This factsheet only outlines some areas of employment law. Details of where to get further information and advice are included in section 10.

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1 Factsheet 4 June 2014 About this factsheet This factsheet is aimed at older people who are in work. It covers employment rights and retirement, how health issues and caring responsibilities can affect your employment, and some information about age and disability discrimination at work. For information about how to resolve disputes at work, including taking a claim to an Employment Tribunal, see Age UK s Factsheet 70, Dealing with disputes at work. This factsheet only outlines some areas of employment law. Details of where to get further information and advice are included in section 10. The information given in this factsheet is applicable in England, Scotland and Wales. Different rules may apply in Northern Ireland. Readers in Northern Ireland should contact their respective national office for information specific to where they live see section 11 for details. If you need further information or advice, section 11 includes details of how to order other Age UK factsheets and information materials. You will also find the telephone numbers for Age UK Advice. If you need more detailed advice tailored to your personal circumstances or representation, it is often best to find a local service offering this. Age UK Advice can give you contact details for a local Age UK, or you could contact one of the independent organisations listed in section 10. Factsheet 4 June of 37

2 Inside this factsheet 1 Recent developments 4 2 Contractual and statutory rights Employment status Permanent employees Fixed Term Contracts Agency Workers Self-employment 8 3 Terms and conditions of employment Working time hours and rest breaks Annual leave Notice periods National minimum wage Automatic enrolment to workplace pensions Changing terms and conditions Transfer of a business 13 4 Discrimination Age discrimination Disability discrimination Harassment 17 5 Retirement The default retirement age Flexible retirement 20 6 Work and caring Flexible working Time off for dependants 21 7 Redundancy and dismissal Redundancy Dismissal 25 8 Work and health Statutory Sick Pay Other welfare benefits Sickness outside of work Sickness as a result of bullying 29 Factsheet 4 June of 37

3 9 Working Tax Credit Working Tax Credit if you have a disability Useful organisations Further information from Age UK 35 Factsheet 4 June of 37

4 1 Recent developments The default retirement age was abolished with effect from 1 October From that date, there ceased to be a retirement age provided by law and noone could be retired at the age of 65, unless subject to a notice received before April Employers will still be able to force employees to retire, but they will have to be able to objectively justify this decision before a court. In practice, objective justification should be difficult to achieve, although case law following the Seldon ruling (see section 4.1) is limited at present. From 1 October 2011, agency workers have had the same rights as permanent employees in many areas right from day one such as access to facilities (e.g. canteens), as well as the right to be informed about permanent vacancies within the organisation. In addition, they are now entitled to the same basic pay and working conditions as permanent employees carrying out a comparative role after completing 12 weeks of employment with the organisation, unless their contract subscribes them to the Swedish Derogation, which impacts on the terms and conditions (see section 2.4). Compliance is the responsibility of the Agency employing the worker, however the organisation to which the worker is attached, will have a responsibility to provide information on comparative conditions. In April 2012, the period of qualification to bring a claim for unfair dismissal increased from one to two years, although there are some exceptions where this period is disregarded. In April 2012, the Supreme Court ruled on two important age discrimination cases: firstly, Seldon v Clarkson, Wright and Jakes, which related to forced retirement and direct age discrimination (see section 4.1 on age discrimination for more detail); and secondly Homer v Chief Constable of West Midlands Police that denying a promotion to an employee because he did not hold the required qualification but did not have time to gain it before his retirement was indirect age discrimination. A number of employment law changes were introduced on 29 July These included: A cap on the compensatory element of unfair dismissal tribunal awards. Where an employee is dismissed on or after 29 July 2013, this is capped at the lower of 74,200 or one year s gross pay (not including pension contributions, benefits-in-kind or discretionary bonuses). Factsheet 4 June of 37

5 If issuing an employment tribunal claim on or after 29 July 2013, individuals will have to pay a fee to lodge the claim and a further fee to proceed to a hearing. These fees will be up to 250 to lodge the claim and up to 950 for the hearing, depending on the type of claim issued. Age discrimination claims attract the maximum fees permitted (level 2). Compromise Agreements were re-named as Settlement Agreements. In a case at the Employment Appeal Tribunal Slade v TNT, it was decided that whilst an employer cannot unilaterally (i.e. without employee s agreement) change the terms of a contract, it may terminate an employment contract (i.e. by dismissing the employee) and issue revised terms, if the change proposed is necessary and legitimate. The Court of Appeal ruled in Jessemey v Rowstock Ltd. that an employer cannot give a bad reference following a complaint of discrimination by an exemployee. This decision clarified that the Equality Act 2010 does in fact apply to post-employment victimisation. The Court of Appeal held in Gallop v Newport City Council that an employer claiming lack of knowledge was not sufficient defence for a disability discrimination claim. Newport City Council had unquestioningly accepted the opinion of an Occupational Health adviser that Mr Gallop was not disabled, and had not taken any steps to confirm whether this was the case. Further reforms took place on 6 April 2014: Discrimination questionnaires were abolished. Employment Tribunal penalties of between 100 and 5000 introduced for any employer who loses at a Tribunal hearing. Mandatory early conciliation came into force. This means that where the employer and employee are in dispute, ACAS must be notified and steps taken, under ACAS s guidance, to resolve the dispute. This is to try and reach an agreement in order to prevent it being submitted to the Employment Tribunal. Neither party is under obligation to use the mitigation service, but the dispute must be reported in accordance with the process, or it will only be allowed to proceed to the Tribunal in exceptional circumstances. Factsheet 4 June of 37

