Government Reforms (3):  Guidance on Pregnancy, Breastfeeding and Health & Safety

The TUC and Maternity Action have warned that employers are not doing enough to protect pregnant women at work and have published new guidance for health and safety representatives on “Pregnancy, breastfeeding and health and safety”, available here.

In the new guidance, the TUC and Maternity Action explain that there are clear laws in place to protect new and expectant mothers, but states that many bosses don’t know what they should be doing or are ignoring their legal responsibilities.

The guidance emphasises the need for risk assessments whenever an employer employs women of childbearing age i.e. before a female employee notifies the employer that they are pregnant. This general assessment should then be revisited on notification of pregnancy to review specific risks regularly as the pregnancy progresses.

The guidance urges health & safety representatives to challenge employers who claim that there are risks that cannot be removed once they are told that a woman is pregnant.  The guidance claims that there are very few hazards which cannot be controlled to ensure that all pregnant women are safe, not just those who have notified their employer.

The guidance also suggests ways to keep pregnant staff safe including:

  • making workstations like desks and checkouts more comfortable;
  • changing workload or hours to reduce stress;
  • varying starting and finishing times to make commuting easier; and
  • agreeing an increase in breaks to visit the toilet and drink more fluids.

The guide also sets out what employers need to do when a new mother returns to work, and how managers can support their female staff with breastfeeding and expressing milk.

ACAS Guidance: Neurodiversity in the Workplace

ACAS has published guidance (available here) to help employers learn about neurodiversity and to suggest changes that can be made in the workplace to better support ‘neurodivergent’ staff.

‘Neurodiversity’ refers to the way an individual’s brain works and interprets information.  ‘Neuro-normal’ or ‘neuro-typical’ was originally coined in the autistic spectrum disorder (ASD) community for someone who did not have ASD.  Since then, usage of the neurotypical / neurodiverse distinction has spread to cover comparisons between people with a far wider range of mental and behavioural conditions and those who have none.

Nowadays, a ‘neurotypical’ person is said to be someone whose brain functions in the way society expects, while a ‘neurodivergent’ person is someone whose brain functions, learns and processes information differently. Examples of neurodivergence include ASD, attention deficit disorders and dyslexia.

The new ACAS guidance emphasises that people think differently and that some individuals are naturally better at some tasks and poorer at others. The guidance suggests employers accommodate this difference in practical ways, such as:

  • arranging awareness days, campaigns, training or workshops to draw attention to neurodiversity;
  • creating an inclusive recruitment process by offering alternative application methods, and training interviewers in unconscious bias; and
  • encouraging managers to have discussions with neurodivergent staff to identify appropriate workplace adjustments.

The guidance also emphasises that creating a more inclusive workplace with adjustments for neurodivergent staff will reduce the risk of employees bringing claims of disability discrimination, as well as providing other benefits to the employer, including:

  • providing employers with an opportunity to highlight the organisation’s commitment to diversity and inclusion;
  • empowering staff to feel comfortable enough to disclose a neurodivergence; and
  • improving staff retention and morale.

Case Update (2):  Discrimination – Knowledge of Disability

Summary:  Where an employer is unaware of an employee’s disability at the time of dismissal, but learns about this disability at an appeal hearing, can the dismissal be disability discrimination?

Yes, says the EAT in Baldeh v Churches Housing Association of Dudley and District Ltd, available here.

Background:  Under the Equality Act 2010, a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This is known as discrimination arising from disability. A can only be liable for discrimination arising from disability if A knows or could reasonably be expected to know that B was disabled.

Facts:   The employee, Mrs Baldeh, was employed as a support worker for Churches Housing Association of Dudley and District Ltd, the employer.  Mrs Baldeh was dismissed at the end of her six-month probationary period, following a disciplinary hearing, because of her performance and her rude behaviour towards her colleagues.

In her disciplinary hearing, Mrs Baldeh did not explain that she was disabled, and so her dismissal was made on the basis that she had simply not performed her job to the required standard within her first six months.

