July 25 2005 Employment Law Enews

Welcome to the latest edition of employment law enews. In this edition we look at the Admissibility Regime and at the Draft Age Discrimination Regulations.

'Admissibility Regime Unjust'

Since 1 October 2004 Claimants have been required, under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the Rules"), to provide the following information on the Claim Form:

Each Claimant's name and address;
• The name of the Respondent;
• Each Respondent's address;
• Details of the claim;
• Whether or not the Claimant is or was an employee of the Respondent;
• Whether or not the claim includes a complaint that the Respondent has dismissed the Claimant or has contemplated doing so; and
• Whether or not the Claimant has raised the subject matter of the claim with the Respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal, and if not why not.

Under the Rules the claim will be inadmissible, and rejected by the Tribunal, if the above information is not provided.

Burton P., whilst sitting alone on an appeal before the Employment Appeal Tribunal ("the EAT"), has recently called the admissibility regime unjust and has encouraged parliament to re-evaluate the rules on admissibility of claims.

In the case in question, the Claimant failed to expressly state in his claim form (he did not use the new ET1 form) that he was an employee, falling foul of the Rules. The Tribunal rejected the claim.

The EAT circumvented the omission, thus allowing the claim to be admitted, on the basis that the information was impliedly set out elsewhere on the form and that, in any event, where the omission is immaterial to the issues to be tried, the Tribunal has the power to accept the claim form under its powers of review.

Draft Age Discrimination Legislation Published

On 14 July the Department of Trade and Industry published the draft Regulations on age discrimination in employment. The new legislation is necessary in order for the UK to comply with its obligations under the European Equal Treatment Framework Directive.

The aim of the legislation is to prevent direct and indirect discrimination, direct being based on a person's actual/perceived age, and indirect being where a provision, criterion or practice is applied equally to all but which disadvantages a certain group (i.e. young people or old people). Indirect discrimination may be justifiable in certain circumstances, but only if the employer can show that the discriminatory provision, criterion or practice is a proportionate means of achieving a legitimate aim. The fixing of a maximum age for recruitment or promotion which is based on the training requirements of the post in question or the need for a reasonable period in post before retirement is cited in the draft Regulations as an example of a situation which may fall within the justification.

The legislation will protect employees, job applicants, people applying for or undergoing vocational training and people applying for higher education or further education courses. It will therefore place obligations on employers, training providers, trade unions and professional bodies.

The main changes which the new legislation proposes are:

• Removal of the current upper qualifying age limit for unfair dismissal and redundancy rights;
• A ban on all retirement ages below 65, unless this can be justified;
• A requirement that employees are informed at least 6 months in advance of their intended retirement date;
• A new duty on employers to consider any request by an employee to continue working beyond their retirement age.

Because many rules in occupational pension schemes are necessarily age based, the draft Regulations contain exemptions which cover most age-related rules. For example, the fixing of an age for admission to the pension scheme or for entitlement to benefits is not unlawful under the draft Regulations.

The legislation is currently at the consultation stage. Consultation will end on 17 October 2005. If it is approved by Parliament, the new legislation will come into force on 1 October 2006. The consultation documents, including the draft regulations, can be viewed on the DTI website: www.dti.gov.uk.

This article copyright © 2005 Steeles Law llp. All rights reserved.