6 2 Contractual and statutory rights 2.1 Employment status Most rights referred to in this factsheet only apply to employees and not to self-employed people. Some rights apply to all workers this term includes a wider range of people than employee, including agency and casual workers, employee shareholders (introduced in 2013), and people who are selfemployed. Whether you are an employee, a worker or self-employed is determined by several factors, including how much control your employer has over your work, whether there is an obligation for your employer to provide work and for you to carry out the work, and how you are paid (see section 2.5). Even if a contract states that you are self-employed, you may in fact be an employee or a worker and benefit from the additional employment protection that these statuses provide. Employment status is a complicated area and you should take expert advice if you are unsure of your status. 2.2 Permanent employees Every employee has certain statutory employment rights (e.g. a minimum number of days holiday). In addition, an employee s contract of employment may set out terms and conditions that are more generous than the basic protection. If a contract provides less than the basic statutory protection, this is unlawful and the statutory minimum will apply. Apart from some limited exceptions, notably if you are an employee-shareholder the employer and the employee cannot exclude the statutory rights; that is, your employer cannot persuade you to agree to give up your rights. You do not have to have a written contract to have contractual rights. If there is no contract in writing, the terms of the contract will be formed by what is agreed verbally between you and your employer; by any terms in the original job advert or offer letter from the employer; and by looking at custom and practice i.e. how the relationship between you and your employer actually works. Factsheet 4 June of 37

7 Some rights depend on the employee having been employed for a certain period; for example, you are only entitled to a statutory redundancy payment after two years of service. Others are available even before employment begins and after it ends; for example, the right not to be discriminated against covers all aspects of employment recruitment, training and promotion, dismissal or redundancy, and providing a reference after employment ends. 2.3 Fixed Term Contracts Contracts of employment could be permanent or for a fixed term, wherein the contract has a fixed duration e.g. 12 months. A number of employers often retain employees on fixed terms contracts which are renewable upon expiration. A law called The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, makes it unlawful to treat fixed term employees less favourably than permanent employees. A fixed term employee, who believes himself/ herself to have been treated less favourably than a permanent employee, has a right to request reasons for such treatment in writing from the employer. These regulations also provide that an employee who has been employed under successive fixed term contracts for four or more years shall be deemed to be a permanent employee, unless the employer can objectively justify retaining the fixed term contract. These provisions do not however apply to agency workers. Employees on fixed term contracts are treated as permanent staff for the purposes of unfair dismissal and similar employment rights. 2.4 Agency Workers An agency worker by the Agency Worker Regulations 2010 (as amended) is defined as an individual who has a contract of employment with the agency or any other contract with the agency to perform work or services personally. Since1 October 2011, agency workers have had the same rights as permanent employees in many areas from day one such as access to facilities (e.g. canteens), as well as the right to be informed about permanent vacancies within the organisation. Factsheet 4 June of 37

8 Agency workers are now entitled to the same basic pay and working conditions as permanent employees carrying out a comparative role, after completing 12 weeks of employment with the organisation. The regulations are not retrospective and so those agency workers already on assignment on 1 October 2011 started to accrue their 12 week qualifying period from that date. Compliance is the responsibility of the Agency employing the worker, however the organisation to which the worker is attached, has a responsibility to provide information on comparative conditions. An important clause in the Agency Worker Regulations is known as the Swedish derogation, so-called because it was included in the EU Directive that governs the Regulations at the insistence of the Swedish government. This exempts an employment agency from having to match agency workers pay with permanent staff, as long as the agency directly employs the individual and guarantees to pay them for at least four weeks when they are between assignments. Use of this clause has become widespread, and has been controversial in the UK with the government facing calls to change the law to prevent abuses of agency staff. 2.5 Self-employment There is no legal definition of self-employment, instead it depends on your working arrangements and/or terms and conditions. While it is sometimes clear whether or not you are self-employed there can, however, be a degree of ambiguity. Nonetheless it is important because if affects your workplace rights, how you pay tax and National Insurance, and your entitlement to welfare benefits. Some indicators of self-employment include: Having several customers at the same time Deciding how, when and where you work Ability to hire other people to help you at your own expense Provide most materials and equipment Factsheet 4 June of 37