However, at her appeal meeting, Mrs Baldeh explained that she suffered from depression, which affected her behaviour and caused short term memory loss. She said that this caused her poor performance and conduct. In particular, she stated that she could respond aggressively to others while suffering from a depressive episode.

However, the employer upheld the decision to dismiss as it still considered that her actions warranted dismissal.

Mrs Baldeh brought a Tribunal claim for “discrimination arising from disability”. She alleged that she had been subjected to unfavourable treatment (her dismissal) because of something arising from a disability (namely her behaviour and poor performance).

The Tribunal held that the employer was not aware of the disability at the time the decision to dismiss was made and so there was no discrimination. Mrs Baldeh’s conduct was considered to be objectively poor and she would have been dismissed on the other grounds in any event.

Mrs Baldeh appealed to the EAT.

The EAT upheld Mrs Baldeh’s appeal.  The EAT explained that as the employer heard evidence from Mrs Baldeh at the appeal hearing that she was disabled, they had actual or at least “constructive” knowledge of her disability at the appeal meeting. They should, therefore, have explored this before upholding the dismissal.

The EAT also highlighted that while there were a number of dismissal grounds that were entirely unrelated to the disability, an employee’s disability did not have to be the “sole” or “principal” reason for the unfavourable treatment (the dismissal). The fact that the conduct arising from the disability had a “material influence” on the decision to dismiss meant that there could be potential discrimination arising from the disability in this case.

Implications:   In light of this case, employers need to be mindful of using an appeal to simply review the previous decision to dismiss. An internal appeal is an integral part of the decision to dismiss. If new facts come out at the appeal meeting then these must be explored to see whether the decision to dismiss would have been the same had the employer been aware of these facts at the time or if it should be overturned.

In particular, managers should be trained to appreciate their role when undertaking an appeal. They must consider fresh evidence produced at the appeal meeting and should not feel afraid to postpone the hearing if they need more time to investigate.

If an employee raises the issue of a disability as a potential reason for their actions, then we recommend the employer obtains a medical report on the employee’s health condition and its potential impact on the employee in the workplace, including recommendations for potential adjustments.

Employees may be too embarrassed to mention a mental health condition with their employer at an earlier stage (before they have been dismissed) due to the negative connotations of suffering from depression that still exist in many workplaces. Employers need to explore whether this fresh information would have affected the decision to dismiss and make adjustments to the procedure if necessary.

Case Update (3): Sex Discrimination and Shared Parental Leave Pay

What do we already know?

In our April 2018 Newsletter Case update (1): Sex discrimination and shared parental leave pay and May 2018 Newsletter Case update (1): Sex discrimination and shared parental leave pay we updated you on the EAT decisions in Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire police.

The EAT in these cases confirmed that it is not direct sex discrimination, but maybe indirect sex discrimination, to pay less than full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay.

What’s new?

The Court of Appeal has decided that it is definitely not direct or indirect discrimination to pay less than full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay.

This is in keeping with the Government’s view that there is no legal requirement for employers who offer enhanced maternity leave pay to offer corresponding enhancements to Shared Parental Leave pay. Employers are free to offer more generous enhanced arrangements if they wish, but are not obliged to do so (see the Employer’s Technical Guide to Shared Parental Leave and Pay (September 2014) available here). This is the Government’s view but is not binding on Employment Tribunals.

For further details of the Court of Appeal’s decision see below:

Summary: Is it discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave?

No, says the Court of Appeal in the combined cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall available here.

Facts:  Mr Ali is employed by Capita as a business customer adviser and Mr Hextall is a serving police constable. Both decided to take Shared Parental Leave (ShPL) upon becoming new fathers. Both Capita and Leicestershire Police offer enhanced maternity pay to women taking maternity leave – 14 weeks’ full pay followed by statutory maternity pay (SMP) in the case of Capita, and 18 weeks’ full pay followed by SMP in the case of Leicestershire Police. However, both only offer the statutory rate of ShPL pay.

