The 2006 age regulations are perhaps the most significant new employment rules in recent years and, in terms of case predictions for 2007, the bookies have almost certainly stopped taking bets. Cases challenging certain aspects of the age regulations seem almost certain to appear.
However, age is not the only employment law issue facing business. This year, the courts are going to be busy on a number of fronts, with critical issues from sex discrimination to sick pay set to surface. All have important ramifications for business. Here are some of the key cases to watch during the year ahead.
Burden of proof in discrimination cases
Madarassy v Nomura
The impending Court of Appeal decision in what is one of the longest running cases of alleged sexism in the city is expected early in 2007. The ruling will provide welcome clarity around the degree of adverse treatment an employee is required to establish, to shift the burden of proof on to the employer.
Disability discrimination ‘by association’
Coleman v Attridge Law
This case concerns a claim by Miss Coleman that she was discriminated against due to her son’s disability – a claim of “discrimination by association”. The current rules are not clear,so the question of whether discrimination by association with a disabled person is prohibited by the Disability Discrimination Act 1995has been referred to the European Court ofJustice (ECJ).
A challenge to the default retirement age
Heyday v Secretary of State for Trade and Industry
Heyday is seeking a judicial review of the new age regulations at the High Court, claiming that they do not fully implement the European Directive. Heyday is challenging in three specific areas: the default retirement age of65 that employers can refuse to employ over 65s and that employers are not required to give a reason for refusing to allow an employee to work beyond 65. A ruling is expected inlate 2007.
The decision is likely to impact on the development of age discrimination legislation across Europe, giving guidance on how far countries can include exemptions and justify derogations from the directive in national legislation.
Sick leave and accruing annual leave
HM Revenue & Customs v Stringer & others
This case deals with whether workers on long-term sick leave can designate part of their sick leave as accrued annual leave. The Employment Appeal Tribunal (EAT) held that annual leave does accrue whether or not the worker is working. This decision was overturned by the Court of Appeal, and has now been referred to the ECJ. Employers should continue to pay accrued holiday to those on long-term sick leave until a decision has been reached.
Sick pay and disability
O’Hanlon v Commissioners for HM Revenue & Customs
Earlier cases ruled that where a person is absent for a disability-related reason, the employer may be obliged to make adjustments to its sick pay policy to keep them on full pay despite any contractual sick pay entitlement having been exhausted. However, the EAT confirmed in this case (2006) that an employer would only rarely be obliged to give more sick pay to a disabled person. This came as a relief to employers, but the case has been sent to the Court of Appeal, so the situation could yet change. The hearing is planned for March.
The question of cost to the employer as justification for discrimination may get another airing in the courts in the context of age discrimination, as the cost of providing some benefits such as private health insurance and pension benefits to the over 60s can be prohibitive.
The government plans to carry out a ‘root and branch’ review of the statutory procedures in the autumn. Given the string of cases in 2006 on the interpretation of the statutory disciplinary and grievance procedures, it will be interesting to see how this develops.
Case predictions by Julian Hemming, head of employment, pensions and incentives, Osborne Clarke