Equality Focus

Recession disproportionately affecting 'older' employees, survey warns

The Age and Employment Network ('TAEN') has released a survey detailing the impact of the recession on 'older' jobseekers. The survey found that around 360,000 people aged 50 and over are now looking for work. According to the research, in the six month period from October 2008 – May 2009, there was a 15% increase in redundancies amongst older employees, compared to the previous six months from January – September 2008, before the economy started to deteriorate. The survey also reports an increase in respondents feeling that ageist attitudes are commonplace amongst employers - 72% of respondents believing that employers thought that they were "too old" compared to 63% before the recession.

Only seven per cent of those surveyed believed that they had never experienced age discrimination when looking for work, and over half of respondents felt that they had at some point been discriminated against on the grounds of their age.

Feedback from those surveyed confirmed that a large number believe the law, as it relates to recruitment, is impossible to police. Chris Ball, Chief Executive of TAEN, is reported to have said “We… see here more evidence that, despite the introduction of legislation in 2006 outlawing age discrimination in employment, it has certainly not eradicated discrimination in recruitment - particularly when times are tight and where it is difficult for an individual to prove discrimination and take action".

Comment:
Employers should be aware of the different forms that age discrimination may take. Age Discrimination can be direct, for example making a decision on the basis of a person's actual or perceived age, or indirect, where an apparently unbiased decision was made on the basis of criteria which by their nature would disadvantage older applicants. It is therefore important to assess carefully the criteria upon which employment-related decisions are made. The growing perception that employers have increasingly ageist attitudes, and the way in which the burden of proof will pass to an employer, once the claimant is able to establish a prima facie case of age discrimination, are further reasons to ensure that decision-making procedures do not fall foul of the law.

The Equality Bill, its salary disclosure obligation and that "glass ceiling" – where are we now?

The University of Cambridge have recently researched employment and pay in 10 European Countries. One of their findings was perhaps surprising: women in the UK are beginning to take the lead from men in high-status jobs such as law and medicine.
Their other finding however is well known and not a surprise: men are still paid more than women. Their research highlights that dangerous manual work, typically carried out by men, is often better paid than the "higher status" work which is typically carried out by women (e.g. teaching and nursing).

Perhaps the Equality Bill, designed to promote fairness and equality (by for example its proposed salary disclosure obligation), will work towards solving the pay differentials. Whether such salary transparency will assist the government's aim of closing the pay gap or rather unleash conflict within the workplace will be watched with interest.

News

Pay rise for apprentices

Apprentices are exempt from the National Minimum Wage. However, they must be paid at least the minimum contractual payment. This rose from £80 to £95 per week on 1 August 2009.

Apprentices in the UK earn on average £170 per week but it is believed that around 26,000 apprentices will benefit from this pay rise. Brendan Barber, General Secretary of the Trades Union Congress, said that "the majority of apprentices are paid well above the minimum rate. But for many trainees...struggling on around £80 a week, an extra £15 will go a long way."

Recent Cases

TUPE – Pre-pack administrations
Oakland v Wellswood (Yorkshire) Ltd

Mr Oakland (O) was employed by Wellswood Limited (WL) as General Manager of a fruit and vegetable wholesaler. After trading for three years, WL entered into administration. Following the appointment of joint administrators, WL's assets were sold to Wellswood (Yorkshire) Limited (WYL), who also took on some of WL's employees, including O. The administrators concluded that it was not possible to rescue WL as a going concern. O brought a claim for unfair dismissal after he was dismissed by WYL but his claim was rejected on the grounds that he had been employed by them for less than a year. An employment tribunal found that a pre-pack administration business sale did not result in automatic transfer of employees under Regulation 4 of TUPE as WL was the subject of insolvency proceedings under the supervision of the administrators which had been initiated with a view to the liquidation of WL's assets. As a result, the tribunal held that O was precluded by Regulation 8(7) of TUPE 2006 from relying on the transfer provisions of TUPE to establish the necessary continuity of service to claim unfair dismissal. The EAT upheld the tribunal's finding and O appealed, arguing that the transfer of undertakings from WL to WYL had not broken his continuity of employment in terms of the provisions contained in the Employment Rights Act.

The Court of Appeal held that the submission from O around his previous service with WL had not been raised at either of the previous hearings but there was no question of injustice and the new point was a "knock out blow" on a matter of pure law. The Court of Appeal found that it was clear that WL had transferred its business to WYL and that such a transfer did not break O's continuity of employment. As a result, O was entitled to claim unfair dismissal. The Court of Appeal commented that it was inappropriate for it to reach any conclusion on the issue of whether the fact that a company was in administration necessarily meant that Regulation 8(7) automatically applied or whether it was necessary for the company to be the subject of bankruptcy proceedings or any analogous insolvency, but there was a strong argument that the Regulation did not automatically apply.

Comment:
This decision will come as a blow for the use of pre-pack administrations as the EAT decision appeared to approve their use in terms of amounting to "bankruptcy proceedings or any analogous insolvency proceedings" as required by Regulation 8(7).

Flexibility in determining redundancy pools
Lomond Motors Limited v Clark

Lomond Motors Limited ("LML") has two garages in the west of Scotland and two in the east. One accountant was employed to look after the two garages in the west and two accountants were employed to look after the garages in the east. Mr Clark ("C") was one the two accountants working in the east and he had been posted there from his original location in the west. LML decided that there should just be one accountant in the east and one accountant in the west. LML pooled C and the other "east" accountant. The "west" accountant was not part of the pool. C was made redundant on the basis that the other east accountant had longer service. C brought a claim for unfair dismissal on the basis that the selection of the pool was incorrect and it should have included all three accountants.

The Employment Tribunal decided that C was unfairly dismissed on the basis that limiting the selection pool to just the two "east" accountants was outside an employer's range of reasonable responses. The Tribunal held that limiting the selection pool did not take account of the fact that C had not been based in the east very long; his contract contained a mobility clause (under which he worked in the east) and that all three accountants performed the same, or very similar tasks.

The EAT overturned the decision of the Tribunal on the basis that it wrongly substituted its own view for that of the reasonable employer. The EAT stated that an employer had a "wide measure of flexibility" in determining a redundancy pool. The EAT found that there were many factors in the case which pointed to the redundancy pool only including the two "east" accountants. For example, the garages in the east were a separate work centre and since moving to the east all of Mr Clark's work had been solely for the benefit of those garages. Furthermore, the west garages were already running well with one accountant and it was only the set-up in the east which was being changed.

Comment :
The EAT's decision does allow employers a "good measure of flexibility" in determining redundancy pools. However, care must be taken to ensure a particular pool can be jusitifed.