Mills & Reeve: HR Law Live

Court of Appeal takes new look at Equality Act exceptions for pregnancy and childbirth

Last month’s decision from the Court of Appeal should dispel any remaining doubts about whether employers are legally required to pay fathers taking shared parental leave as generously as mothers on maternity leave. In two related appeals from last year’s decisions in the Employment Appeal Tribunal, the Court of Appeal has said that no breach of the Equality Act is involved in giving birth mothers enhanced pay while they are on maternity leave, but only paying statutory shared parental pay to fathers taking shared parental leave.

The first of these cases (Ali v Capita Customer Management) was a claim for direct sex discrimination. In the second (Hextall v Leicestershire Police) there was an issue as to whether the proceedings should have been framed as an indirect discrimination or equal pay claim. In both cases the Court of Appeal ruled that the employers could rely on the Equality Act exception which states that where the claimant is a man “no account is to be taken of special treatment afforded to a women in connection with pregnancy or childbirth”.

The Court of Appeal was not impressed with arguments that periods of statutory maternity leave with enhanced pay in excess of the compulsory two week period should not be regarded as connected with pregnancy and childbirth. It is possible, however, that it might have been more open to such arguments if the period of enhanced statutory pay had been significantly in excess of the 14 week protected period guaranteed by the Pregnant Workers’ Directive (the period of full pay was 14 weeks in Ali and 18 weeks in Hextall).

It also rejected arguments that it was significant that the childbirth and pregnancy exception does not appear in the definition of indirect discrimination in the Equality Act. As well as more technical observations about the selection of the pool for comparison purposes, it said that it would be “very odd” if arrangements which fell within the exception in relation to direct discrimination and equal pay would still need to be scrutinised under the Act’s provisions on indirect discrimination.

Subject to any final appeal to the Supreme Court, it does now seem that the arguments about the lawfulness of enhancing statutory maternity pay (certainly for the first 14 weeks of leave) while failing to enhance statutory shared parental pay have been settled. However, that doesn’t mean that all arrangements with regard to shared parental leave will necessarily be given a clean bill of health, or that the pressure to give fathers caring for new-born children better rights will diminish.

Special redundancy protection to be extended to pregnant women and maternity leave returners

The Government is consulting on plans to extend the redundancy rights currently enjoyed by women on maternity leave to pregnant women and women returning to work after maternity leave. There is also a possibility of giving similar rights to parents returning to work from adoption or parental leave.

The fact that women on maternity leave are better protected against being made redundant than pregnant women or new mothers who have recently returned to work is an unexplained anomaly in UK employment law. As well as the broad protection against sex and pregnancy related discrimination which all women enjoy, mothers on maternity leave have an additional right to be considered for suitable alternative vacancies in a redundancy situation, in preference to anyone else under threat of redundancy.

The Government is now planning to create a consistent regime to protect pregnant women and new mothers by extending these special redundancy rights. The proposal is that these additional rights would apply to all mothers from the point they tell their employer they are pregnant to the end of a defined period after they return to work from maternity leave. That is likely to be six months, though the Government is consulting about the exact period.

The Government is also consider according similar rights to parents returning from other types of leave including adoption leave, parental leave and shared parental leave. Some of the issues around timing and eligibility are quite complicated for these additional types of leave. As well as seeking views through the consultation process, the Government plans to refine its thinking by using a specialist task force.

The consultation closes on 5 April 2019, but no implementation timetable has yet been published.

Top ten employment law topics for 2019

To mark the start of 2019, we have put together our review of the past year. We have selected the topics that we think have most engaged employment lawyers and human resources practitioners over the past 12 months and will continue to be significant in the year ahead.

The review starts with an explanation of the new immigration arrangements that are likely to apply post-Brexit, though many details are still unclear. Other topics covered include #MeToo, the gig economy and the implications of the latest case law on the interpretation of employment contracts.

