ABG Employment Newsletter – May 2012

Justification of compulsory retirement

Although the default retirement age of 65 has been abolished and an employer will prima facie be guilty of age discrimination by forcing an employee to retire at a particular age, it will not be unlawful to do so if the employer can show that the retirement was objectively justified as a proportionate means of achieving a legitimate aim. Unlike discrimination on other grounds, direct discrimination on the grounds of age is not unlawful if it can be objectively justified.

In the well-publicised partnership case of Seldon -v- Clarkson Wright and Jakes the Supreme Court has held that a law firm had potentially legitimate aims capable of justifying the compulsory retirement of a partner who had reached the age of 65, the aims in question being staff retention, workforce planning and dignity. However, the Court also said that, based on European law, direct age discrimination must be justified by reference to “social policy objectives” and that the individual aims of a firm are not necessarily sufficient. Social policy objectives are those which are of a public interest nature and are different from purely individual reasons particular to the employer, such as costs reduction or improving competitiveness. It held that the 3 aims identified in this case (staff retention, workforce planning and dignity) amount to social policy objectives for this purpose.

The case now returns to the employment tribunal to decide whether the chosen retirement age of 65 was a proportionate means of achieving the 3 aims in question.

Although this is a case involving partners, the principles in question would apply equally in an employment context. Having said that, the case should not be treated as a green light for employers to reintroduce or impose compulsory retirement either across the workforce in general or in individual cases. It remains open to question as to what legitimate aims will be accepted as amounting to “social policy objectives” in an employment context and not simply reasons particular to the employer’s individual business. It should further be borne in mind that, even where the employer relies on “social policy objectives” as its legitimate aims, the retirement of the employee or employees must still amount to a proportionate means of achieving these objectives: this means that the compulsory retirement must be “appropriate and necessary” to achieve those objectives.

Fair dismissal for vulgar comments on Facebook

In a recent case a tribunal ruled that an employee who posted obscene comments about a colleague on his Facebook page had been fairly dismissed. He posted vulgar comments about the promiscuity of a female colleague on Facebook. The comments mentioned the company and were read by some of his work colleagues. His female colleague was excluded from his page, but she heard about the comment and asked the employee’s girlfriend to have him remove it. However, the employee then posted a further lewd comment about her.

The circumstances came to the attention of the employer which dismissed the employee for gross misconduct following a disciplinary hearing. Details of the offence were harassment of a fellow employee and bringing the company into disrepute. The employee appealed, arguing that he had intended the comments to be a joke, but his appeal was turned down.

In these circumstances the tribunal ruled that the employee had been fairly dismissed. It decided that although the comments did not bring the company’s reputation into disrepute and so the dismissal on that ground was flawed, the harassment of the female employee was sufficiently serious on its own to justify the employee’s dismissal for gross misconduct.

Effective date of termination

In the case of Horwood -v- Lincolnshire County Council the EAT has ruled that, where an employee resigns without notice, the effective date of termination is the date on which the letter is opened and date stamped at the employer’s offices. The resignation is effective as at that date even if the letter has not been read by any named addressee.

Identifying the effective date of termination was important in this particular case in order for the tribunal to decide whether the employee had brought her constructive dismissal claim in time.

The EAT’s ruling can be contrasted with a case where the employer summarily dismisses the employee. Where the summary dismissal is by letter, the effective date of termination is when the employee actually reads the letter or has a reasonable opportunity to discover its contents, rather than the date on which the letter is received at the employee’s home address.

Accusation of lying about miscarriage and pregnancy was not unlawful harassment

Under the legal definition of sex related harassment, there will be a case of harassment where there is unwanted conduct “related to a woman’s sex” which has the purpose or effect of violating the woman’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

In a recent case the EAT upheld a tribunal’s decision that a female employee had not been unlawfully harassed when her manager accused her of lying about a miscarriage. The manager’s comments were offensive and upsetting and referred to her pregnancy, but the manager had raised the miscarriage issue during a dispute about whether the employee had lied about a salary agreement. In these circumstances the reason for the comments was not “related to” pregnancy or the woman’s sex, but emphasised her alleged dishonesty.

This decision shows that the fact that a protected characteristic is part of the background circumstances in which the treatment complained of occurred, does not necessarily mean that the protected characteristic is the reason or ground for that treatment or that the treatment is related to that characteristic.

No marriage discrimination because of marriage to a particular man

In the case of Hawkins -v- Atex Group Limited the chairman of the company had given an instruction to the chief executive not to employ any family member in an executive or professional capacity. He was concerned about possible nepotism and the business being inappropriately run as a family business. In breach of this instruction the chief executive employed his wife as marketing director and their daughter as HR manager.

All 3 were dismissed, following which Mrs Hawkins claimed that her dismissal was unlawful direct marriage discrimination.

An employment judge struck out her claim as having no reasonable prospect of success. The strikeout has been upheld by the EAT which held that the judge had correctly struck out the claim. The EAT said that the protected characteristic in the case was the fact of being married and so the relevant comparator was a person who is not married. In any such comparison the relevant circumstances must be the same except for the protected characteristic, so the appropriate comparator would be someone in a relationship akin to marriage, but who was not actually married: a “common law spouse”.

The position is not straightforward where the reason for the employee’s treatment is both the fact that she is married and the identity of her husband: where she is dismissed not simply because she is married, but because of who she is married to. In this case the question is not whether the employee suffered the treatment complained of because she was married to a particular man, but whether she suffered it because she was married to that man.

In this case the ground for the employer’s action was not the fact that the employee and her husband were married, but simply the closeness of their relationship and the problems this was perceived to cause. A common law wife would have been treated in the same way. In giving reasons for the conduct complained of the employer had referred to the fact that they were married, but this simply reflected the fact that in their particular case the close relationship took the form of marriage. The employer would have treated a common law spouse in the same way so this meant that there was no direct marriage discrimination.

Correction to Guidance Note on Auto Enrolment Pensions

We recently sent out a Guidance Note dated March 2012 regarding Auto Enrolment Pensions. There was a minor typographical error and the updated version can be found on our website with our other Guidance Notes.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

Kathryn Meir
[email protected]
+44 (0)115 934 3308