Employment Law

Articles from TBA legal advisor Rachel Flynn of Taylor Vinters.

AGE DISCRIMINATION- What does it mean for me?

The latest in a long line of politically correct discrimination legislation – age discrimination ­ is a reality in the UK from 1 October 2006. While the policy grounds for this are sound (Does it really make sense to dispense with your entire workforce at 65? Why assume an individual is unable to do a particular job on account of their age?) predictably it has been all over the headlines for the wrong reasons, with HR advice being that banter about staff having a ‘senior moment’ or being ‘wet behind the ears’ must be outlawed!

It remains to be seen how all this will settle down in practice, but this is an area where employers need to be aware that long ingrained practices may fall foul of the new law.

A prime example is in advertising for new positions. Employers are wise to sex discrimination issues – most advertisements are for ‘stud hand’ or ‘yard person’ now ­ but what about ‘stud manager with at least 10 years experience’ or ‘lively and enthusiastic stable staff required to join young team’? Both of these are discriminatory on grounds of age – the first does not welcome the well qualified but younger applicant ? the second is plainly looking for a younger person.

Such discrimination will be prohibited not just in the workplace (terms of employment/engagement, opportunities for promotion etc) but also in recruitment, interviewing and the offering of jobs. Like the other ‘discrimination’ claims, direct discrimination, indirect discrimination, victimisation and harassment are all outlawed.

It may be possible to justify discrimination objectively if it is ‘a proportionate means of achieving a legitimate aim’. So, where a role requires a lot of physical strength and endurance or there are legitimate safety concerns (perhaps teasing or covering mares) this may be a possibility but you would need to prove to an Employment Tribunal that the practice is the least discriminatory way of achieving the health and safety aim.

The upper age limit for bringing an unfair dismissal claim has also been abolished (formerly 65). So can an employer still retire staff who do not want to go? Of course they can. In general terms, retirement will be the (fair) reason for dismissal provided (a) the employee is 65 or more ? (b) between 12 and 6 months notice is given to the employee ? and © the employee is informed of their right to ask to stay on and the ‘duty to consider working beyond retirement’ procedure is followed.

So what do employers need to do as a result of this new legislation? Here are a few suggestions to consider:

• Is your retirement age less than 65? This is likely to require a change, in consultation with the workforce.
• Check contracts, benefits and policies to eliminate unjustified age related references (e.g. preferential benefits for older employees).
• Make sure your Equal Opportunities Policy covers age discrimination.
• Introduce a retirement policy which includes a “duty to consider” procedure for dealing with requests to work beyond retirement.

As with all employment law issues, there are resources available free of charge to keep employers and employees up to date with their employment rights. ACAS and the DTI’s websites are particularly helpful: http://www.acas.org.uk
and http://www.dti.gov.uk/employment and further advice is available from the TBA’s helpline – contact Caroline Turnbull at Stanstead House who will refer members on to me at Taylor Vinters if it is appropriate to do so.

TAKING STAFF ON- First Things First

They say you only get one chance to make a first impression. As in life, so in the employment relationship. The way in which the interview is conducted and how things go in the first few days of a new job often set the tone for the rest of the engagement.

Although staff will collect the full set of employment rights only when they have a year's continuous employment, some rights begin before the employment relationship starts and Tribunal claims can arise from incautious advertisements or throw away comments at interview.

All too often prospective employers' stereotypical preconceptions are what get them into trouble. Employment law requires that interviewers approach each interview as a clean slate without (for example) preconceptions about engaging someone of a certain age, sex, race, religion, sexual orientation or with/without a disability. An assumption that an individual cannot do the job because of their sex, race or disability certainly cuts down the potential candidates, but often offends discrimination law in the process and may result in a claim.

Remember that not everyone who works for an organisation is an employee. The stud worker who helps out during the foaling season and sends an invoice for his time each month is likely to be self employed, while the cleaning lady who does the office twice a week may well be an employee.