Conference season provides impetus for new employment policy

A number of new employment policy initiatives have been launched by the Government to coincide with the Conservative Party conference last week. These include:

• Tipping: new legislation will be introduced to ensure that all tips left for workers will go to them in full. At the moment this depends on how the tip is paid and on the precise agreement reached between staff and restaurant owner.
• Parental pay transparency: the Government will be consulting on new legislation which would require employers with more than 250 staff to publish their parental leave and pay policies. Currently this is voluntary, and many employers (in both public and private sectors) do not make this information publicly available.
• Flexible working: the Government will consider creating a duty for employers to consider whether a job can be done flexibly, and make that clear when advertising.  These plans appear to extend to all employers, not just the larger ones.
• Apprenticeships: an extra £90 million of funding has been announced to enable employers to invest 25% of their apprenticeship levy in creating apprenticeships for people working in their supply chains. Under the funding rules as presently drafted, they are only allowed to spend these funds on training their own employees, or those of an associated company.

At last month's Labour Party conference it was the Shadow Chancellor’s employee share ownership proposals which caught the headlines. Although short of detail at the moment, the outline of the plan is as follows:

• Companies with over 250 staff would have to place 1% of their shares each year (up to a maximum of 10%) into an “inclusive share ownership fund”.
• The dividend income going to each worker would be capped at £500, with the rest going into a fund to pay for public services and welfare.
• The funds would be held and managed collectively, with a bar on selling or trading.

These share ownership plans have already attracted a great deal of comment, much of it unfavourable. However, even if there is a change of government, there is still a fair way to go before they can be translated into employment policy.

Paid bereavement leave for parents to be implemented in 2020

The Act laying down the framework for two weeks’ statutory leave for bereaved parents received Royal Assent last month.  It is due to come into effect at some point in 2020, since the Government wishes to give employers and payroll providers at least 18 months to prepare.

The full details of the new right will be set out in regulations which have not yet been made.  However, the Act lays down this broad framework:

• Bereaved parents of a child under 18 will have a “day 1” right to take up to two weeks’ leave from their employment in the 56 days after the child’s death.
• In addition, employees who have completed at least 26 weeks’ continuous service will be entitled to parental bereavement pay at the statutory flat rate (currently £145.18 a week) or 90% of their average weekly earnings (whichever is lower).
• The right will extend to parents of stillborn children if the stillbirth occurs after 24 weeks of pregnancy.  The Government has said that existing maternity and paternity rights in relation to children who die while parents are already accessing these rights will remain.
• If more than one of their children dies before the age of 18, a bereaved parent will be entitled to leave in respect of each child.
• There will be similar provisions to those applying to other types of statutory leave when it comes to overlapping contractual rights, continuation of employment, protection from detriment and the like.

These proposals started off as a private member’s Bill. Although they have now been adopted as Government policy, their relatively tentative start may reflect differing views about whether a new type of statutory leave was necessarily the best approach.

Clearly it is not possible to have a different type of statutory leave to match each type of circumstance in which an employee may legitimately need time off work for family reasons. What this new right does is to supplement the existing right to reasonable unpaid time off “in consequence of the death of a dependant” to provide an enhanced entitlement where that dependant is a child.

Many employers are already considerably more generous and flexible in terms of paid compassionate leave than this new statutory scheme. Equally, the introduction of this scheme will not preclude the need for HR departments to engage with requests for leave in a variety of personal circumstances, including other types of bereavement which may have an equally traumatic effect on an employee as the loss of a child.

Could employers’ arrangements for parental pay be indirectly discriminatory?

Last month we had a clear ruling from the Employment Appeal Tribunal that failing to pay men on shared parental leave the same as women on maternity leave was not direct sex discrimination. Now have we have a second decision on similar facts which confirms this position, but raises the possibility that such arrangements could be indirectly discriminatory against men.

The argument is that while such arrangements are not directly discriminatory against men (in part because they also apply to women taking SPL) they nonetheless put men at a “particular” disadvantage. It is suggested that this is because, unlike at least some women, they do not have the option of claiming maternity leave as the birth mother. 

The EAT has decided that this issue was not properly addressed at the employment tribunal, so it has been remitted for reconsideration by a newly constituted tribunal. Among other things, it will need to decide whether there is sufficient evidence that the arrangements do indeed put men at a particular disadvantage, bearing in mind that some women who are not birth mothers are also eligible for SPL. If the claimant wins on this point, the employer will still be able to argue that the arrangements can be justified as a proportionate means of achieving a legitimate aim.

Although the employment tribunal’s decision on this point will not bind other tribunals, it is likely to provide useful guidance to employers, particularly now that the EAT has intervened to formulate the questions it will need to address.