Mr Ali and Mr Hextall separately brought Tribunal claims, arguing that the failure to pay them the equivalent of enhanced maternity pay amounted to direct discrimination contrary to the Equality Act 2010 (EA). Mr Hextall also claimed indirect discrimination contrary to the EA.

The Tribunal upheld Mr Ali’s direct discrimination claim.  However, in Mr Hextall’s case, the Tribunal dismissed his direct and indirect discrimination claims.

The employer appealed against the decision to uphold Mr Ali’s claim and Mr Hextall appealed against the dismissal of his indirect discrimination claim.

At the EAT, Mr Ali lost his claim for direct discrimination. The EAT considered that Mr Ali’s circumstances were not comparable to a woman who had recently given birth. The correct comparator was instead a woman on ShPL, who like Mr Ali, would only receive statutory ShPL pay under the employer’s policy.

In Mr Hextall’s case, the EAT held that the Tribunal had not properly considered the test for indirect discrimination.   The EAT accepted Mr Hextall’s case that the relevant provision, criterion or practice (PCP) was paying only the statutory rate of pay for those taking shared parental leave and that the Tribunal had incorrectly approached this question and that of comparators.  The EAT remitted Mr Hextall’s claim to a differently constituted Tribunal.

Mr Hextall’s employer and Mr Ali both appealed.

The Court of Appeal’s decision was resounding – paying men on ShPL less than women on maternity leave is not direct sex discrimination, indirect sex discrimination or a breach of equal pay rights.

The Court of Appeal considered that there was no direct discrimination because the circumstances of a man on ShPL could not be compared to the circumstances of a birth mother on maternity leave. ShPL was for childcare purposes whereas a birth mother is afforded special treatment for health and safety purposes (and this special treatment can continue beyond the two-week compulsory maternity leave period). The correct comparator for a man on ShPL was a woman on ShPL, both of whom would receive the same pay. As such, there was no direct discrimination.

Whilst the indirect discrimination claim could be properly characterised as an equal pay claim, the Court of Appeal nevertheless considered that a policy of paying men on ShPL statutory pay only could not be indirect discrimination. It noted that women on maternity leave are materially different from men or women taking ShPL, and should, therefore, be excluded from the relevant comparison pool. As such, the policy of paying statutory pay only for ShPL did not place a male employee at a particular disadvantage.

Regarding an equal pay claim in respect of contractual ShPL pay being less than contractual maternity pay (what was really being claimed, rather than indirect discrimination); the Court of Appeal determined that any such claim would fail. This was because the sex equality clause (which is implied into contracts of employment) does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth. This provision was broad enough to cover enhanced maternity pay.

Implications: The Court of Appeal’s decision is good news for employers, as it gives a very clear message that it is lawful to enhance maternity pay but provide statutory pay only for Shared Parental Leave.

The Court of Appeal has taken the position that the whole period of maternity leave provides special protection for mothers after giving birth, meaning it is always permissible for employers to treat this differently from Shared Parental Leave.

We wait to hear if permission to appeal will be sought from the Supreme Court. Given the importance of the issues raised and the wide range of different conclusions reached by the Tribunals, EAT and now the Court of Appeal, a further appeal seems highly likely, particularly on the equal terms claim or indirect discrimination claim debate. We’ll be sure to update you, so watch this space…

Government Reforms (2):  Gender Pay Gap & Promoting Female Talent

The Government Equalities Office has published guidance (available here) for employers on actions they can take to promote women’s progression in the workplace and close the gender pay gap.

The guidance focuses on:

  • creating an inclusive culture;
  • supporting women’s career development;
  • progression for part-time workers;
  • improving recruitment and promotion processes; and
  • measuring and evaluating policies to support diversity and inclusion.

The guidance reminds employers of the value of closing the gender pay gap, making the best use of skills and experience, attracting and retaining talent and improving productivity and performance.

The guidance is in line with the Government’s continuing commitment to encouraging employers to not only report on their gender pay gap, but also to take action to close the gap identified.

 

Government Reforms (1):  BREXIT – EU Settlement Scheme

What do we already know?