Different workers will have different rights and responsibilities. For example, the Working Time Regulations (paid holiday, rest breaks etc) apply to everyone except for the truly self­ employed. The right to claim for unfair dismissal is available only to employees. Is your worker an employee? Are they fixed term, casual or part time? Even then the label you apply to the arrangement is not conclusive, an Employment Tribunal can consider all the relevant circumstances and draw its own conclusions.

Other issues to consider at the start of employment are:

• Statements of terms and conditions: Employers are obliged to provide an employee with a statement of their main terms and conditions within 2 months of starting. This covers basics like their job title, pay, hours, place of work, holiday and sickness arrangements. A failure to provide this can mean that a further award of 2 – 4 weeks' wages is added to any claim.
• Is a prospective employee entitled to work in the UK? Employers can be criminally liable if they fail to carry out the necessary checks. The Home Office website gives employers guidance on is necessary in this regard.
• Induction. 60% of early leavers attribute their leaving to a lack of induction. When working with horses, health and safety clearly ought to be top of the list with previous experience and qualifications (if appropriate) in the spotlight as well as the stud's own rules on smoking, wearing of helmets, steel toe­capped boots etc. All this and more can be covered in an induction process. This is also an opportunity to collect bank account details, NI number and details of an individual's next of kin in case of emergency.

This is a snapshot of some of the issues prospective employers need to consider at the start of the employment relationship. As with all employment law issues, there are resources available free of charge to keep employers and employees up to date with their employment rights. ACAS and the DTI’s websites are particularly helpful: http://www.acas.org.uk
and http://www.dti.gov.uk/employment and further advice is available from the TBA’s helpline – contact Caroline Turnbull at Stanstead House who will refer members on to me at Taylor Vinters if it is appropriate to do so.

ARE YOU READY FOR THE SMOKE-FREE WORKPLACE?

The smoking ban comes into force in England on Sunday 1 July 2007, from this date, it will be a criminal offence to smoke in virtually all enclosed public places, workplaces and public/work vehicles. Smokers can be fined up to £200, while the person who controls/manages smoke free areas could be fined up to £2000 for failing to prevent smoking. There are also stiff penalties for failing to display relevant signage.

The ban applies to all work or public premises that are “enclosed” or “substantially enclosed” which in broad terms means any premises with a ceiling, unless more than 50% of the wall area is open to the outside (doors and windows are discounted when calculating this area).

This legislation is the English equivalent of the ban that has been in force in Scotland, Wales and Ireland for some time. Some organisations – for example Newmarket racecourse – have implemented an indoor no smoking ban, which is in force now.

There will be an impact on most employers, even those whose premises are already no smoking. So what will employers/those with the management of public places have to do?

• Prevent smoking in smoke free areas
• Make people aware of smoke free areas, by
  • Displaying no smoking signs (of a statutory design) at specified locations ?
  • Removing indoor smoking rooms ?
  • Training staff regarding your expectations and the law ? and
  • Consider introducing a no smoking policy to say where smoking allowed.

Private cars and dwellings are not covered by the ban, but all enclosed/substantially enclosed workplaces (which includes cars, lorries and vans) are. So the office attached to the house must be smoke free while the rest of the private house is exempt.

Private accommodation provided for staff is exempt, but a hostel or lounge/kitchen used for the purpose of work should be smoke free. Smoking outside is fine, but employers may not want smokers to congregate outside their main entrance and have the option to specify rules like this in their own no smoking policy. Government approved signs and lots more information on this is available from http://www.smokefreeengland.co.uk

The law allows little or no room for manoeuvre, yet the success of this legislation will depend on how well it is enforced by the authorities and the public. In 2005, 91% adults supported restrictions on smoking in restaurants ? 87% at work and 65% in pubs so public support for smoke free legislation is likely and those lighting up could find themselves out in the cold.

This article together with further employment law information is available on the TBA Employers' Register site, which can be accessed from the TBA website. Visit the Stud Staff and Employers Project page to Register or Log­on.