Legal News
The Emergency Budget may have been overshadowed by headlines on England’s World Cup exit, but its impact on HR issues is, nonetheless, significant. Of note is the one-year public sector pay freeze (affecting all staff earning more than £21,000) due to start in April 2011, which has now been extended to 2012. Many view a pay freeze as being akin to a pay cut, and this may have a detrimental impact on morale in the public sector. On the other side of the coin, it may reduce the risk of future pay cuts and protect some job numbers. As predicted, employers’ National Insurance contribution threshold has been raised, whilst companies that set up outside the South East will not have to pay NI for the first 10 employees hired over the next three years. Hopefully, this will help incentivise new small businesses to grow and encourage job creation.
What seems to have particularly ignited public interest is the launch of consultation on the phasing out of the default retirement age and acceleration of the increase in the State Pension Age to 66 from 2016 (referred to catchily by Nick Clegg as their ‘reinvigoration of retirement’).
There are arguments for and against the phasing out of the retirement age: the pro-camp argue (and point us to the example of USA to support this) that with higher numbers of older people in the market, productivity will increase due to experience brought with age. The anti- camp take the stance that if the potential pool of labour increases, then we could be left with a larger core of unemployed people. Hopefully consultation will be swift and a clear decision made.
All in all, the announcements were as expected but we need to be alert to more possible changes ahead in autumn’s Comprehensive Spending Review.
Finally, just as we are all bracing ourselves for the coming into force of the Equality Act (or provisions of) in October, and just as BIS produced its first Single Equality Scheme, it is all up in the air again. The implementation date was, this month, removed from the Government Equalities Office website. We have speculated at to the stance the Coalition will take in relation to the Act pushed through before dissolution of the old government. Will it rise from the embers of the Labour government? Time will tell.
Case Law
It has been a month to remember for discrimination cases:
The EAT decision in J v DLA Piper UK LLP has provided helpful guidance on establishing whether depression amounts to a disability (or not). J applied for a job as a professional support lawyer at DLA. Her offer was removed after she mentioned her history of depression and she brought a claim of disability discrimination. In considering the Tribunal’s decision that she was not disabled because at the material time she was not suffering from clinical depression, the EAT said that the finding that she had depression three years earlier was material to the question of whether she suffered from an impairment at the relevant time because of the ‘likely to recur’ consideration (DDA Sch 1, para 2(2)).
The EAT also set out the approach that should be taken to the ‘impairment issue’. The two questions of (a) whether an individual has a mental or physical impairment and (b) whether that has an adverse effect on their ability to carry out normal day-to-day activities do not have to be approached in that order. The ‘adverse effect’ question can be looked at first if it is logical to do so.
The EAT in Neary v Service Children’s Education & Others addressed the requirement in the DDA 1995 that a Claimant be ‘ordinarily resident in Great Britain’. In the absence of any guidance on this point in the 1995 Act, a Tribunal should apply principles developed from income tax legislation. The focus of inquiries should be on the time of the alleged discrimination, and a person can be ordinarily resident in two countries at the same time. Unfortunately for Mr Neary, home was found to be Germany and the legislation did not cover him – which brings us back full circle to the World Cup. Perhaps Mr Neary had the last laugh after all?
Olivia Sinfield
Olivia Sinfield is an Associate Solicitor at the niche employment law firm PJH Law. You can read their blog here.
All in all, the announcements were as expected but we need to be alert to more possible changes ahead in autumn’s Comprehensive Spending Review.
Finally, just as we are all bracing ourselves for the coming into force of the Equality Act (or provisions of) in October, and just as BIS produced its first Single Equality Scheme, it is all up in the air again. The implementation date was, this month, removed from the Government Equalities Office website. We have speculated at to the stance the Coalition will take in relation to the Act pushed through before dissolution of the old government. Will it rise from the embers of the Labour government? Time will tell.
Case Law
It has been a month to remember for discrimination cases:
The EAT decision in J v DLA Piper UK LLP has provided helpful guidance on establishing whether depression amounts to a disability (or not). J applied for a job as a professional support lawyer at DLA. Her offer was removed after she mentioned her history of depression and she brought a claim of disability discrimination. In considering the Tribunal’s decision that she was not disabled because at the material time she was not suffering from clinical depression, the EAT said that the finding that she had depression three years earlier was material to the question of whether she suffered from an impairment at the relevant time because of the ‘likely to recur’ consideration (DDA Sch 1, para 2(2)).
The EAT also set out the approach that should be taken to the ‘impairment issue’. The two questions of (a) whether an individual has a mental or physical impairment and (b) whether that has an adverse effect on their ability to carry out normal day-to-day activities do not have to be approached in that order. The ‘adverse effect’ question can be looked at first if it is logical to do so.
The EAT in Neary v Service Children’s Education & Others addressed the requirement in the DDA 1995 that a Claimant be ‘ordinarily resident in Great Britain’. In the absence of any guidance on this point in the 1995 Act, a Tribunal should apply principles developed from income tax legislation. The focus of inquiries should be on the time of the alleged discrimination, and a person can be ordinarily resident in two countries at the same time. Unfortunately for Mr Neary, home was found to be Germany and the legislation did not cover him – which brings us back full circle to the World Cup. Perhaps Mr Neary had the last laugh after all?
Olivia Sinfield
Olivia Sinfield is an Associate Solicitor at the niche employment law firm PJH Law. You can read their blog here.
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