9 Working for one person who directs your work and how you work, or having to work a set amount of hours, may mean you are not self-employed. Also, being paid according to the hours you work or receiving overtime can mean you are not self-employed. 3 Terms and conditions of employment Your employer must supply you with a written statement of the main terms of your employment within two months of the start of the job. This must include terms such as the date employment began, the rate and method of payment, hours of work, holiday entitlement, sickness entitlement, etc. Technically this statement is not the same as the contract, although the statement of terms is often provided as part of the written contract. An Employment Tribunal would look at a statement of terms as being good evidence of the terms of the contract if there were a dispute. If your employer refuses to give you a written statement of terms within two months, you can apply to the Employment Tribunal, which will determine what terms have actually been agreed. 3.1 Working time hours and rest breaks The length of work breaks and holiday entitlement are mostly agreed between employers and workers as part of their contracts. There is no legal protection from working at weekends or bank holidays, but under the Working Time Regulations there are basic legal entitlements to breaks and leave: you cannot be forced to work for more than 48 hours a week, although most people can agree to opt out of this limit if you work on average for more than three hours a night between 11pm and 6am you may not work for more than an average 8 hours in each 24- hour period you must receive 11 hours rest between each working day you are entitled to one whole day off each week Factsheet 4 June of 37

10 you are entitled to a 20-minute rest break if you work for more than six hours at a stretch. A wide variety of occupations are exempt from some of the Regulation provisions. You can obtain further information about these provisions by calling the Health and Safety Executive s Info line on Employees can complain of unfair dismissal, regardless of their length of service, if they are dismissed for reasons relating to the Working Time Regulations. Workers who are not employees can complain that they have suffered a detriment if their contracts are terminated for these reasons. 3.2 Annual leave The minimum paid annual leave entitlement for someone who works five days a week is 28 days (from 1 April 2009). If you work part time, you can calculate your entitlement by multiplying the number of days per week you work by 5.6, e.g. if you work 3 days a week, you would be entitled to 16.8 days a year. Your annual leave entitlement can include bank holidays. Your employer can insist that you take your annual leave at a particular time, as long as they give you the correct amount of notice. This will be the amount of notice provided for in a workforce agreement or, if there is no agreement, at least twice as much notice as the amount of leave to be taken. For example, if your employer orders you to take one week s leave, they must give you two weeks notice. 3.3 Notice periods After one calendar month s employment an employee is entitled to a statutory minimum period of one week s notice. The statutory minimum notice then increases by one week s notice for each whole year of service, up to a maximum of 12 weeks notice after 12 years service. This period can either be worked or money can be paid instead (payment in lieu of notice). These provisions do not apply to temporary staff employed for three months or less, or those dismissed for gross misconduct. Factsheet 4 June of 37

11 Your contract of employment may require a longer notice period than the statutory minimum in which case it is the period in the contract that applies, not the statutory minimum. Employees who have been wrongfully dismissed (see section 7.2) without proper notice and without being paid in lieu may bring a complaint to an Employment Tribunal (within three months). The employer has a right to one week s notice from the employee, unless the contract states a longer period is required. 3.4 National minimum wage The national minimum wage (NMW) has since 1 October 2013, been increased to 6.31 per hour, before deductions, for workers aged 21 and over, and 5.03 per hour for those aged (the development rate). The development rate also applies to trainees, i.e. someone who is in their first six months of employment with an employer and who is receiving accredited training. From October 2014 the NMW will rise to 6.50 per hour, and 5.13 per hour for the development rate. Employees are protected against unfair dismissal, and workers who are not employees are also protected against suffering a detriment (loss or disadvantage) by the termination of their contracts, on the grounds that they qualify, or will qualify, or might qualify, for the NMW. In both instances workers, including employees, are also protected from detrimental action or deliberate inaction by the employer that falls short of dismissal. If you have any enquiries about the national minimum wage, call the Pay and Work Rights line on The Department for Business, Innovation and Skills (BIS) also produces guidance for employees, employers and advisers. 3.5 Automatic enrolment to workplace pensions All employers will soon be required to provide their employees aged between 22 and State Pension age and earning at least 10,000 per year with a workplace pension. This is known as auto enrolment because employees will automatically join their employer s scheme unless they decide to opt out. Factsheet 4 June of 37