When the UK leaves the EU, with or without a deal, free movement of people will be allowed to continue for a transitional period from the exit date for approximately two years.

EU citizens and family members who want to continue to live and work in the UK beyond 30 June 2021 (or 31 December 2020 if there is a no-deal Brexit), will need to apply to the EU Settlement Scheme, which can be accessed primarily online here. See the Government’s guidance here.  (Those who have indefinite leave to enter or remain, or who have citizenship, do not need to apply to the scheme).

The EU Settlement Scheme allows those EU citizens residing in the UK to continue to live, work and study here. It also means they continue to be eligible for:

  • Public services, such as healthcare and schools;
  • Public funds and pensions; and
  • British citizenship, if they want to apply and meet the requirements.

To be eligible, an individual:

  • Must be an EU citizen or a non-EU family member of an EU citizen, this includes those with a UK permanent residence document. You do not need to apply if you have indefinite leave to remain or enter, or you are an Irish citizen, but you can if you want to.
  • Must be resident in the UK by 31 December 2020 (if a deal is agreed with the EU). Those who have been resident for five continuous years will be eligible for ‘settled’ status. Those who have been a resident for fewer than five continuous years will be eligible for ‘pre-settled’ status.
  • Must not be a serious or persistent criminal, a threat to national security, or have a deportation order, exclusion order, exclusion decision or removal decision against them.

The EU Settlement Scheme was due to be subject to fees.  However, on 21 January 2019 the Government announced that this would no longer be the case. Those who have already paid a fee (as part of the phased roll out) may have their fees reimbursed to them.

The online application process for the EU Settlement Scheme was opened on 30 March 2019 and applications must be made by 30 June 2021 (or 31 December 2020 if there is no deal).

What’s new?

The Government has confirmed that in the event of a no-deal Brexit, applicants to the Settlement Scheme must have been living in the UK since before exit day (currently 31 October 2019).

 

Case Update (1): Holiday Pay and Voluntary Overtime

What do we already know?

We updated you in our July 2018 Newsletter Case update (1): Holiday pay and voluntary overtime on the EAT’s decision in Flowers v East of England Ambulance Trust that non-guaranteed and voluntary overtime pay, paid over a sufficient period of time, should be included in calculating holiday pay under contractual terms and/or the Working Time Directive (WTD).

The employer appealed to the Court of Appeal.

What’s new?

The Court of Appeal upheld the EAT’s decision that voluntary overtime pay which is regular and settled should be taken into account when calculating holiday pay.  This is the case both under the employer’s contractual terms in this case and under the Working Time Directive.

Summary:  Should voluntary overtime, which is sufficiently regular and settled, be taken into account when calculating holiday pay?

Yes, says the Court of Appeal in Flowers v East of England Ambulance Trust available here.

Facts:  The employees were all employed by the East of England Ambulance Trust (‘the Trust’) in a range of roles concerned with the provision of ambulance services. The issue was whether their holiday pay should take account of overtime falling within two categories: ‘non-guaranteed overtime’ and ‘wholly voluntary overtime’. Although mandatory, ‘non-guaranteed overtime’ was irregular. Voluntary overtime was genuinely voluntary (i.e. the ambulance crew were free to choose whether or not to do it).

The employees brought claims in the Tribunal for unlawful deductions for wages, alleging that they had been underpaid holiday pay. They argued: (1) a right under the EU’s Working Time Directive (WTD) to be paid “normal remuneration” (as a public body the Trust could rely on the WTD rather than the UK’s Working Time Regulations) and (2) a contractual entitlement under their terms and conditions.

Tribunal decision

The Tribunal held that the employees’ contracts and the WTD entitled the employees to have their non-guaranteed overtime taken into account when calculating holiday pay, but not their voluntary overtime.  The employees appealed the decision.

EAT decision

In respect of point (1) – the WTD – the EAT referred to its decision in Dudley Metropolitan Borough Council v Willetts. The EAT had decided in this case that payments for voluntary overtime fell within the concept of “normal remuneration” where such overtime was carried out over a sufficient period of time on a regular and/or recurring basis to justify the description “normal”.

