Shared Parental Leave and Sex Discrimination Case

It was recently decided that it was not discriminatory to pay men more than the statutory minimum parental leave pay when the women were paid more than the minimum for maternity leave. 

The two appeals, which were heard together,Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall, agreed that whether the claim is expressed as direct or indirect discrimination or equal pay that men on shared paternal leave should not be paid less than woman who were on an enhanced rate pay on maternity leave. 

The Court decided as follows:

Direct Discrimination 

"The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner."

In-line with the Equality Act 2010, men on parental leave and women on maternity leave are not in comparable positions.

The exception to a comparison between employees for "special treatment afforded to a woman in connection with pregnancy or childbirth" is wide enough to include enhanced maternity pay. The minimum of 14 weeks' leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks and:

Equal Pay 

"A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."

The Equality Act 2010, however, provides that the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded elsewhere in the Act. 

Therefore, a contractual difference in shared parental leave pay between men and enhanced maternity pay for women is properly be characterised as an equal pay claim. The clause in a contract providing women with a higher level of pay is more favourable to women than men.

Indirect discrimination 

There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. 

The end result is that all of the Claimants' grounds of appeal were dismissed and one of the Respondent's cross appeals was allowed. All claims therefore dismissed.

This is worth remembering if you have employees who are looking to taking shared paternal or maternity leave then please contact us on 01245 261883.

Minimum Wage Case

In a recent case versus Frudd & Partington Group, the Employment Appeal Tribunal (EAT) discussed whether a warden or receptionist when on call from the evening to the morning were on “timed work” under the new National Minimum Wage (NMW) legislation? 

The Claimants argued that as they were on-call after their shift had finished, which was anytime between 4:30pm to 8pm, until 8am the following morning that they were entitled to “timed work” and be paid NMW for those hours that they were on-call. 

However, the EAT Judge’s agreed that from the time when their shifts ended and up until 10pm, they would be entitled to NMW as their responsibilities included showing prospective customers around the caravan site and welcoming late arrivals. 

The Claimants, were therefore not allowed to claim for work carried after 10pm, unless they attended an emergency whilst they were on-call. 

This was not the outcome in the Mencap vs Tomlinson-Blakecase were the EAT decided that the NMW should be paid as “work-time” for sleep-ins. 

This is worth remembering if you have employees who are on-call and are not required to attend at work premises, that they do not necessarily have to be paid for being on-call.  If you want to know more, please contact us on 01245 261883.

Employment law & HR advice for employers & businesses

At Little Rock we offer employers and small businesses the best commercial option available whether you employ one or hundred employees. We will work with you to understand your business to ensure that you have practical solutions at every stage. Whether you require ad-hoc or ongoing support through one of our retainer packages. 

We can advise you on a range of services, including the following:-

• Employee contracts and policies 
• Redundancy and re-organisation 
• Settlement agreements for employers 
• Discrimination 
• Unfair and wrongful dismissal 
• Transfer of undertakings 
• In-house managers training 
• Restriction clauses 
• Maternity/paternity rights 
• Employee status (including zero hours)

Getting the right HR support at the right time, can ensure that you don’t expose yourself to unnecessary risk and we can help you with the following:-

Significantly reduce the risks associated with employing staff, ensuring HR legal compliance, and eliminating the threat of fines 

Reduce the incidence of workplace conflict and the possibility of employment tribunals 

Increase staff productivity and engagement 

Maximise your investment in your staff which is possibly your biggest overhead

Our resources and services to your company can start from the recruitment & selection process, pre-employment checks, offer letters & contracts and staff handbooks through to training & development, performance appraisal, disciplinary & grievance and managing sickness absence; and when they leave their exit interviews, termination letters and settlement agreements. 

With our monthly retainer packages we can offer telephone support from 10 hours per year, employment contracts including policy documents up to employment training and face-to-face meetings. 

Contact us now on 01245 261883 or email contactus@littlerock.co.uk

7 things to do in HR this April

1. Ensure that your organisation is paying minimum wage

As from the 1st April 2019 the national minimum wage increases and this applies to all workers.

The details are as follows: 

£8.21 per hour – 25 years and over 

£7.70 per hour – 21 years to 24 years 

£6.15 per hour – 18 to 20 years 

£4.35 per hour – 16 to 17 years 

£3.90 per hour – apprentices under 19 years, or apprentices age 19 years and over, but in the first year of apprenticeship 

The law relates to the National Minimum Wage Act and the National Minimum Wage Regulations 2015 and the majority of workers older than compulsory school age qualify to receive the national minimum wage. There is a rate of the national minimum wage, referred to as the "national living wage", for workers aged 25 or over.

You can find out more information here. There is a specific process for calculating whether or not an employee has been paid the national minimum wage and employers must keep records that show that they have paid their workers the national minimum wage. Employers that fail to comply with national minimum wage rules may be subject to criminal prosecution, penalties and being publicly named.

2. Ensure your organisations payslips are updated

On the 6th April 2019 and for pay periods after that date there are two important changes. 

The first is that the employer must include different rates of hourly pay on the employees’ wage slip. So if the worker has a fixed monthly salary and their overtime is paid at a different hourly rate, these must be broken down.

The second is that this all workers, not just employees, are entitled to a payslip for periods on or after the 6th April 2019. 

3. Increase statutory family-related pay and statutory sick pay

From 7th April 2019, the statutory family pay rates will increased to £148.68 per week and the statutory sick pay increased to £94.25 from 6th April 2019. 

This applies to maternity, adoption, paternity pay, shared paternal leave and those on sick. 

