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Employment Law Roundup – May 2018

May 4th, 2018

With the gender pay gap reports now published, we know that there is a significant gender pay gap in the UK with men at many companies being paid on average more than women. It does not necessarily mean that those businesses have an equal pay problem – that depends on the reason for the gap. One reason can be that women often take on the primary childcare role which can have a knock-on effect on their earnings potential.

The government had hoped that the introduction of shared parental leave in 2015 would help to address this societal difference. The legislation allows for either parent to take shared parental leave if the mother curtails her maternity leave. Shared parental leave is paid at a statutory rate. Many employers pay an enhanced rate of maternity pay, but less employers have chosen to do the same for shared parental pay. This is thought to have contributed to the slow uptake for shared parental leave (as low as 2% according to the Department for Business recently).

In Capita v Ali, Mr Ali raised an employment tribunal claim against his employer for direct sex discrimination when he was not given enhanced shared parental pay, in line with the enhanced maternity pay that a woman on maternity leave would have received. Mr Ali argued that as the shared parental leave regime allows parents to choose which of them takes leave to care for their child (after the mother’s two-week compulsory maternity leave period) it was discrimination if a man was not paid the same as a woman for the remaining leave. The tribunal agreed with him, highlighting that men were now being encouraged to take a greater role in childcare and there should not be an assumption that the mother is always best placed to do that.

The Employment Appeal Tribunal disagreed. Women who gave up their maternity leave and instead took shared parental leave with the father were not paid enhanced shared parental pay. They were paid the same as men – the statutory rate. The purpose of the relevant EU legislation on maternity leave is the health and wellbeing of the pregnant and birth mother, rather than the care of the child. Mr Ali should have been compared with a woman on shared parental leave and not a woman on maternity leave. He was paid the same as a woman on shared parental leave, so he lost his sex discrimination claim.

Interestingly, the EAT did comment that after 26 weeks the purpose of maternity leave might change from biological recovery from childbirth and the special bonding period between mother and child. It may be possible after that to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. We expect further case law in this area. For now, you should ensure that you pay men the same shared parental pay rate as you pay women who take shared parental leave. Read the rest of this entry »

Employment Law Roundup – April 2018

April 4th, 2018

The role of Human Resources in disciplinary proceedings continues to be a hot topic. Managers conducting a disciplinary investigation or hearing may need advice from HR. However, HR should confine their advice to technical matters such as the law and procedure. If HR try and influence the decision-maker or persuade the manager to dismiss, then this may make the dismissal unfair.

This is illustrated in the case of Mr Ramphal who was unfairly dismissed from the Department for Transport, when an HR officer persuaded the dismissing manager to change his view of the sanction from a final written warning to dismissal.

This does not mean that HR can never be the decision-makers in a case. Some smaller businesses rely on HR professionals to conduct investigations and even disciplinary hearings and appeals.  The trick is to make sure that the role of HR is clearly defined. If an HR professional conducts the investigation for example, then they should not advise the manager on the disciplinary hearing or appeal. The procedure should be fair and transparent. The employee must be given the opportunity to put his case to the true decision-maker.

In a case involving Arnold Clark, different members of HR were the decision-makers at the investigation, dismissal and appeal stages. This was acceptable. However, the dismissal of Mr Spoor was still unfair, as the HR professional who conducted the disciplinary hearing did not take account of Mr Spoor’s long service (42 years) and exemplary record when dismissing him for physical violence. Read the rest of this entry »

Employment Law Roundup – March 2018

March 7th, 2018

You may remember the press coverage of the investigation into the former children’s charity Keeping Kids Company and its eventual liquidation in the summer of 2015. The Employment Appeal Tribunal has now ruled that the charity breached collective redundancy laws by failing to collectively consult in the run-up to it stopping operations.

When proposing to dismiss 20 or more employees within a period of 90 days at one establishment, section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires employers to inform and consult with representatives of affected employees. Consultation must begin in ‘good time’. A breach of these collective consultation requirements entitles employees to a protective award of up to 90 days’ pay.

The charity suffered ongoing financial difficulties and on 12 June 2015 applied for a government grant of £3 million. The application included a business plan to restructure the company and discussed removing 50% of the posts. No specific posts were identified at that point. On 29 July the government offered the grant. The charity sent an email to all staff saying that matters had been resolved and salaries would be paid the next day. On 30 July it became known that the police were investigating allegations against the charity concerning the safeguarding of children. On 3 August the government terminated the agreement and demanded repayment of the grant. On 5 August the charity closed and all employees were dismissed.

Read the rest of this entry »

Employment Law Roundup – February 2018

February 8th, 2018

As an employer you must be careful not to discriminate against someone because they have a disability. However, what about someone who has a medical condition which isn’t severe enough to amount to a disability under the law? Well surprisingly, a job applicant who was not disabled has won her case of disability discrimination.

Ms Coffey was a police officer in Wiltshire police force. She had some hearing loss, but this was not bad enough for her to be classed as disabled under the Equality Act 2010. Her hearing loss was minimal: just below the recruitment standards for the police force. However, she was accepted to the Wiltshire force after passing a practical hearing test.

Ms Coffey later applied for a transfer to the Norfolk police force. They rejected her because of her hearing without doing any practical test at work, even though that was recommended by occupational health. The Norfolk force thought that her hearing might deteriorate and she would have to do restricted duties, so they rejected her application.

The Employment Appeal Tribunal decided that this decision amounted to disability discrimination. It was based on a perception that Ms Coffey would be disabled in the future. The judge said that there would be a gap in equality law if an employer could dismiss someone before they became disabled to avoid the duty to make reasonable adjustments.  That does make sense – but it leaves employers in a more uncertain position than previously. Read the rest of this entry »

Employment Law Roundup – January 2018

January 5th, 2018

Worker status and rights are rarely out of the press at the moment. The recent EU holiday pay case of King v Sash Window Workshop adds another dimension and could have massive implications if you hire individuals on a self-employed basis as consultants or contractors.

If the contractor later brings and wins an employment tribunal case which says that they are a ‘worker’, rather than being genuinely self-employed, they will get all of the rights that go along with being a worker. While these rights are not as extensive as employment rights, they do include the right to 5.6 weeks’ paid holiday a year.

Mr King was a self-employed salesman who brought a claim for worker status and was successful. He had never asked to take holidays or been paid for them. However, the Court of Justice of the European Union has held that holiday pay accrued during the whole period that he worked for Sash Window Workshop. He was entitled to be paid for 13 years of holiday back-pay.

There are some questions which still need to be answered by the Court of Appeal, but this case may open up some businesses to the risk of large holiday pay claims from people they thought were self-employed – and going back much further than the two years we previously thought. This case also increases the stakes in the gig economy worker cases going through the courts at the moment. Read the rest of this entry »