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March 2009 Updates

The Heydey Appeal

The European Court of Justice has decided that the UK Government is not in breach of the EU Equal Treatment Framework Directive by allowing employers to require employees to retire at the age of 65. Heydey (a branch of Age Concern) had argued that the provisions within the Employment Equality (Age Discrimination) Regulations 2006 permitting "forced retirement" at the age of 65 were incompatible with European law. The case will now go back to the High Court, which has to decide whether the ability to dismiss someone on the grounds of retirement at the age of 65 is a "proportionate means of achieving a legitimate aim" (i.e. whether dismissing someone in those circumstances can be justified, even though it is discriminatory on the grounds of age).

When is "action taken" under the statutory disciplinary and dismissal procedures?

Under the statutory disciplinary and dismissal procedures (which are to be abolished with effect from 6 April 2009), an employer is supposed to write to an employee under stage 1 of the process as soon as it is contemplating taking action against the employee. It should then hold a meeting under stage 2 of the process to discuss the employer's proposed actions. However, the Employment Appeal Tribunal has held in the case of Smith Knight Fay v McCoy that the phrase 'action taken' refers to the act of dismissal rather than the decision to dismiss. In this particular case, an employee was told he was being made redundant and was then given a step 1 letter and invited to a meeting. Applying its reasoning, the Employment Appeal Tribunal held that the employee was not automatically unfairly dismissed due to a failure to comply with the statutory dismissal procedure.

Legal representation at internal disciplinary hearings

The High Court has held that, in certain circumstances, an employee has the right to be accompanied by a lawyer rather than just a workplace colleague or a trade union representative at internal disciplinary hearings. In R (on the application of G) v The Governors of X School, the School commenced disciplinary proceedings against the Claimant for breach of trust as a result of him having kissed a 15 year old pupil. The School also had a duty to report the Claimant to the Secretary of State for Children, Schools and Families to determine whether he should be entered on the register of those who are unsuitable to work with children. The Claimant sought to be accompanied by his legal representative at the internal disciplinary hearings but the School refused. The High Court held that, in light of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life of being entered on that particular register, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient. He should, therefore, have been allowed to be accompanied and, to an extent, represented by a lawyer.

Employment Tribunal statistics

Somewhat belatedly, The Employment Tribunal Service has released statistics for the period from 1 April 2007 to 31 March 2008. These show a 43% rise in Tribunal claims. The highest number of claims involved equal pay disputes, followed by working time claims in second place and unfair dismissal coming in third. The figures also reveal that age discrimination claims increased from 972 in 2006/07 to 2,949 in 2007/08.


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SRA number 404293