UK: revised Code on right to work checks, consultation on national minimum wage rules, age discrimination guide

  • The Home Office has published a revised Code of Practice on preventing illegal working, which reflects the ability for employers to check certain employees’ right to work records solely by online check from 28 January 2019 (see here).
  • The Government has published a consultation until 1 March 2019 on possible minor amendments to national minimum wage legislation in relation to salaried hours work and salary sacrifice (see here).
  • Acas has published a guide highlighting key areas where age discrimination may happen.

Hong Kong: Proposed changes to discrimination laws

On 30 November 2018, legislation was gazetted which proposes various amendments to the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The proposed amendments reflect eight of the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review. Key changes include extending protections against discrimination on the ground of breastfeeding and extending protections against disability and racial harassment by customers.

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UK: Indirect discrimination – Supreme Court ruling makes it easier for claimants to establish prima facie indirect discrimination

Employers should review whether their policies and practices could be disadvantaging employees with a particular protected characteristic. The Supreme Court has ruled that statistics showing a disparate impact may be enough to get an indirect discrimination claim off the ground; there is no need to establish why that particular group is disadvantaged by the policy, that the claimant suffers disadvantage for the same reason, or that all of the group are disadvantaged in the same way. It is enough for the claimant to produce statistics showing that the group is disadvantaged and that the claimant is a member of that group and also suffered the disadvantage. It will then be for the employer to show that it was something other than the policy that caused the claimant's situation, or to justify the policy.

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Hong Kong: The labour policy promises of the new Chief Executive

On 26 March 2017, Carrie Lam Cheng Yuet-ngor was elected as the city's next (and first female) chief executive, after winning 777 votes from a 1,194-member election committee. In a 520-page manifesto, Carrie Lam set out her policy campaign including, briefly, her views on how the government under her leadership would address certain topical labour issues. This article summarises what we can expect from a new government under Carrie Lam's leadership.

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Singapore: Amendments to the Retirement and Re-employment Act

On 9 January 2017, the Parliament of Singapore passed the Retirement and Re-employment (Amendment) Bill 2016 (Bill). The Bill abolished employers' right to reduce the salary of workers who reach the age of 60, and introduced a provision which exempts employers from having to either re-employ an eligible employee or offer an Employment Assistance Payment to such an employee where the employee secures employment with another employer. The Minister for Manpower has also announced that the re-employment age will be increased from 65 to 67 in a bid to improve the employment outcomes of Singapore's senior workers.

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UK: Voluntary redundancy – excluding employee eligible for early retirement is prima facie age discrimination

The EAT has confirmed that excluding an employee who is eligible for early retirement from voluntary redundancy, due to the higher severance costs, is prima facie discrimination on grounds of age. The employer could not argue that the reason, severance cost, was something other than age, as the additional cost was directly referable to age. Therefore the employee's exclusion was age discrimination unless it could be objectively justified. (Donkor v Royal Bank of Scotland)

UK: Appeal news – tribunal fees, unfair dismissal compensation cap, retirement age

  • UNISON has been granted permission to appeal to the Court of Appeal in its judicial review application challenging the introduction of tribunal fees, summarised here.
  • Last year the upper limit on the unfair dismissal compensatory award was varied to the lower of 52 weeks’ pay and the annually fixed limit (currently £76,574), for cases where the effective date of termination is on or after 29 July 2013. An application for judicial review was made challenging the new cap as indirectly discriminating against older employees.  It has now been reported that the High Court has dismissed the challenge, although apparently an appeal is being considered.
  • The EAT has upheld the tribunal's ruling in Seldon v Clarkson Wright & Jakes (summarised here) that a mandatory retirement age of 65 for law firm partners was objectively justified on the facts. The EAT rejected the argument that, if the firm’s aims could also have been achieved by a retirement age of 66, it could not justify choosing 65. It would always be possible to argue that the employer could have reduced the discriminatory effect by choosing an age slightly higher than it had – this was just the reality of selecting a bright-line date. The key question was whether the chosen age was reasonably necessary to achieve the legitimate aims.

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UK: Enhanced redundancy pay – risk of age discrimination claims

Employers should carefully consider whether enhanced redundancy schemes paying more to older workers can be justified.

The ECJ has ruled that a Danish scheme for civil servants which excluded those aged 65 or over and therefore eligible for pension (but not required to retire until 70) was not objectively justified. The scheme provided three years' salary as "availability pay", partly to ensure the civil servants were available to be reassigned to another post and partly to protect them from external pressures by providing a replacement income. The ECJ ruled that the scheme was for legitimate aims but went further than necessary: it should have included those employees over 65 who temporarily waived their right to receive a pension in order to remain available for redeployment. (Dansk Jurist v Indenrigs, C-546/11).

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