The Law and Elderly People

Aled Griffiths, Dr Gwyneth Roberts, Gwyneth Roberts

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134810079
• Edition: 2
• Topic: Medicine
• Subtopic: Health Care Delivery

Although the number of elderly people in Britain is increasing steadily, the law in relation to their particular needs is a relatively neglected field. The Law and Elderly People was the first text to provide easily accessible information for those involved in advice-giving and service provision in this rapidly developing field. This second edition has been fully revised and completely updated to reflect the major legal and social changes which have recently occurred. Concerned for the independence and autonomy of both young elderly and the old elderly, the book covers employment and income, accomodation and housing, community and residential care, health provision and delivery and family relationships, thus providing an important guide to the most important legal issues.
The Law and Elderly People will be of practical help to all those concerned with the welfare of the elderly and to undergraduates and lecturers in social work, law and gerontology.

1 Employment, income and retirement

Aled Griffiths and Hugh Howard

1.1.1 During the course of the century there has been a considerable decline in the number of those of retirement age still at work. At the turn of the century more than two-thirds of men aged sixty-five and over were in the labour force, but by 1989 only 9 per cent were so employed (Walker and Taylor 1992). In contrast, the proportion of economically active women has slightly increased in very recent years. For instance, the economic activity rate for women aged sixty to sixty-four rose from 19 per cent in 1987 to 23 per cent in 1992 (OPCS 1992). One explanation for the different trend is that women are much more likely than men to work part-time (Dibden and Hibbett 1993).

1.1.2 Recent research into the effect of age on performance suggests that age is not a sensible basis on which to judge the ability to learn or work, save where muscular strength is the primary requirement (Trinder et al. 1992). Similarly, evidence exists to show that older workers’ supposed inability to cope with technological changes has been overstated; most can cope with the changes demanded of them (Trinder 1990).

1.1.3 Nevertheless, the trend towards earlier retirement for men seems set to continue. Initially the prerogative of managers and white-collar workers, early retirement has spread to wider sections of the work-force and has generally been seen by managers and trade unions as an uncontentious way of achieving ‘headcount reduction’ (Cliff 1991). In fact, the economic activity rate for men aged sixty to sixty-four dropped from 55 per cent in 1987 to 53 per cent in 1992 (OPCS 1992). Thus, almost half the male population is economically inactive at sixty years of age. An OPCS retirement survey found a desire among older workers for gradual retirement, with the option of part-time work being available. Men, however, usually retire abruptly and part-time work is likely to involve a change of employer and occupational downgrading (Casey et al 1991). In short, particular work and retirement patterns are being forced on older people as a result of age discrimination, and inflexible personal and pension policies (Trinder et al. 1992). Many non-working older people want to work (CBI 1989).

1.1.4 This is not to argue that retirement age should be raised for everyone. Research findings suggest that for some people retirement improves health. According to American literature, studies carried out in the 1960s, which suggested that imposed retirement had a negative effect on self-image, gave grossly exaggerated results. Loss of work may not be nearly as devastating to the individual as was once assumed (Ekerdt 1983). The status of older people may also be enhanced by the legitimisation of leisure (Pampel 1981). The argument here is simply that individuals should be allowed greater choice whether or not they continue to work beyond pensionable age.

1.1.5 The Employment Department has recognised the need for a change in attitude and has set up an Advisory Group. The long-term aim is to encourage employers to make the most of older workers’ expertise and abandon age discrimination in all their personnel policies, including recruitment and training policies (Employment Gazette: March 1993). It would, however, be wrong to be over-optimistic about the outcome. Only a few years ago, the government of the day elected not to support a Private Member's Bill entitled the Employment Upper Age in Advertisement Bill 1990. The Bill would have made it an offence to refer to an upper age limit in advertisements. It appears that the government's view was that ageism could not be successfully defeated by law, though Employment Department local centres were instructed to dissuade employers from putting upper age limits in advertisements (Eagle 1991). In the meantime, between a quarter and a third of all advertisements contain age restrictions. Moreover, age is included in only a third of employers’ equal opportunities policies and not all employers have such policies (Dibden and Hibbett 1993).

The Social Chapter signed by all member states of the European Union stresses the importance of combating every form of discrimination, but makes no specific reference to age discrimination. Numerous EC directives, which have the force of law, exist to combat discrimination based on gender and their impact has been significant, particularly in relation to pension and retirement schemes (see below at paras. 1.6.4 and 1.9.2). In addition, it is open to individuals who have suffered age discrimination in employment to petition the European Parliament. Indeed, an EU pressure group, Eurolink-Age, has initiated a campaign to encourage aggrieved individuals to do so, and a draft form of Petition is available (Eagle 1990).

