failure to manage health and safety which results in fatal consequences.

The Act, which comes into force on 6 April 2008, provides that an organisation will be guilty of corporate manslaughter if a gross organisational or senior management failure has occurred causing a person's death in breach of a duty of care owed to them.

The offence applies to companies, partnerships, trade unions and employers' associations which are themselves employers, various (but not all) government departments and police forces.

An organisation convicted by a jury of the new offence can receive an unlimited fine and/or a publicity order requiring an organisation to publicise the fact of its conviction and certain details of the offence in a way specified by the court. In addition, the court can set a remedial order, requiring the organisation to address the cause of the fatal injury.

European ruling on IVF and pregnancy

In an Austrian case (Mayr v Backerei und Konditorei Gerhard Flockner OHG), the European Court of Justice (the “ECJ”) has recently considered the issue of whether female employees undergoing IVF treatment are protected from dismissal by the European Pregnant Workers Directive.

Ms Mayr was employed as a waitress and was undergoing IVF treatment when she was given notice of dismissal. On the date she was given notice, fertilised eggs already existed although they had not been transferred and implanted. She claimed that the dismissal had no effect because, under Austrian law, she was entitled to protection against dismissal during pregnancy. The Austrian Courts referred the issue to the ECJ to determine at what point the protection against dismissal took effect.

The ECJ held that the Pregnant Workers Directive did not apply to a worker in Ms Mayr's situation, where the fertilised eggs had not yet been implanted. However, it concluded that she could potentially rely on the European Equal Treatment Directive, which prevents discrimination on the grounds of sex.

What is not yet clear from the ECJ's judgment is whether it would be unlawful to treat a woman less favourably for a reason related to IVF treatment, such as the amount of time she has taken off work, rather than because of the treatment itself. It is quite possible that this would also be protected due to the close association of the treatment with pregnancy. Employers should be mindful of this possibility with regard to employees who are undergoing IVF treatment.


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SRA number 404293