Mills & Reeve: HR Law Live

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.

 

Suspending salary sacrifice scheme during maternity not discriminatory says EAT

The Employment Appeal Tribunal has ruled that the employer Peninsula had not infringed discrimination law when it made it a condition of its childcare voucher salary sacrifice scheme that it would be suspended during maternity leave. However this decision falls short of the definitive guidance on this issue that many employers had hoped for.

Employers providing childcare vouchers via salary sacrifice face a difficult dilemma. Many employees for whom this will be an attractive benefit will be mothers with young children. On the other hand they are also likely to have spells on maternity leave when they are only in receipt of Statutory Maternity Pay, which cannot be sacrificed. The question which is asked (though not completely answered) in this case is whether employers can square the circle by providing that the salary sacrifice arrangement is suspended for periods when the employee is on SMP. Ideally to answer this question we need a judicial body that is expert in both tax law and discrimination law, but unfortunately we do not have one, at least at this level!

The EAT said it was not confident it had been referred to all the relevant tax legislation, so it was expressing its conclusions “somewhat tentatively”. However as it saw things, the vouchers were in effect “diverted” remuneration, and therefore the employer was not required to continue providing the vouchers during maternity leave. That reflects the fact that under the Maternity and Parental Leave Regulations an employer is obliged to continue “non-cash benefits” during statutory maternity leave, but not “remuneration”.

Arguably the Revenue would look at things differently. The whole point of a salary sacrifice is that it involves varying the employee’s contract to provide a reduced salary in return for the provision of other benefits on advantageous tax terms. From this perspective suspending the scheme during maternity leave amounts to a denial of these benefits and hence a breach of the Maternity and Parental Leave Regulations.

There is also another potential problem. By allowing (or requiring) an employee to dip in and out of the scheme the employer could be jeopardising the tax effectiveness of the scheme. Revenue guidance recognises that employees may need to vary a salary sacrifice arrangement because of “life-style events” (an employee’s own pregnancy is not mentioned in this context) but says that “if an employee can swap between cash earnings and a non-cash benefit whenever they like, it’s not a salary sacrifice.”

Employers will welcome this decision as far as it goes, since for now it makes it much harder for workers to challenge similar provisions in other salary sacrifice schemes on the grounds that they are discriminatory. However it cannot be regarded as completely definitive, since it fails to engage fully with the tax-related issues. It may be of some comfort to reflect that this type of salary sacrifice arrangement is likely to be phased out in favour of a new tax-free childcare scheme, which the Government has promised to launch in 2017.

Employment law review of the year 2015/2016

To mark the beginning of another year, we have prepared a briefing looking at the key developments of 2015 which will continue to be significant as we move into 2016.

The introduction of Shared Parental Leave, the launch of the National Living Wage and the publication of the Trade Union Bill were arguably the stand-out developments of last year. But there have also been important developments in other areas including collective redundancies, disability discrimination and unfair dismissal.

Developments to look out for early in 2016 include a decision from the Employment Appeal Tribunal about commission and holiday pay and the Government’s response to consultation about the scope of compulsory gender pay reporting.

Shared parental leave: remembering maternity allowance

It has been widely assumed that fathers (or mothers' partners) will be more likely to take shared parental leave when the mother is the main bread-winner and therefore more likely to return to work early when there is shared leave left. But that is not the only possibility.

Fathers will also be eligible for SPL where the mother has not been working in the run up to the birth, but is eligible for maternity allowance because she has been economically active in the recent past.  In these circumstances some “shared pot” enhanced schemes may entitle a father who is in employment to claim enhanced occupational pay on the same basis as a mother taking ordinary maternity leave. 

This may come as a surprise to some, since in these circumstances the mother is not entitled to maternity leave, or SPL in her own right. In these circumstances the leave is not strictly shared at all, though the father’s eligibility depends on the mother curtailing her maternity allowance (but why would she not if the father will benefit from an enhanced pay scheme?).

It is our experience that most employers have not considered whether it is their policy intention for fathers in such circumstances to get enhanced occupational pay or not. None of the schemes we have seen make reference to it, but employers are already receiving considerable numbers of queries from this group of fathers.

Patrick Gass, Senior Associate

Key employment changes taking effect in April

Here is a reminder of the main changes taking effect next month (all on 6 April unless otherwise stated):

• Employment protection limits: the limit on a week’s pay will rise to £475 and the maximum compensatory award to £78,335. Other limits will also rise.
• Working parents: parents of babies expected from 5 April onwards will be eligible for shared parental leave and pay. Similar rights will apply to adoptive parents, who will also have other rights more closely aligned with birth parents. At the same time the right to take unpaid parental leave will be extended to parents of children between the age of 5 and 18.
• Whistleblowing: protection will be extended to student nurses and student midwives, who currently do not count as workers for these purposes.
• New NMW regulations: the various different regulations on the National Minimum Wage will consolidated into one set of regulations, incorporating minor amendments.