1.1.6 Research also shows little evidence of employers helping employees to prepare for retirement (Trinder et al. 1992). This is to be regretted for, as others have stressed, improvement in the standard of living for many individuals will come only via a long-term process of argument and negotiation with a range of organisations and institutions within each community (Laczko and Phillipson 1991). This chapter will hopefully assist those engaged in the process.

1.2.1 EMPLOYMENT PROTECTION

In Great Britain about two-thirds of elderly people, 5.7 million, live on the margins of poverty, as defined by the state, compared with around one-fifth of the non-elderly. Even those in employment are often on low incomes (Walker 1991). Employment protection and wage protection are therefore of crucial importance.

1.2.2 THE CONTRACT OF EMPLOYMENT

Where a dispute arises over the terms of a contract, particularly in relation to rights arising on its termination, it is usually important for the employee to be able to ascertain its contents. It is still common practice for many contracts of employment to be entered into orally, or both orally and in writing. In accordance with s.1 of the Employment Protection (Consolidation) Act 1978 (EP(C)A 1978), most employees who work for more than eight hours a week are entitled to receive a written statement from their employer setting out the terms of the contract not later than two months after commencement of employment. The existence of the contract will not, however, be affected should a statement not be issued. In such circumstances, the terms of the contract will be deduced from custom, practice or by implication. The statutory statement itself is not conclusive evidence of the terms of the contract, although it can help to establish what those terms are.

The statement must include information on the scale and rate of enumeration, terms and conditions relating to hours of work, entitlement to holidays and holiday pay, incapacity for work due to sickness or injury, sick pay, pensions and pension schemes, the length of required notice (employee and employer), job title, place or places of work, and any relevant collective agreements. Individuals employed by organisations who employ twenty employees or more are also entitled to receive information relating to any disciplinary procedures adopted by the employer. Should no written statement be provided, or should the one which has been provided be incomplete, an employee can ask an industrial tribunal to determine what should be included in it.

1.2.3 WAGES PROTECTION

Section 35 of the Trade Union Reform and Employment Rights Act 1993 (TURERA 1993) abolished Wages Councils. Over 2.5 million workers in a number of industries, including retail, hotel and catering, hairdressing and clothing manufacturing, lost their right to receive legal minimum rates of pay. However, those engaged in the relevant industries prior to the legislative change will probably retain some protection against employers who subsequently attempt to reduce wages. An action for breach of contract based on an implied term that such employees be paid not less than the legal minimum rate may possibly be recognised by the courts (Hunt and Miller 1994).

The EP(C)A 1978 (ss.8–10) provides most employees with a right to an itemised pay statement. Provided that the employee works for eight hours or more (or sixteen if the employer employs less than twenty employees), he/she has the right to particulars of the gross amount of wages or salary and the amount of any variable or fixed deductions.

1.3.1 DISABLED EMPLOYEES

Employment opportunities for disabled people are in principle assisted by the Quota Scheme introduced by the Disabled Persons (Employment) Acts 1944 and 1958 (DP(E)A 1944 and 1958) which provide that 3 per cent of employees in firms with more than twenty employees should be registered as disabled.

Although the duty is not binding on the Crown, government departments have nevertheless agreed to accept the same responsibilities as other employers (Employment Gazette, April 1993). The National Health Service and Community Care Act 1990 (NHSCCA 1990) has also removed Crown immunity from NHS employers. To register, a person must be substantially handicapped in obtaining or keeping employment. Particular jobs, such as car-park attendant, are designated as suitable for disabled persons and they must be employed in preference to able-bodied persons. Some hazardous industries are, however, exempted. It is also possible to apply for a special permit if the full quota cannot be filled, either because of the lack of a suitable candidate or the unsuitability of the work.

1.3.2 It is an offence to disregard the statutory provisions, but prosecutions are rare. Three-quarters of employers fail to meet the quotas, but since 1944 there have only been some ten prosecutions under the legislation (Employment Policy Institute 1992). Nevertheless, registration as a disabled person should not be regarded as futile, since a degree of protection has been established at common law. In Kerr v. Atkinson's Vehicles Ltd (1974), it was held that an employer should not expect a normal standard of work or output from a disabled person. Dismissal would be fair only if it could be shown that the standard of a person's work was below that which could reasonably be expected from him/her. An employer would also need to show the case had been given special consideration and that the needs of the business made dismissal necessary (Pascoe v. Hallen and Medway (1975)).

1.3.3 The Employment Service (an Executive Agency of the Employment Department) has published a Code of Good Practice on the employment of people with disabilities. Although compliance with the guidance is voluntary, its contents will be taken into account when deciding whether a dismissal is fair or not (Robertson 1993).

1.3.4 Companies which employ more than 250 employees have, also, in their Annual Reports, to outline their policies on the recruitment, training and career development of workers with disabilities (Companies (Directors’ Report) (Employment of Disabled Persons) Regulations 1980).

