| Employment Law Update March 2011 |
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New rules for retirement coming shortly At present, employers can still retire members of their staff whose 65th birthdays fall on or before 30th September 2011. The employee must however be given 6 to 12 months notice of this intention by the employer. However, from April 2011 new rules will apply. If the intended retirement date is after 31st October 2011, employers will have to objectively justify their keeping of a contractual retirement age. If this cannot be justified, the dismissal will be unfair. There would also be no limit on the amount of award available for a tribunal to award the discriminated against employee.
Developments on redundancy Unfair redundancy criteria or unfair application of the criteria A recent case in the Employment Tribunal looked at a redundancy selection criteria. It is the Employment Tribunal’s job to assess whether the system adopted by the employer is fair and non-discriminatory, and then also applied fairly. It is suggested that in the more subjective categories of scoring, (e.g. future potential) a note is kept of why the particular score has been assessed. If the Employment Tribunal find that an employer had ulterior motives or intended the system to produce a particular result, or otherwise acted unreasonably, it is likely to conclude that the employee has been unfairly dismissed on the basis of unfair redundancy consultation. Employers must be particularly careful where the selection process involves time-keeping and time off sick. It is important that pregnancy related illnesses and absences for maternity are discounted, and also illnesses due to disability. Maternity Redundancy It is possible to make an employee on maternity leave redundant in the same way as any other employee. However in such circumstances, she is entitled to be given priority for an alternative job that is suitable for her to do. In a recent case the employer decided, without consulting the employee, that she was not suitable for an alternative position. The Employment Tribunal held that there was no positive requirement for the involvement of the employee in the process and it was the decision of the employer to make. The decision, however, must be a fair one and its fairness can be challenged by the employee in the Employment Tribunal. New Employment Tribunal limits There is a new £12,000 limit for statutory redundancy and a new £68,400 limit for the unfair dismissal basic award. Can a partner be an employee? ‘No’ seems to be the simple answer. In a recent case it was held that there was no minimum level of capital contribution that a partner had to make, nor a minimal level of profit entitlement to be considered a partner rather than an employee. It is presumably possible however for the Employment Tribunal to look as to whether the individual was in reality a partner or an employee.
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