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Are employers at increased risk of tribunals?

29 November 2011
Are employers at increased risk of tribunals?

Though overall claims received by tribunals have fallen, part time worker and age discrimination claims have shot up. Legal expert Emilie Bennetts explains what employers can do to protect themselves

THE PROBLEM
The annual Employment Tribunal statistics have shown an 8% overall fall in the number of claims received by Tribunals in 2011 compared with 2010. However, although there has been an overall decrease in claims, there are some areas in which claims are increasing.

The figures show that, compared to 2010, working time claims increased by 20%, part time workers claims almost trebled and age discrimination claims were up by 32%.

EXPERT ADVICE
Working Time
Under the Working Time Regulations 1998, employers must ensure that workers do not work more than an average of 48 hours a week (unless the worker has agreed in writing to opt out of this limit) and that they receive adequate rest breaks and holidays.

The 20% increase in claims could be attributed to the ongoing recession, as employees are more likely to bring claims against their existing employer to improve their working conditions rather than search for work elsewhere.

In addition, recent cases have confirmed that workers on long-term sick leave should be allowed to take, and be paid in respect of, their statutory holiday entitlement, even if this means carrying over holiday into the next leave year. These decisions could therefore have led the way for more claims in this area.

Part Time Workers The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allow part time workers to challenge less favourable treatment due to their part time status if it cannot be objectively justified by their employer.

Once again, the recent difficult economic climate could be behind the fact that the number of claims from part time workers has almost trebled from last year, as concern about the economy has made many employers reluctant to take on full time employees.

More employees have been forced to accept part time positions as an alternative to redundancy. Last year saw the highest level of part time workers on record since 1992.

Age Discrimination While the number of claims relating to the other strands of discrimination remained fairly steady, there was a 30% increase in age discrimination claims. The average award for age discrimination claims was also nearly three times higher than last year. This is the first time that the number of age discrimination claims has superseded race discrimination claims.

Every single employee can potentially bring a claim for age discrimination, and, since the law introducing age discrimination came into force in 2006, there has been a vast increase in the number of claims as more employees have become aware of their rights.

Some of the increase can be attributed to the removal of the default retirement age of 65 on 6 April 2011, so that now any dismissal because of age will constitute direct age discrimination under the Equality Act 2010 unless it can be objectively justified.

CHECK LIST

â- Identify any workers likely to exceed the 48 hour weekly average and seek their consent to enter into opt out agreements.

â- Identify any terms or practices which treat part-time workers less favourably than full-time workers and take steps to rectify the difference.

â- Review policies and employment contracts to remove references to a fixed retirement age (unless it can be justified for certain roles).

BEWAREâ- Although the figures show a decrease in employment tribunal claims of 8%, this still represents a rise of 44% from 2008/2009. There was a large surge in claims during the previous year, where claims increased by 56%.

â- With the removal of the default retirement age, and as employees become increasingly aware of their rights in the area, it is likely that the number of age discrimination claims will continue to increase.

â- In light of the ongoing recession, where redundancy is rife and jobs are less easy to come by, disgruntled employees are more likely to claim against their employer rather than in trying to secure another job.

CONTACT
Emilie Bennetts is a solicitor at Charles Russell LLP
emilie.bennetts@charlesrussell.co.uk

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