1.4.1 MINIMUM NOTICE PERIODS

Except where there is serious misconduct, a person is entitled to be given notice for the period set out in his/her contract of employment. A contract for a fixed term does not require notice since it is brought to an end automatically by passage of time (Labour Party v. Oakley (1987)). Failure to renew a fixed-term contract may, however, amount to an unfair dismissal (Terry v. East Sussex County Council (1977); Johnstone v. BBC Enterprises Ltd (1993)). Where there is no express provision for notice in the contract, reasonable notice must be given. What is regarded as reasonable will vary, depending upon the position held by the employee. It has been held that a senior engineer was entitled to more that a month's notice, and that reasonable notice in such circumstances could have been anything between six months and one year (Hill v. C. A. Parsons & Co. Ltd (1971)). Whatever the contract provides, the length of notice cannot be shorter than the minimum required by statute. This varies according to length of service. After four weeks, an employee is entitled to one week's notice, until he/she has been engaged for up to two years. The employee is then entitled to one week's notice for each completed year of service up to a maximum of twelve weeks (EP(C)A 1978, s.49(1)). A person employed for seven years or over, for example, would be entitled to seven weeks’ notice.

Where an employee is given notice, but is asked to work until the notice has expired, dismissal will not be effective until the end of that period. In effect, should an employee leave sooner, he/she will be regarded as having brought the employment to an end, rather than having been dismissed (Walker v. Cotswold Chine Home School (1977)).

1.4.2 An employee must give a minimum of one week's notice of termination of employment, but the contract of employment can stipulate a longer period (EP(C)A 1978 s.49(2)). In theory, an employee who failed to work out his/her period of notice could be sued for breach of contract. This is unlikely in practice.

1.5.1 FRUSTRATION OF THE CONTRACT

Where performance of a contract of employment is rendered impossible by some intervening event, it will be brought to an end automatically by operation of law. In legal terms, the contract is said to have been ‘frustrated’. The most common causes of frustration are probably sickness or injury. An accident may be so serious that it is apparent that the employee is no longer able to perform his/her part of the contract.

Prolonged periods of sickness could also result in the employer claiming the contract of employment no longer exists. Relevant considerations are the length of employment; how long it could have been expected to continue were it not for the illness or injury; the nature of the work; the type of employment and the employer's need to have the work done; the terms of the contract, including the provision of sick pay; and whether, in all the circumstances, a reasonable employer could be expected to give the employee more time to return to work (Egg Stores (Stamford Hill) Ltd v. Leibovici (1977)).

Where an occupational sick-pay scheme exists, the contract will normally continue until such time as payment under the scheme comes to an end, but this is not always the case. The contract may come to an end earlier where sickness or injury is so serious that there is no prospect, in the foreseeable future, of the employee returning to work. It should be stressed, however, that absence from work, even for a long period of time, does not necessarily mean that the contract has been frustrated. In Maxwell v. Walter Howard Designs Ltd (1975), the employee had been sick for nearly two years. It was held that the post did not need a permanent replacement and that the contract of employment had not, therefore, been frustrated. Where the contract has been frustrated, the employer need not dismiss the employee, but could do so, and claim the dismissal to have been fair.

1.6.1 UNFAIR AND WRONGFUL DISMISSAL

Under the EP(C)A 1978, protection against unfair dismissal extends to most employees who can show they have been in continuous employment for two years and for not less than sixteen hours per week (or for not less than eight hours per week after five years of employment) (EP(C)A 1978, s.64 as amended). A person of normal retiring age is outside this protection. In occupations where there is no established age for retiring, the normal retirement age will be sixty-five for both men and women. Where dismissal is on the grounds of an employee's membership of a trade union (or his/her intention to join one), it is not necessary to show that there has been continuous employment for the requisite period. The same rule applies where a person has been dismissed because of refusal to join a trade union.

1.6.2 A person who does not have a sufficient period of continuous employment, or is past normal retiring age (see para. 1.6.3 below), or is over sixty-five years of age, may be able to bring a claim for breach of contract based on wrongful dismissal (Age Concern Scotland v. Hines (1983)). An action for wrongful dismissal would also be the appropriate course of action in the case of a highly paid employee. The maximum compensatory award for unfair dismissal is currently £11,000, plus an appropriate basic award. Substantially higher damages may be obtainable in appropriate cases for actions brought on the basis of a common law action for wrongful dismissal. Compensation for wrongful dismissal must be paid without deduction of any payments due to the employee from an occupational pension scheme (NORCROS PLC v. Hopkins (1993)).

1.6.3 UN...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Contributors
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Preface
• Acknowledgements
• Abbreviations
• 1 Employment, Income and Retirement
• 2 Living in the Community
• 3 Care in the Community
• 4 Residential and Nursing Care
• 5 Health Care
• 6 Complaints and Redress of Grievances in Health Care
• 7 Personal and Family Matters
• Appendix I
• Appendix II
• Bibliography
• Index