12 The process of obliging employers to provide a suitable workplace pension began in October 2012 with large employers, and is being progressively extended to cover smaller employers too. By April 2017, all employers will have to offer such a scheme, and it will be their employees right to join. Workplace pension schemes must meet certain standards, and the minimum contribution rates are set out by law. Before October 2017 these minimum rates are 0.8 per cent of qualifying earnings for the employee, 1 per cent from the employer and 0.2 per cent as tax relief from the Government (a total of 2 per cent). This will rise to reach 4 per cent from the employee, 3 per cent from the employer and 1 per cent from the Government by September 2018 (a total of 8 per cent). Qualifying earnings mean gross income between 5,772 and 41,865 (at present), for those earning 10,000 or more a year. For example, for someone earning 18,000 a year qualifying earnings would be 18,000 minus 5,772 which is 12,228. It is also possible for you and your employer to pay in more than the statutory minimum amount. For more information contact The Pensions Advisory Service. 3.6 Changing terms and conditions Your employer can only change the terms of your contract if you agree this on an individual basis, or a collective agreement is made with employee representatives. If your employer attempts to change a term without your agreement, you may have a claim for breach of contract. If you resign as a result of the change, or you are dismissed for not accepting it, you may also have a claim for unfair dismissal. If you are in this situation you should seek immediate advice from your trade union (If you are a member of one), the CAB, a solicitor or an advice agency. If your employer wants to change your place of work, whether this is lawful will depend on your contract. There may be a mobility clause, which is a term allowing the employer to change the workplace. If there is a mobility clause, your employer still has a duty to use this reasonably. Factsheet 4 June of 37

13 In Slade v TNT the Tribunal decided that whilst an employer cannot change the terms of a contract without your agreement, it may terminate an employment contract (i.e. by dismissing the employee) and issue revised terms if the change of term proposed is a reasonable change with a legitimate business aim(s). The dismissal of the employee might then be what is described as a potentially fair dismissal. It should be stressed that this case had its own unique facts (i.e. the employer had consulted with the staff Union extensively over the changes) and all similar cases will always be decided by Tribunals on their own merits. If your workplace is closing down, you may be entitled to a redundancy payment. 3.7 Transfer of a business Employees of a business, or part of a business, which is sold to a new owner have protection under the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE. They will automatically become employees of the new owner and they have the right to keep the same terms and conditions of employment. This does not mean that the employees are protected from redundancy as a result of the transfer. 4 Discrimination It is unlawful for an employer to discriminate against someone on the grounds of age, sex, race, disability, transgender status, marital status or civil partnership status, pregnancy or maternity, sexual orientation, religion or belief. Discrimination laws apply whether you are applying for a job, are in work, or have left a job, for example if you are denied a reference. Discrimination can either be direct or indirect: Factsheet 4 June of 37

14 Direct discrimination means treating someone less favourably because of their age, gender, race, disability, gender reassignment, marital or civil partnership status, pregnancy and maternity, sexual orientation, religion or belief. An example would be if an employer provides employment benefits that cover employees spouses but not civil partners or an employer not hiring someone because they are disabled. Age discrimination is the only area where an employer can potentially justify direct discrimination (see section 4.1 below). Indirect discrimination means having a policy or practice that puts certain people (e.g. women or people of a certain race or religion) at a disadvantage compared with other people. This includes practices that are apparently neutral but have an unequal impact on different groups of people. For example, if an employer introduces a new shift pattern that requires staff to work evenings, this may be indirect discrimination against women, as more women than men are single parents who would not be able to meet the requirement to work in the evenings. Indirect discrimination is unlawful unless the employer can objectively justify it. Victimisation: Victimisation is a form of discrimination that has a very specific meaning under discrimination law. It means being treated unfairly as a result of making a complaint of discrimination. In January 2014 the Supreme Court ruled in Jessemey v Rowstock Ltd. that post-employment victimisation is covered by the Equality Act Employers cannot, for example, issue someone with a bad reference because they had previously made a complaint of discrimination. The law also protects people who give evidence or provide information in connection with somebody else s allegation of discrimination. Factsheet 4 June of 37

15 4.1 Age discrimination Age discrimination was introduced as an offence under the Employment Equality (Age) Regulations This was transposed into the Equality Act 2010, which since 1 October 2010 has been the main law covering this issue. It provides protection against age discrimination in employment, education and training, as well as other areas such as membership of associations and trade bodies. The main rights under the legislation are: protection against being treated less favourably because of your age the extension of protection against unfair dismissal and other statutory rights to people of all ages the right not to be forced to retire on reaching a particular age (unless the employer can objectively justify that age) Since 1 October 2011, the default retirement age of 65 has been scrapped. Employers can no longer compulsorily retire employees or refuse to recruit prospective employees merely because they are over the age of 65 unless they can provide clear objective justification for this. An employer wishing to do this would have to provide evidence that the forced retirement has a legitimate objective compatible with a particular governmental social policy aim; that it tackles a genuine problem for the employer; and that the forced retirement is the only realistic way of resolving this. It cannot be done to satisfy a private business aim such as reducing costs or improving competitiveness. In practice, it is likely to be difficult for employers to successfully justify such action, although recent case law is limited. Seldon v Clarkson, Wright and Jakes, which is the most important recent case, is outlined below. It is a complex legal area and if your employer tries to force you to retire you should seek professional legal advice or speak to an advice agency. Factsheet 4 June of 37