The EAT held that the correct interpretation of CJEU case law had been set out in the Dudley decision and referred the claims back to the Tribunal for an assessment of whether the wholly voluntary overtime of each of the employees had a pattern that was “sufficiently regular and settled” to be taken into account in the calculation of “normal remuneration”.

In respect of point (2), the contractual claim, the EAT found that the employees’ contracts did include the right to holiday pay which took into account both types of overtime.

The Trust appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal upheld the employees’ contractual claims (point (2)) succeeded and found that they did have an entitlement under their terms and conditions to have voluntary overtime taken into account for the purposes of calculating holiday pay.

Nevertheless, the Court of Appeal went on to consider the WTD claim (point (1))  because “Employers need to know whether the decision in Dudley Metropolitan Borough Council v Willetts was correct.”

The Court of Appeal found that the decision in Dudley was correct and:

  • confirmed that voluntary overtime should be included in holiday pay if the pattern of work is ‘sufficiently regular and settled’ for payments made in respect of it to amount to ‘normal remuneration’.
  • rejected the argument (made following comments in a 2018 CJEU case called Hein v Albert Holzkamm GmbH) that for overtime pay to be included in the calculation of holiday pay the worker had to be required by their contract to work it (thereby excluding voluntary overtime).
  • noted that the exclusion of voluntary overtime from the calculation of holiday pay would carry the risk of encouraging employers to set artificially low levels of basic contractual hours and to categorise the remaining working time as overtime (referring to zero hours contracts).
  • noted that excluding regular voluntary overtime could create a financial disincentive to taking annual leave, contrary to the purpose of the WTD.

Implications:  The Court of Appeal has confirmed that voluntary overtime should be included in holiday pay calculations where it is sufficiently ‘regular and settled’ for payments made in respect of it to amount to ‘normal remuneration’. What this means in practice will be for Tribunals to decide on a case-by-case basis, based on the individual facts.

Drawing the line between regular and irregular overtime will not always be straightforward. Arrangements may not fall neatly into one category or the other, and may not be consistent throughout the year, or between different teams or individuals within the same team.

 

 

June 2019 Newsletter

It’s June, supposedly the first month of summer and warm, long, sunny days.  However, if like us you don’t remember any of these lately, then keep in mind that June is National Smile Month and cheer yourselves up by reading our latest update on HR/Employment law news!  Although smiles may fade when we mention Brexit, at least we can update you on dates and timescales for the EU Settlement Scheme.  We also have useful guidance from the Government on the gender pay gap and promoting female talent; from the TUC on pregnancy, breastfeeding & health & safety; and from ACAS on neurodiversity in the workplace.

In our case update we bring news on holiday pay and voluntary overtime, knowledge of disability at appeal and discriminatory dismissal, and that paying statutory shared parental leave pay is not discriminatory to men.

 

What Anne-Marie has been doing recently…

Apart from some yoga and topping up my fake tan,  I have been advising on several cases involving allegations of pregnancy and maternity discrimination.  Fortunately, I was able to advise the various employers seeking advice that they had done nothing wrong. Unfortunately, many employers are not so conscientious.

Quite rightly, a light has been shone into this area by both Government (looking at improving protections as work for pregnant women and new parents) and various charities and support groups like the Maternity Alliance and Pregnant then Screwed.

As a working mum myself it is an area that I have always had an interest in.  When I was a new trainee solicitor many years ago I was tasked with giving a talk to staff at the law firm I worked at on maternity rights. I thought  a few employment lawyers would turn up if that. I was staggered when pretty much every female member of staff attended to hear my slightly trembling words. This was over 25 years ago and there wasn’t that much information around. Thankfully there is now.

In discussing this with my colleague Tamsin, we both agreed that we have lots to share – both to employers and employees – on this topic. So – watch out for a new series of blogs that will be hitting your screens from next month. In the first one, Tamsin is going to be focussing specifically on pregnancy discrimination.

