Thailand: Amendments to the Labour Protection Act

The draft amendment to the Labour Protection Act (the LPA) has now been approved by the National Legislative Assembly on 29 June 2017, and is awaiting Royal Assent to be given by the King. Once the Royal Assent is given, it will be published in the Royal Gazette and the amendment will become effective from the day following the publication date. Whilst the specific time frame is still unclear, there is a possibility that the draft amendment to the LPA will come into force later this year.

According to the draft, there are four key amendments being proposed: minimum wages rates of certain groups or types of employees, work rules, employees’ retirement and criminal penalty for employers. Failure to comply with certain provisions of the LPA will expose employers to criminal liability. Thus, employers should familiarise themselves with the draft amendment at the earliest possible chance.

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UK: Discrimination arising from disability – ‘unfavourable treatment’ test does not require comparison

The EAT has overturned a tribunal ruling that it was unlawful disability-related discrimination for an ill health early retirement pension to be based on an employee’s final salary, where the employee’s hours had been reduced prior to his early retirement as a reasonable adjustment to accommodate his disability and his pension was based on this reduced salary. The case was remitted to decide if there was in fact ‘unfavourable treatment’ as the tribunal had wrongly looked for comparators and had erred in comparing the claimant’s treatment with that of others whose disability had come on suddenly. Continue reading

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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United Arab Emirates: Proposed reform to retirement and pension law

The Federal National Council (FNC) has called for widespread reform to retirement and pension laws in an effort to encourage more Emiratis to work in the private sector.

The FNC’s proposed changes to the pension system include:

  • permitting Emirati owners of small or medium enterprises to register with the Pensions and Social Welfare Authority, making them eligible for state pensions;
  • allowing retired Emiratis to gain new employment while collecting a state pension;
  • removing the requirement that women be 50 before being able to retire and reinstating the previous condition that a woman works for 20 years prior to retirement; and
  • aligning annual pension increases with inflation.

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Spain: Proposed amendments to Spain’s state pension system

On 7 June 2013, a committee of experts appointed by the Spanish government was asked to prepare a report on the “sustainability factor” of the social security system. The report was commissioned pursuant to Act 27/2011 regarding the modernisation and adequacy of the social security system and was put before Spanish Congress on 18 and 19 June 2013. Following consultation with businesses and trade unions, which is due to start this September, the report’s findings could be implemented by law. Continue reading

UK: Age discrimination – partnership mandatory retirement age of 65 lawful

Readers will be aware of the Supreme Court ruling in Seldon v Clarkson Wright & Jakes that a mandatory retirement age of 65 in a law firm partnership was potentially justifiable to achieve the legitimate aims of staff recruitment and retention and workforce planning (see here). The case was remitted to the tribunal to decide whether it was in fact justified in the particular case, and the tribunal has now confirmed that it was. Continue reading

The key elements of Spanish labour reform: Act 3/2012, of 6 July, of urgent measures to reform the employment market

Act 3/2012, of 6 July, of urgent measures to reform the employment market was published in the Official State Journal on 7 July, following the passing of Royal Decree-Law 3/2012 as an ordinary law by the Spanish parliament.

The main differences compared to Royal Decree-Law 3/2012 affect the following areas:

  1. Paid leave for professional training purposes
  2. Irregular distribution of the working day
  3. Clarification of the definition of economic, technical, organisational or production-related causes
  4. Successive chains of fixed-term contracts and transitional regime
  5. Achieving stability in collective bargaining agreements
  6. Nullity of mandatory retirement clauses contained in collective bargaining agreements
  7. Collective redundancies
  8. Individual dismissal on objective grounds

See below the summary of the key reforms in English and Spanish. Continue reading

UK: Age discrimination – Supreme Court tinkers with law on retirement ages

In Seldon v Clarkson Wright and Jakes the Supreme Court has confirmed that employers need to give careful consideration when seeking to justify mandatory retirement ages.

Inter-generational fairness and facilitating a dignified exit are confirmed as potential legitimate aims, but employers must show that the identified legitimate aim actually applies to their business and that the particular retirement age chosen is appropriate and necessary to achieve that aim – which will remain difficult to establish.

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UK: Age discrimination – degree requirement needs to be justified

Employers should only impose requirements for job holders to have a degree if these can be justified. Where an employee was coming up to compulsory retirement age and therefore had insufficient time to acquire the degree required to be on the highest grade, this was a disadvantage on grounds of age that required justification, according to the Supreme Court in Homer v CC West Yorkshire Police.

The Court of Appeal had ruled that the disadvantage to employees aged 60-65 was caused by the fact of their imminent retirement and not by their age (see our April 2010 ebulletin).  The Supreme Court rejected this distinction, holding that retirement is inextricably linked with age in a context where employees faced compulsory retirement at 65.  The Supreme Court ruled that it was not appropriate, when considering whether there was age-related disadvantage, to compare those nearing compulsory retirement with those nearing leaving for some other reason such as family reasons, given that the latter group have some choice in the matter.

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UK: Statutory default retirements – notices invalid if fail to refer to statutory provision

The Court of Appeal has confirmed that employer notices to retire employees under the old statutory default retirement age regime given prior to 6 April 2011 are invalid if they do not expressly state that the employee's right to request continued working is pursuant to paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.

However, it disagreed with the EAT ruling that the employer's notice should also clarify that any request made by the employee must also expressly state that it is made under paragraph 5.

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