Employment Matters Bite Size July 2010

Legislation

The Queen’s Speech 2010
In light of the new coalition Government, the Queen’s speech was awaited with keen interest. The following is proposed legislation that, if implemented, will affect employers:

• National Insurance Contributions Bill – blocking next year’s 1% rise in NI contributions by employers.
• Pensions and Savings Bill – restoring the link between earnings and the state pension and legislating for the phasing out of the default retirement age.
• Welfare Reform Bill – creating a single welfare-to-work programme and making benefit payments more conditional on willingness to accept work.

In addition, there will be a consultation on the extension of the right to flexible working to all employees.

Equality Act 2010
The timetable for implementation of the Equality Act 2010 published by the Government Equality Office has been withdrawn from their website.  With the core provisions previously scheduled to come into force as soon as October 2010, the withdrawal has provoked debate as to the extent of the Act which the Government will actually be implementing.

The Government Equality Office spokeswoman advised that the new coalition Government is not bound by the timetable put in place by its predecessors.  The latest statement is as follows:

“The provisions in the Equality Act will come into force at different times to allow time for the people and organisations affected by the new laws to prepare for them. The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010.”

Bite Size will continue to update with further developments.

Cases

Court of Appeal overturns British Airways’ injunction
The much-publicised injunction obtained by British Airways to prevent industrial action by Unite members, and the subsequent successful appeal by Unite to overturn the injunction, provides a simple illustration of the importance of following the set statutory procedures and being alive to the possibility that “the rules” may have not been followed.  The argument in this instance centred on the communication of the ballot result by Unite to its members in respect of 11 spoilt papers amongst approximately 9,000 other member votes.

Industrial action is governed by legislation which sets down strict provisions to ensure a full and fair procedure is carried out.  As British Airways and Unite demonstrated, leaving any aspect of the exercise open to question can be a costly and time-consuming exercise, not to mention frustrating and also embarrassing if played out in full view of the media.  Considering the cost of industrial action to British Airways, it is always going to be the case that any potential breach by Unite will be questioned and held up to scrutiny by their legal team.

British Airways v Unite

Defining disability relating to mental impairment
The Employment Appeal Tribunal (“EAT”) has set out guidance when considering the definition of ‘disability’ in respect of mental impairment under the Disability Discrimination Act 1995. 

The case concerned a barrister who had previously suffered from bouts of depression and applied successfully to work at a law firm, only to have that offer subsequently withdrawn.  The claimant alleged that the job offer was retracted when she disclosed the details of her condition.  Following an appeal, the following guidance was given to assist in defining mental impairment as a disability:

• Tribunals should focus on the impact of the alleged condition on the claimant’s capacity to carry out every day activities.
• GPs are fully qualified to provide an opinion on whether a patient is suffering from depression given that they are likely to encounter depression on a daily basis.

Definitions under the Disability Discrimination Act 1995 continue to be problematic and the utmost care should be taken in considering the various cases which offer guidance.

J v DLA Piper UK LLP