4. Adjust your organisations statutory redundancy pay calculations

Employees with two years’ service that are made redundant must be paid an amount based on their weekly pay, length of service and age. This is subject to a weekly maximum amount, which is £535 from 6th April 2019.

5. Start work on your 2019 modern slavery statement

In 2018, the Home Office wrote to larger organisations, with a turnover of at least £36 million per year, advising the requirement for them to publish their annual modern slavery and human trafficking statements and warning that “continued non-compliance will not be tolerated”.

Whilst there is no set date to publish this information, the government guidelines are six months from the end of the organisations financial year. 

6. Meet the gender pay gap deadline

Employers with over 250 employees, will be finishing off their second gender pay gap reports. The deadline for private-sector and voluntary-sector was the 4th April 2019, and for public-sector the 30th March 2019. 

The report must appear on the employer’s website, be accessible to the public and remain there for three years. 

The report results need to be registered on the government’s reporting website. You no not have to put a narrative with the results; however, some larger companies are choosing to do so in order to explain any gaps. 

Failure to publish the report could result in public criticism for large employees. 

7. Continue to monitor Brexit negotiations  

Watch this space, as we are doing with Brexit developments. 

With the exit date now moved to next year, we would urge employees who have EEA nationals working for them to apply for settled or pre-settled status, so that they can remain living and working in the UK indefinitely.

For more information on all employment issues, call us on 01245 261883 or email contactus@littlerock.co.uk.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883. 

How is 'long term' to be judged for the purposes of the definition of disability?

In December 2015 a Science Teacher, Mrs Nissa, was suffering with symptoms of fibromyalgia and in August 2016 she resigned from her post, as she was unable to continue to work. 

Mrs Nissa claimed for disability discrimination and said that her impairment had caused her to suffer substantial and long-term adverse effects in her ability to carry out day-to-day activities. Her employer disputed this.  

The tribunal noted that the medical diagnosis of ‘fibromyalgia’ was not made until 12th August 2016 and was subject to a caveat in October that her symptoms might improve now that she was no longer in employment and therefore could not have been likely for the effects to be long-term. If the claimant’s impairment had been long-term, it would be difficult for the tribunal to ascertain whether this was a work related disability.  

The Employment Appeal Tribunal highlighted that they had taken the wrong approach and it should consider whether this “it could well happen” and not if it were “likely”. In the SCA Packaging Ltd v Boyle case, the House of Lords, was asked to project forward to ascertain whether impairment is long-term. In Nissa’s case they were focussing on the diagnosis rather than the effects of the impairment, which was too narrow. They should have looked at the broader view of the evidence prior to 31st August 2016 and the reality of risk.  

The case was remitted to a different tribunal for reconsideration after it was decided that the “substantial adverse effect” stand failed to take into account relevant evidence from Mrs Nissa’s testimony regarding that her daily chores had become "extremely difficult, painful and exhausting". 

You can read more in the EAT’s guidance here: Nissa v Waverly Education Foundation.

For more information on all employment issues, call us on 01245 261883 or email contactus@littlerock.co.uk.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883.

Are employees getting to work late due to transport disruptions or the weather?

What should employers do if their employees can’t get into work because of transport disruptions or the weather?

Train services can be erratic especially when there are strikes or changes to the timetables. The hot weather will also affect the train lines and cables. 

There are certain obligations both on the employee and employer. The employee should make every effort to contact the employer to explain their problem and to indicate as best they can when they are likely to be able to get to work.  For small organisations absence of key employees can have a big impact if the absence is prolonged and unplanned.

If the employee fails to make any sort of contact to the employer to inform them that they are going to be absent, you can think about treating this as an unauthorised absence.

An employer may decide to exercise their discretion and pay employees for some or all the days they cannot make it into work, where their absence is beyond their control. Or you can allow them, if they can to work from home.

However, you must ensure all employees are treated in the same manner if they cannot get to work due to reasons outside of their control, so if in winter there is snow and people can’t get to work you must adopt the same approach.

A sensible way to approach their absence is to ask the employee to take the time that they are unable to work as holiday entitlement or take the extra days as unpaid leave. If that is not possible you should put together a practical solution to allow the employee to make up the extra time such as unpaid overtime over an agreed period i.e. if they can’t work for a day which is 8 hours and a normal working day is 8 hours then they work 1 extra unpaid hour for the next 8 working days.

Employers should review their holiday policies and make sure they are updated to cover these contingencies and to communicate to all employees what is expected in these circumstances and how the employees should act. 

For more information on all employment issues, call us on 01245 261883 or email contactus@littlerock.co.uk.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883.

Want to know how to dismiss an employee correctly?

If an employee has been employed for two years or more, and you want to dismiss them, you cannot just dismiss the employee without a fair reason and a fair process.  If you dismiss the employee without dealing with it through the correct process they might have a claim for unfair dismissal.  This is likely to cost you thousands of pounds if you do it wrong!

If the employee has been employed less than two years, they do not meet the qualifying period of two years to bring a claim for unfair dismissal. As long as it is a straightforward reason that you want to dismiss the employee, you can dismiss them more easily. 

Review the employee performance at the end of the probationary period and if they are not performing, have not made improvements or unsuitable for the business you may want to terminate their employment. 

Once you have decided to dismiss an employee and followed the correct process you should provide in writing when the employment will terminate. You do not need to give full written reasons as to why their employment has been terminated. 

If there are post-employment restrictions in the employment contract, you should set these out in the termination letter to highlight that they are still bound by the terms in their employment contract.

For more information on all employment issues, call us on 01245 261883

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883