Failing to enhance statutory shared parental pay was not discriminatory

The EAT has overturned an employment tribunal’s decision that failure to provide a period of full pay to a man taking shared parental leave amounted to sex discrimination. The EAT said that it was not possible to make a comparison for these purposes between a man on shared parental leave and a woman during the first six months of her maternity leave, so it was lawful to treat Mr Ali differently.

The mother of Mr Ali’s child had ended her maternity leave two weeks after the birth, and transferred the balance of her maternity leave to him under the statutory shared parental leave scheme. His employer provided 14 weeks’ basic pay for women on maternity leave. He argued that he should have the same entitlement while on shared parental leave, since failure to match a mother’s entitlement in these circumstances amounted to unlawful sex discrimination.

His argument succeeded before the employment tribunal, but failed to convince the EAT.  The EAT said that the purpose of maternity leave and pay was primarily to protect the health of the mother. This contrasted with adoption and shared parental leave, where the primary purpose was care of a child. So to evaluate whether denying the father enhanced pay was discriminatory, the appropriate comparator was a women taking shared parental leave, not a mother taking maternity leave. Since a woman taking shared parental leave would not be entitled to enhanced pay either, Mr Ali’s claim of direct sex discrimination failed.

While this decision will come as a relief to employers, three points are worth adding:

• Firstly, this decision is about the arrangements made to support women during ordinary maternity leave. It is possible that tribunals would take an different approach in relation to additional maternity leave, where is arguable that the purpose of the leave is different.
• Secondly, while this decision confirms that there is no legal compulsion to do this, a strong business case can still be made for enhancing statutory shared parental pay and adoption pay.
• Finally, the EAT heard another appeal on a similar point earlier this year (Hextall v Chief Constable of Leicestershire Police) and we are still waiting for the decision to be published. We are assuming the EAT will take the same approach in this later case!

Failure to enhance male pay during shared parental leave was direct sex discrimination

An employment tribunal has decided that failure to enhance statutory shared parental pay for a male employee starting shared parental leave was direct sex discrimination. He successfully argued that he was entitled to the same pay as a female employee on maternity leave.

Mr Ali’s partner was suffering from post-natal depression and was proposing to return to work two weeks after the birth, based on medical advice. Mr Ali wished to take shared parental leave from that point but was told he would only receive statutory shared parental pay. Female employees, who, like Mr Ali, had been transferred to their current employment under a TUPE transfer, were entitled to 14 weeks’ enhanced maternity pay.

It has been hotly debated as to whether companies with enhanced maternity packages should match those benefits for anyone taking shared parental leave (SPL). There is no statutory requirement to do so. In bringing a direct discrimination claim, many lawyers would argue that the appropriate comparator for a male employee taking SPL is a female employee taking SPL (rather than a woman on maternity leave).

In this case, the Tribunal held that Mr Ali could compare his treatment with a hypothetical comparator, that being a female employee who had a baby at the same time, taking leave to care for her child after the 2 week compulsory maternity leave period.

It was not accepted that after compulsory maternity leave, the additional 12 weeks’ enhanced pay could be exclusive to mothers. The Tribunal agreed that fathers now have an increased role in caring for children and in these circumstances, Mr Ali was in the best position to do so. In denying Mr Ali the enhanced pay usually paid to women on maternity leave, he had been subjected to less favourable treatment due to his sex and his discrimination claim succeeded.

This decision follows an employment tribunal ruling last year involving Network Rail, where the employer conceded that failure to enhance pay during shared parental leave for men as well as women amounted to indirect (though not direct) sex discrimination. However this case was different because neither male nor female employees were entitled to enhanced pay during SPL. In addition, very similar arguments failed in another employment tribunal claim last year, this time involving a police officer in the Leicestershire police force.

This judgment will therefore come as a surprise to many HR professionals, particularly given the Government’s position that no enhancement to statutory shared parental pay needs to be offered. Some commentators believe the decision to be wrong.

It has been reported that the employer will appeal the decision. The Leicestershire police case is also being appealed. Any appeal decisions will be important for employers offering enhanced maternity packages.

Pending the results of these appeals, employers should review their family friendly policies and may wish to consider enhancing shared parental pay if they do not already do so. However they should also be aware that this latest ruling does not bind other employment tribunals and is also inconsistent with earlier decisions at this level.