16 4.1.1 Seldon v Clarkson, Wright and Jakes In April 2012, the case of Seldon v Clarkson, Wright and Jakes was ruled on by the Supreme Court. Mr Seldon was a partner in a law firm who had been forced to retire. Although the Supreme Court did not find against Clarkson, Wright and Jakes' decision to force Mr Seldon to retire, the ruling laid down the principles by which employers can objectively justify direct age discrimination in future, and this remains the key piece of recent case law. The Supreme Court found that in order for employers to justify direct discrimination, they must establish a legitimate aim that must be related to social policy objectives and cannot be private business aims (for example cost, competitiveness, or workforce flexibility). The employer must provide evidence as to why the legitimate aim it chooses is relevant in each particular case. The Court held valid social policy reasons include intergenerational fairness and mixing generations in the workplace; rewarding experience; facilitating the participation of older workers; avoiding dismissing older employees for capability where this might be humiliating; avoiding disputes about fitness to work. However, the Court specified that all businesses will now have to give careful consideration to what, if any, mandatory rules can be justified (paragraph 66). The ruling specified that in order to achieve justification, direct discrimination must be both appropriate for achieving the specified legitimate aim, and necessary in order to do so, as well as being a proportionate means of achieving a legitimate aim as before. Action: If you think you are being discriminated against you should get support and advice as soon as possible. See Age UK s Factsheet 70, Dealing with disputes at work, for more information including how to take legal action. The Equality and Human Rights Commission has responsibility for monitoring and enforcing the law on discrimination; see section 10 for contact details. Factsheet 4 June of 37

17 4.2 Disability discrimination To be covered by protection against discrimination on the grounds of disability, a person must have a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities (Equality Act 2010: Section 6). The definition of disability includes, for example people with multiple sclerosis or cancer, or who are HIV positive, from the point they are diagnosed even if their ability to carry out normal activities is not affected. Employers are not expected to know that someone is disabled if an employee leaves and subsequently claims disability discrimination where the employer had no prior knowledge of the disability, it cannot easily be retrospectively claimed that the employer should have made reasonable adjustments and take steps to facilitate a return to work. Employers are, however, required to make reasonable adjustments to a workplace to prevent a disabled worker being at a disadvantage compared to other employees. This could mean physical changes to the workplace, changes to working practices, or both. In addition, employers must reach their own judgements about whether or not an employee is likely to be classified as disabled under the Equality Act or is likely to be able to return to work. The Court of Appeal ruled in Gallop v Newport City Council that simply rubber-stamping an occupational health decision is not good enough. Any health condition that cannot be classified as trivial or insubstantial must be classified as substantial. 4.3 Harassment Harassment is a type of discrimination and falls under the anti-discrimination law. It is defined as being: Unwanted conduct that has the purpose or effect of violating a person s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Factsheet 4 June of 37

18 When considering a complaint of harassment, an Employment Tribunal will look at whether it is reasonable to conclude that the behaviour being complained of would violate someone s dignity, or create an intimidating, hostile environment. This will include considering the perception of the person making the complaint. It is irrelevant whether or not there was any intention to cause offence or intimidation; something that someone else considers a harmless joke could amount to harassment if it has the effect described above. A one-off incident can amount to harassment, as can a series of apparently less serious incidents, which taken together can have the effect of creating an intimidating environment Bullying It is important to remember that harassment is part of the anti-discrimination law and relates to the protected characteristics: age, sex, race, disability, gender reassignment, marital or civil partnership status, pregnancy and maternity, religion or belief or sexual orientation. The Equality Act does not offer protection to people who are being bullied in other circumstances. People in this situation may be able to take action in other ways. Usually the first step to take if you feel you are being bullied or unfairly treated at work is to raise this with your employer as a grievance. See Age UK s Factsheet 70, Dealing with disputes at work, for more on this. If the situation is so serious that you feel you have no choice but to leave work and you have exhausted all other reasonable routes, you may be able to claim constructive dismissal (see section 7.2). You must have worked for the employer for at least two years to be able to claim this. Factsheet 4 June of 37

