The most significant piece of employment legislation on the horizon is the Equality Bill, which has been proposed by the government and could be in place as soon as April. If it is approved, which seems likely as the Tories have declared themselves broadly supportive of it, the most dramatic changes are likely to affect recruitment, pay secrecy and the definition of discrimination.

In recruitment, the Bill could bring about the introduction of positive discrimination, whereby employers are encouraged to recruit more women and members of minority groups to fulfil ‘quotas’ from particular groups. However, this will only be necessary when the female or minority candidate is equally qualified .

Secrecy clauses regarding staff salaries, which currently exist in some employment clauses, could be outlawed to try to prevent continuing pay inequalities.

The legislation would also introduce broader definitions of discrimination to prevent prejudice on grounds of association or perception. This will protect those who are discriminated against because of their association with someone from a protected group, for example the white partner of an Asian woman, and those who are discriminated against because their employer thinks they have a disability.

This may sound like a ‘floodgates’ scenario, but it is hoped that it will operate to simply prevent foul play and genuine cases of unfair discrimination. There is no doubt that having all the anti-discrimination legislation covered by a single Bill will make things more transparent for everyone.

Age-old question
Following the failure in 2009 of the Heyday case, in which the High Court ruled that it was lawful for employers to insist that staff retire at 65, the government brought forward its planned review of the default retirement age and as a result consultation is now underway.

It is thought by many that the default retirement age may be abolished altogether from 2011, which will mean employers will have to consider very soon how to respond to a major change to workforce planning. Options such as gradual departures and flexible or part-time contracts may be the way forward together with effective performance management practices.

Already this year we have seen some landmark rulings in employment law. For example, the Employment Appeal Tribunal decided employers can require notice of holiday requests, and that employees who fail to give the requisite notice will lose their remaining holiday entitlement and not be allowed to carry it over into the next leave year.

The Court of Appeal has also decided that BA did not discriminate against Nadia Eweida on religious grounds when it told her that wearing a crucifix necklace contravened its dress code. We can expect to hear soon whether Tim Nicholson was unfairly selected for redundancy on grounds of his belief in man-made climate change, now that a higher court has decided that environmentalism has the same weight in law as religious and philosophical beliefs.

Also anticipated are the first cases considering the application of the new ACAS Code on Disciplinary and Grievance Procedures; we look forward to guidance on how this may be treated by the courts.

In April, the new ‘fit notes’ will be rolled out. These are intended to replace sick notes, in which an employee’s GP can indicate the employee is fit for some duties, and that certain changes to the working environment or conditions may expedite a return to work. Let us hope that their introduction helps reduce levels of costly sickness absence.

And that‘s just the things we know about. What with a possible new government and the continuing machinations of the EU, we could be in for many other developments affecting our employment and recruitment practices. We can hardly wait.

Carole Banwell is a solicitor at BPIF Legal