Lindsey Hooper, Associate

Should the UK introduce a right to disconnect?

1 January 2017 saw the French Government introduce a range of employment law reforms, the most eye-catching being the so called “right to disconnect”.

This requires organisations with more than 50 workers to start negotiations to agree on a worker’s right to not respond to work email or messages during non-working hours. If no agreement is reached, an organisation is required to publish a charter which makes explicit the demands on, and rights of, employees out of hours.

The French labour minister who introduced this measure, Myriam El Khomri, said she was responding to the “always-on” work culture developing from technology rendering staff “permanently connected”. This leap in accessibility has been said to be a cause of increasing workplace stress, burnout and even relationship problems.

It has also been said to have resulted in an increase in unpaid overtime, which may have concerned French trade unions who saw the ability to police the limit on weekly working hours (35 per week) disappear into the cloud (pun intended). A study published by French research group Eleas in October showed that more than a third of French workers used their devices to do work out-of-hours every day.

Whilst noble in aim, the solution imposed in France risks inhibiting one of the real benefits of the development of technology – namely flexibility in how, when and where a worker can work. Ignoring for a moment the concerns about the rights of those working in the gig economy (as I suspect Uber and now City Sprint would like to), this flexibility has helped people balance outside work commitments in ways not previously possible. Reducing flexibility is hardly likely to help the UK government fulfil its commitment to reducing the gender pay gap or improve other barriers to work, or work life balance.

Further, blanket policies of limiting when you can send or receive emails will be impractical for those who do not operate in a 9-5 (or even 8-6) working environment or who work internationally. With Brexit approaching, the UK is perhaps not the right economy to trial a measure which risks inhibiting growth.

Since it is hard to ignore the problems which can arise from excessive working hours and stresses, the key for any organisation is, as always, finding balance and managing expectations. The balance that allows a colleague who is able to leave work to pick up their kids from school and starts work again once the kids are in bed to send out emails late at night, whilst leaving their colleagues free to ignore these if they arrive when they are not working.

Inevitably this will likely mean a range of solutions that work within the demands and culture of a particular workplace. This may be implementing a “mail on holiday” concept like Daimler reportedly did in Germany in 2014 and which lets employees to opt to have their emails deleted whilst on holiday or, as ATOS announced in 2012, banning all internal emails.

For those sceptical about the benefits of disconnecting, its perhaps worth noting that when ATOS said it was banning internal emails, it did so after realising how much time was spent answering and deleting them. Being connected, and being productive, may not be the same things.

Breastfeeding at work: three lessons to draw from the easyJet case

The claim by two easyJet employees who wished to continue breastfeeding on their return to work was about more than discrimination. Their success in showing that their treatment by the airline had amounted to indirect sex discrimination hit the headlines, but they were also able to demonstrate that easyJet had been in breach of health and safety legislation.

Lesson 1: long hours can be a risk factor

While is apparent that working with chemicals and other hazardous substances can create additional risks for breastfeeding women, it may not be as widely appreciated that the length of the working day can be a risk factor in itself. In the easyJet case both women had been advised by their GPs that they should not work longer than 8 hours at a stretch, given that there were no suitable facilities for expressing milk on the aircraft, otherwise they would be at an increased risk of developing mastitis.

Lesson 2: remember health and safety duties apply

Employers are required under health and safety regulations to include the risks to “new mothers” as part of their general risk assessment. If specific risks are identified, then an employer is required to take action to avoid such risks if it would be reasonable to do so, including altering working conditions or hours of work.

If there is no reasonable way to avoid these risks, breastfeeding women have a right to be suspended on full pay unless or until suitable employment can be arranged. So while it is true to say that employers do not have an absolute duty to provide suitable facilities for expressing milk, there can be a financial incentive for them to do so, particularly where their employees are expected to work long or unpredictable hours.

Lesson 3: what not to say

ACAS’ guidance on breastfeeding at work already covers these points, but they are worth noting, as they both arose in the easyJet case :

• Don’t seek to impose a firm time limit when making special arrangements to support women who wish to continue breastfeeding. Experience shows it is very difficult to predict when a baby will be weaned, and mothers should not be put under pressure to try to do so.
• Don’t suggest that women can express milk in the toilets. There is an increased risk of infection to both mother and baby unless the facilities offered are suitably hygienic.