Employment law review of year 2014/2015

To mark the beginning of another year, we have prepared a briefing looking at the key developments of 2014 which are likely to continue to be of interest as we move into 2015.

Litigation about the correct way to calculate holiday pay under the Working Time Regulations continues to dominate the employment news, but there have been many other developments of interest. These include last month’s decision in the European Court of Justice about the extent to which obesity should be treated as a disability and an interesting consultation from the Law Society about the future of employment tribunals.

Developments to look out for early in 2015 include the advocate general’s opinion in the Woolworths collective redundancies legislation and an important judgment from the Court of Appeal on the scope of the Agency Workers Regulations.

Employers still left with thinking to do on shared parental leave

The publication of the final Shared Parental Leave Regulations last week serves as a reminder that the new regime officially comes into effect next Monday, 1 December, although it will apply only where the birth of the child is expected or the adoption placement occurs on or after 5 April 2015.

As well as getting to grips with the considerable complexities of the new law, employers will also need to consider whether to make any adjustments to their occupational maternity and paternity schemes to reflect these new rights. The Deputy Prime Minister Nick Clegg – who is regarded as the driving force behind this change – has already announced that three large employers will be joining the Civil Service in offering enhanced shared parental pay. Even if employers are prepared to make this significant financial commitment, there are many details to address, not least how such new schemes will interact with existing occupational maternity and paternity pay.

Many employers will be reluctant to make any changes until they can assess how shared parental leave will work in practice. Doing nothing is not entirely risk-free, since male employees taking shared parental leave could argue that enhancing statutory maternity pay without doing the same for shared parental pay is indirectly discriminatory against men. However, it is considered that for most employers the risk of such claims succeeding is relatively low.

The introduction of shared parental leave will coincide with a number of other changes to the rights of working parents arriving next April including:

• Extending the existing right to take unpaid parental leave so that parents of all children up to the age of 18 are eligible
• Further aligning the rights of adoptive parents with those of birth parents: among other changes, the right to take adoption leave will no longer be subject to 26 weeks’ service and the primary adopter will have the right to paid leave to attend adoption appointments
• Extending the scope of adoption leave so that local authority foster parents who are prospective adopters can qualify
• Changing the law so that parents of a child born to a surrogate mother can qualify for paternity, adoption and shared parental leave and shared parental pay if they apply for a parental order under the Human Fertilisation and Embryology Act.

Shared parental leave may require changes to pension scheme rules

The new system of shared parental leave will apply in relation to babies expected from 5 April 2015 onwards, and for children placed for adoption from that date.

The system is complex, and whilst employers are getting to grips with how the new rules work in practice, they may have overlooked how they interact with the rules of their occupational pension schemes.

Unless the pension scheme’s rules have been widely drafted, it is unlikely that they can accommodate the new shared parental leave flexibilities.

Therefore, now is a good time to review and update pension scheme rules to make sure they are ready for shared parental leave, at the same time making sure that they are consistent with all of the employer’s policies and procedures in relation to all periods of employee absence.

Clare Grice, Partner

Starting in October: a quick reminder

Here is a summary of the main changes taking effect on 1 October:

• The new right to take unpaid time off to accompany a mother at up to two ante-natal appointments will apply to all employees who have a “qualifying relationship” with the mother. This extends to partners of the mother and fathers of the expected child.
• The National Minimum Wage standard rate rises from £6.31 to £6.50 an hour. Other rates have also been increased, though by more modest amounts.
• Employment Tribunals will have a new power to order an equal pay audit if an employer loses an equal pay claim. This will apply only to proceedings issued from 1 October onwards.

No EU maternity rights for mothers who have children through surrogacy

In two decisions published earlier this week, the European Court of Justice has said that the Pregnant Workers Directive does not confer any EU-wide maternity rights on mothers who become parents following a surrogacy arrangement. These rulings are of interest to employers in Britain because currently such mothers are not entitled to maternity or adoption leave under domestic law, though the position is due to change in April 2015.

The first of these cases was a reference from an employment tribunal in Newcastle. The claimant had become a mother via a surrogacy arrangement and with her partner had obtained a parental order under the Human Fertilisation and Embryology Act 2008. She took charge of the baby within an hour of its birth and was able to breastfeed it for several months. These factors were not enough to persuade the ECJ that should she be treated in the same way as a birth mother.

The second decision involved parents in Ireland. Surrogacy is not regulated there, so they travelled to California to make the necessary arrangements. The mother was fertile, but had a rare medical condition which meant she could not support a pregnancy. She therefore had IVF treatment, and the fertilised egg was implanted in the womb of a surrogate mother. The claimant and her partner were not only the genetic parents of the child, but under the law of California no other parental rights were recognised. Once again, her attempt to persuade the ECJ that the Pregnant Workers Directive could be interpreted to cover her situation was unsuccessful.

For British parents the law will be changing in April 2015. From that point, an employee who has applied for a parental order under the Human Fertilisation and Embryology Act will be eligible for ordinary and additional adoption leave, subject to qualifying criteria which are likely to be analogous to those that currently apply to adoptive parents.