Legislation for no-smoking signs to be simplified

No-smoking signs in workplaces in England

From 1 October 2012, a person (e.g. an employer) who occupies or manages smoke-free premises must ensure that at least one legible no-smoking sign is displayed on those premises.

The legal requirements for a no-smoking sign under reg. 2 of the Smoke-free (Signs) Regulations 2007 (SSR) will be abolished, e.g. from 1 October 2012, a no-smoking sign will not be required to be at least A5 size.

No-smoking signs in work vehicles

From 1 October 2012, a person who manages a smoke-free vehicle must ensure that at least one legible no-smoking sign is displayed in the vehicle.

The legal requirements for a no-smoking sign under reg. 3 of the SSR 2007 will be abolished, e.g. from 1 October 2012, a no-smoking sign will not be required to display a no-smoking symbol.

Source: The Smoke-free (Signs) Regulations 2012 [SI 2012/1536].

Rehabilitation periods for criminal convictions

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 confirms that the rehabilitation periods for criminal convictions will be reduced: see Spent Convictions.

Sunday Trading (London Olympic Games and Paralympic Games) Act 2012

The Department of Business Innovation & Skills (BIS) has published a guide on the Sunday Trading (London Olympic Games and Paralympic Games) Act 2012. The guide is available on the BIS website.

Age discrimination must be justified

In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, West Yorkshire Police introduced a requirement that a legal advisor must have a law degree in order to enter the highest pay grade. Mr Homer, aged 61, was unable to obtain a law degree before he retired. Mr Homer claimed that the requirement amounted to unlawful indirect age discrimination.

The Supreme Court ruled that the requirement amounted to indirect age discrimination. But it remitted the case to the tribunal to reconsider whether the discrimination was lawful or justified.

Retirement Age

In Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, Mr Seldon claimed that a retirement age of 65 amounted to unlawful direct discrimination. 

The Supreme Court (SC) said that the retirement age had three legitimate aims, i.e. staff retention; workplace planning; and performance management. Staff retention and workplace planning were directly related to the legitimate aim of sharing employment between generations of workers [see para. 56]. Performance management was directly related to the legitimate aim of avoiding the need to dismiss older workers on the grounds of poor performance [see para. 57].

The SC remitted the case to the tribunal to determine if the retirement age of 65 was a proportionate means of avoiding the need to dismiss older workers on the grounds of poor performance [see para. 68]. But the SC warned that if the employer already had performance management procedures in place - it may not be legitimate to avoid managing the performance of its older workers [see para. 61].

The Supreme Court also provided a list of legitimate aims that may be used to justify a direct age discrimination claim [see para. 50(4)].

Qualifying period for unfair dismissal

The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 [SI 2012/989], confirms that the qualifying period (QP) for unfair dismissal and a statement of reasons for dismissal will increase from one year to two years.

The two-year QP will apply to an employee whose employment began on or after 6 April 2012.

From 6 April 2012, an employment judge can sit alone for an unfair dismissal claim: Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 [SI 2012/988].

When should the consultation begin?

In USA v Nolan [C-583/10], the Court of Appeal asked the ECJ if an employer should begin consulting with employee representatives about redundancies:

• When the employer starts to think about closing a workplace or
• When the employer has decided to close a workplace.

The Advocate General has ruled that:

• The consultation should begin when an employer has decided to close a workplace.

• The Court of Appeal should determine the date on which the employer decided to close the workplace and whether the consultation began “in good time” for the purpose of s. 188(1A) of TULR(C)A 1992.

The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.

Age discrimination was justified

In Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, Mr Woodcock was entitled to an enhanced retirement pension (ERP) on his 50th birthday. The cost of providing an ERP to Mr Woodcock was considerably higher than the cost of making him redundant.

Cumbria Primary Care Trust (CPCT) gave a redundancy dismissal notice (RDN) to Mr Woodcock - before the first consultation meeting had taken place – to ensure that the notice expired before his 50th birthday. The duration of the RDN was one year.

Mr Woodcock claimed that the timing of the RDN was due to his age - and therefore - he was a victim of unlawful age discrimination. His treatment could not be justified by CPCT.

The Court of Appeal disagreed. CPCT had a legitimate aim, i.e. dismissing Mr Woodcock who had become redundant and the timing of the RDN was a proportionate means of achieving the aim. A part of the aim was to avoid the extra cost of providing an ERP to Mr Woodcock [see paragraphs 66 – 70].

Also see Age discrimination: "cheapest employee" criterion was lawful

Permanent contracts offered to fixed-term employees

In Huet v Universite de Bretagne occidentale [C-251/11], Mr Huet became a permanent employee - after he had worked as a Researcher - on successive fixed-term contracts for six years. However, Mr Huet was permanently employed as a Research Officer with lower pay than a Researcher. The ECJ was asked if Mr Huet’s permanent contract and his previous fixed-term contract must have the same terms of employment (e.g. the same pay and job title).

The ECJ replied no. However, the terms of the permanent contract - taken as a whole - should not be less favourable than the terms of the previous fixed-term contract - if the employee’s job has not changed.

Comment

In the UK, the ECJ’s decision will apply to fixed-term employees who have become permanent employees because they have worked on successive fixed-term contracts for at least four years.

Changes to tribunal procedures from 6 April 2012

The following changes will apply to an employment tribunal claim that is made on or after 6 April 2012: Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2012 [SI 2012/468].

• A witness statement will be taken as read unless the tribunal directs otherwise.
• A costs order can include a payment for the expenses of a tribunal witness
• The maximum amount of costs for a vexatious tribunal claim will rise from £10,000 to £20,000
• The maximum amount of a deposit for an unmerited tribunal claim will rise from £500 to £1,000