19 5 Retirement Retirement age and State Pension age are not the same. The State Pension age is currently 65 for men, while for women it is currently rising to reach 65 in This affects women born between 6 April 1950 and 5 November Between November 2018 and October 2020 the State Pension age will rise from 65 to 66 for both men and women. You can draw your State Pension at State Pension age, but you do not have to retire from work at this time. In most circumstances whether or not to retire is the decision of each person. You can also defer drawing your State Pension and either take a lump sum or a higher State Pension when you do retire (see Age UK s Factsheet 19, State Pension, for details). Similarly, a common misconception with workplace pensions is that the worker must retire at the normal pension age. While it is not illegal for employers or their pension schemes to state a normal or expected date of retirement, there is no obligation for employees or other workers to stop work at or near this time. Attempts to force employees to do so could amount to age discrimination. It is increasingly common for people to continue working past this age, while others choose to stop before. 5.1 The default retirement age Before 1 October 2011, if your employer said your dismissal was a retirement, it would not be an unfair dismissal if you were 65 years old or over and the correct procedure was followed, i.e. that the notice of retirement was issued, giving you at least 6 months notice. Also you would have been given a right to request in writing to remain in employment, which needed to be properly and fairly considered by your employer. This however has changed as the default retirement age was scrapped on 1 October 2011, making it unlawful to force people to retire unless the employer can objectively justify their decision to a court. Factsheet 4 June of 37

20 5.2 Flexible retirement If you are not subject to a retirement age which applies to the majority of employees you will have a choice about when you want to stop working. Many people leave work because of health problems or caring responsibilities; sections 6 and 8 look at options relating to this. Flexible retirement is a term for making a gradual transition from work to retirement. This could mean staying with your current employer but reducing your hours or responsibilities. If you are considering this, check the implications for your income and occupational pension. If you have a final salary pension, shedding some responsibilities and taking a pay cut could reduce your pension. You will also need to be sure that you can live on your reduced income if you move to part-time work. You can now draw some or all of an occupational pension while working full or part time for the same employer, depending on the rules of the scheme. It is becoming increasingly common for people to work flexibly in the run up to retirement (see also Section 6.1 on flexible working). More people than ever are working past their State Pension age, and many others who have not yet reached this point either expect to keep working or want to do so. Some employers may be open to such ideas, while others may not, but in making such changes it is important to ensure that other employment rights are not breached. 6 Work and caring Many people over 50 are responsible for caring for a disabled person or a dependent adult. This may stop them from being able to work, or limit the hours they can work. If you are caring for someone for at least 35 hours a week and earning nothing or less than (after tax) a week you may be entitled to Carer s Allowance of a week (from April 2014). For more details see Age UK s Factsheet 55, Carer s Allowance. Factsheet 4 June of 37

21 6.1 Flexible working The right to request flexible working is a statutory right that was first introduced in 2003 (under the Employment Act 2002) for parents of young children and older disabled children. This was extended in 2007 to apply to all parents and some carers of adults. Following a further extension, from 30 June 2014 the right to request will be available to all employees who have the required minimum 26 weeks of service. This right means that employees can request that their employer allows them to work flexible hours or make other changes to their working pattern. For example, a request could be made to work part time, work different hours, or work from home. The employer has a duty to consider the request seriously and must give a valid reason if they reject it. This must be done within a reasonable timescale, and any changes become a permanent alteration to the contract. In addition to the formal right to request, many workers negotiate flexible patterns informally with their employer. This may or may not be effective, depending on the working environment and personal relationships with managers. In some circumstances this can be beneficial, but it can also come with caveats for example, a change in manager can lead to a sudden withdrawal of the arrangements, and it will not be possible to complain to an Employment Tribunal if the request is unreasonably rejected or the employee suffers a detriment as a result of working flexibly (unless this falls under another section of the law, such as discrimination). 6.2 Time off for dependants There are a number of reasons for which you can claim time off. Time off linked to parental support and pregnancy is not discussed in this factsheet. Representatives of trade unions that are recognised by the employer must be allowed reasonable time off with pay during working hours to carry out those duties and for training. Union members are entitled to reasonable unpaid time off for union activities. Similarly, there is a right to reasonable unpaid time off for public duties, for example where the employee is a councillor or magistrate. Factsheet 4 June of 37

22 You are also entitled to time off to deal with domestic emergencies involving someone who is dependent on you, such as your husband, wife or partner, child, parent, or someone living with you as part of your family. Others who rely solely on you for help in an emergency may also qualify as being dependent on you. There is no legal entitlement to receive pay, although some employers may choose to do so. An emergency might be where someone: is ill and needs your help is involved in an accident or assaulted needs you to arrange their longer-term care needs you to deal with an unexpected disruption or breakdown in care, such as a child-minder or nurse failing to turn up goes into labour. You can also take time off if a dependant dies and you need to make funeral arrangements or attend the funeral. Unless otherwise agreed in your employment contract your employer does not need to pay you for this time off. An employee who is dismissed or suffers a detriment as a result of claiming or taking time off for a dependant can complain to the Employment Tribunal, which has the power to order compensation. The complaint should be made within three months of the date of dismissal, or the date the detriment occurred. Factsheet 4 June of 37

23 7 Redundancy and dismissal 7.1 Redundancy A redundancy may arise with the closure of a business, closure of a workplace or a reduction in the size of the workforce. Employees with two years continuous service have the right to a statutory redundancy payment as a minimum; your contract may provide for a more generous payment. There is no entitlement to a redundancy payment where you unreasonably refuse an offer of suitable alternative employment. There is no longer an age limit for entitlement to a statutory redundancy payment; it used to be age 65 but this was removed under the Employment Equality (Age) Regulations and retained under the present laws. You are entitled to one week s pay for every complete year worked in which you were aged up to 41, and one and a half week s pay for every year at age 41 or over, up to a maximum of 20 years. The weekly wage is capped at 450. The maximum payment is 13,500. Redundancy payments are still calculated using age, which although an example of direct age discrimination is enshrined in the legal system. The government has said that it can justify paying older people higher redundancy payments because it will be harder for them to find work again. If an employer is only making some of the workforce redundant, they must use a fair selection procedure, and must consult employees about the planned redundancies. If there is a recognised trade union the employer must consult it, in addition to consulting individual employees. If more than 100 redundancies are proposed, consultation must begin at least 45 days before the first redundancy; if more than 20 redundancies are planned the consultation period must be at least 30 days. The purpose of consultation is to avoid or reduce redundancies and to mitigate their effects. Employees and their representatives must be given enough information about the planned redundancies, the reasons for them, and how they will be carried out, for the consultation to be effective. Employers have a duty to offer employees at risk of redundancy suitable alternative employment. Factsheet 4 June of 37

24 Selection for redundancy: This should be carried out using objective criteria such as skills, productivity or the ability to meet the employer s specific needs. An employee who has been unfairly selected for redundancy can claim unfair dismissal. Some reasons for selection may also amount to unlawful discrimination; for example, someone selected for redundancy because of their sickness absence record may have a claim for disability discrimination. It would be unlawful for an employer to select people for redundancy because of their age, unless they could justify doing this. The traditional method of last in, first out could also amount to indirect age discrimination (against younger people) and could be unlawful unless justified Making a claim about redundancy A dismissal on the grounds of redundancy can be an unfair dismissal. If so, an Employment Tribunal will award compensation as well as any redundancy payment. This may arise, for example, where there was no genuine redundancy; the employer failed to consult the workforce; the employee was unfairly selected for redundancy or the employer failed to offer suitable alternative employment. If you have been made redundant but have not received a redundancy payment a complaint may be referred to an Employment Tribunal within six months of the dismissal. If you believe your redundancy was an unfair dismissal your complaint must be lodged with the Employment Tribunal within three months of the dismissal. If you are owed statutory redundancy pay by an employer who is insolvent it can be claimed from the National Insurance Fund, either through the receiver or liquidator, or directly from the Fund. Further information can be obtained from the Redundancy Payments Helpline on Factsheet 4 June of 37

25 7.2 Dismissal The Acas Code of Practice has been in force since 6 April 2009, and sets out the procedure that employers should follow when dismissing or taking disciplinary action against someone. For more information about this, see Age UK s Factsheet 70, Dealing with disputes at work Unfair dismissal The law relating to unfair dismissal is complex. If you feel that you have been, or are at risk of being unfairly dismissed from your job, seek advice immediately from your trade union, Citizens Advice Bureau or similar advice agency, or a solicitor. Complaints alleging unfair dismissal must be lodged with the Employment Tribunal within three months of the dismissal. Only employees are eligible to claim unfair dismissal; self-employed people are not protected. However, the distinction between these two groups is often blurred so it is always best to seek advice. Certain groups such as Crown employees are excluded, as are workers who are ordinarily employed outside Great Britain. If you commenced employment on or after, 6 April 2012, you must have been continuously employed for two years with the same employer, at the time of dismissal to claim unfair dismissal (and if your employment started prior to 6 April 2012, you require one year continuous employment). During the first two years of a job, employees have no right to claim unfair dismissal. The exception to this rule is for dismissals that are automatically unfair, see below. Individuals must pay a fee to lodge the claim and a further fee to proceed to a hearing. These fees will be up to 250 to lodge the claim and up to 950 for the hearing, depending on the type of claim issued. There is no longer an upper age limit for eligibility to claim unfair dismissal. The Employment Tribunal will consider whether there was a potentially fair reason for the dismissal, for example the conduct or performance of the employee. They will then consider whether the employer was reasonable in dismissing the employee for this reason and whether a correct procedure was used (see Age UK s Factsheet 70, Dealing with disputes at work, for information on fair dismissal procedures). Factsheet 4 June of 37

26 In some circumstances, a dismissal will be automatically unfair and questions of reasonableness and procedure will not come into it. For example, if someone is dismissed because they are pregnant, they have been involved in union activity or they have tried to assert a statutory right, the dismissal will be automatically unfair. If a claim for unfair dismissal is successful, the award will come in two parts. First, there is a basic award linked to the length of your service with an employer; this is calculated in the same way as a statutory redundancy payment (see section 7.1). Second, there is a compensatory award, which is based on your losses and future losses from being dismissed, for example loss of earnings. This part of the award is capped at a maximum of 74,200.The maximum total compensation for unfair dismissal is 87, Constructive dismissal It is sometimes possible to claim unfair dismissal even if you have resigned. If your employer s conduct towards you amounts to a fundamental breach of contract, you are entitled to resign without notice. This will be treated as a dismissal and, as long as you meet the eligibility requirements as above, you can claim unfair dismissal. A fundamental breach of contract could be something like an increase in hours that is not allowed for in the contract, or something that damages the relationship of trust and confidence with your employer, such as bullying or aggressive conduct by the employer, or a failure to deal fairly with a grievance. It will depend on the particular circumstances in each case as to whether it is serious enough to be a fundamental breach of contract that justifies resignation without notice. It is important that you do not delay for too long before resigning as this could be seen as an acceptance of the employer s conduct. If you are in this situation, you should seek advice immediately Wrongful dismissal Wrongful dismissal is different from unfair dismissal. The right not to be unfairly dismissed is a statutory right. A wrongful dismissal occurs when an employee is dismissed in breach of contract. Factsheet 4 June of 37

27 The most common example is dismissal without the amount of notice required under the contract. If you are wrongfully dismissed you can make a claim at the Employment Tribunal for any losses you have suffered. 8 Work and health If you become sick or disabled it does not necessarily mean that you will have to give up work. All employers, including small businesses, now have duties under the Equality Act (which absorbed the provisions of the Disability Discrimination Act) to make reasonable adjustments to ensure that you are not put at a substantial disadvantage by their employment arrangements or by any physical feature of the workplace. Examples might include flexibility about your hours, providing modified equipment, providing training or allocating some of your work to someone else. 8.1 Statutory Sick Pay If you fall ill and are unable to work your employer is required to pay you Statutory Sick Pay (SSP), providing you earn more than 111 each week. There is no upper age limit for entitlement to SSP. Some employers will pay you more than they are required to under the law, but SSP is an important safeguard. Once you have been ill for four days you are entitled to SSP of (from April 2014) a week for up to 28 weeks. If you have more than one 4-day period of sickness within 8 weeks this counts towards the same spell of 28 weeks. After 28 weeks SSP will end and if you are unable to return to work you will need to make an application for Employment and Support Allowance (contribution-based or income-based, depending on your National Insurance record), if you are under State Pension age. If you are over State Pension age, you are not eligible for Employment and Support Allowance and should claim your State Pension instead. Factsheet 4 June of 37

28 8.2 Other welfare benefits If you have a disability, or your income has reduced because you are ill, you may be entitled to other social security benefits or Working Tax Credit (see section 9). Working Tax Credit includes extra help for disabled workers and can be claimed while you are absent from work in certain circumstances, including during the first 28 weeks of sickness absence. Action: Contact a local advice agency for a benefits check or order one of Age UK s information guides on benefits. See section 10 for details of how to order Age UK information materials and for the telephone number for Age UK Advice. 8.3 Sickness outside of work If you are out of work because of ill health and receiving Employment and Support Allowance, Universal Credit, Income Support or Incapacity Benefit, you may be eligible for additional support from Jobcentre Plus, or qualify for the Access to Work scheme, which provides a subsidy to help meet some costs of, for example, travelling to work or making reasonable adjustments in the workplace. Ask your Jobcentre Plus adviser for more details. If you have a long-term health condition that is seriously impeding your ability to do your job or has led to a long period of sick leave you may decide to give up work. Alternatively, your employer may seek to dismiss you or offer you health-related retirement, although you may be able to challenge this dismissal as unfair. You may have a justifiable claim for unfair dismissal if your employer has not discussed your health problems with you or is unable to prove that you are incapable of doing the job. Your employer will also need to show that there is no alternative job available that you are capable of doing. In many cases you will also have protection under disability discrimination legislation. Factsheet 4 June of 37

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