Anne-Marie Boyle
Partner
 or call 0117 325 0924

 

A roundup of this month’s news: 

Case update (1): Disciplinaries – What if there is a Police Investigation?

Summary:  Does an employer breach the implied duty of trust and confidence by proceeding with a disciplinary investigation whilst there is an ongoing police investigation?

No, says the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg available here.  Only in very limited circumstances is there any requirement on an employer to delay pending the outcome of a police investigation.

Facts:   The employee, Dr Gregg, was a Consultant Anaesthetist employed by North West Anglia NHS Foundation Trust (the Trust). Following the death of two patients under Dr Gregg’s care, the Trust notified the police and commenced disciplinary proceedings pursuant to Maintaining High Professional Standards (MHPS).  Dr Gregg’s registration was suspended and his licence withdrawn.

Whilst the police investigation was ongoing the Trust decided to proceed with the disciplinary hearing. Dr Gregg objected to attending internal disciplinary interviews whilst the police investigation was ongoing and did not participate in the disciplinary proceedings.  He said that he was concerned that he would be prejudicing himself in the police investigation. The Trust nevertheless decided to proceed with the disciplinary allegations and tried to stop Dr Gregg’s pay on the basis that Dr Gregg could not fulfil his contractual duty to be ready, willing and able to perform the work he was employed to do. The Trust also relied on MHPS which provides discretion to suspend a doctor’s salary when s/he is unavailable for work.

Dr Gregg brought proceedings in the High Court. The High Court granted an injunction preventing the Trust from continuing its internal investigation into the patient’s death whilst the police investigation was ongoing. The Court stated that the Trust’s refusal to adjourn the disciplinary process was a breach of the implied term to maintain trust and confidence within Dr Gregg’s employment contract. The High Court also found that the Trust was in breach of contract for not paying Dr Gregg’s salary during the interim suspension period

The Trust appealed to the Court of Appeal which disagreed with the High Court. The Court of Appeal emphasised that an implied term of trust and confidence is not an implied term to act fairly. The Court of Appeal acknowledged that it is often impractical to wait until a criminal trial takes place before making a decision on the employee’s future employment and confirmed that there is no absolute rule stating that an employee cannot be dismissed before their criminal trial.

However, the Court of Appeal upheld the High Court’s findings that Dr Gregg should have been paid full pay during his suspension. Importantly, the Court of Appeal warned that employers should exercise caution before concluding that an employee could be characterised as avoidably or voluntarily unable to work in such circumstances because to do so would stray uncomfortably close to an assumption of guilt.

Implications:  This is helpful guidance for employers when faced with dealing with misconduct allegations and police investigations. Employers are not required to wait for the conclusion of the police investigation, unless such course of action would give rise to a real danger of a miscarriage of justice.

However, this decision does confirm that employees must receive full pay during any period of suspension unless there is an express contractual right to withhold it or exceptional circumstances (such as a complete or part admission of guilt). This remains the case even where a relevant licence has been temporarily suspended by an external body, resulting in the employee being unable to practice until their licence is reinstated.

Government Reforms (1): Public Sector Exit Payments – CAPS LOCK ON…

What do we already know?

We updated you in our October 2015 Newsletter Government reforms (1): Cap on exit payments that the Government proposed that exit payments to public sector workers should be capped at £95,000 (which include pay in lieu or notice, redundancy and ex gratia payments).

There was also a consultation at this time and the Government confirmed in its Response that it intended to proceed with the cap.  The expectation was that the cap would likely become law in early 2017.  However, the law never materialised and it appeared plans may have been shelved.

What’s new?

The Government has resurrected its plans and begun a further consultation (available here) on capping public sector exit payments.  The consultation will be open until 3 July 2019 and invites comments on the draft regulations which set out the proposed cap and on the accompanying guidance to implement its plan.

The draft regulations propose that the following payments will be subject to the cap:

  • any payment for dismissal (this includes redundancy; statutory redundancy must be paid, but there will be a cap on any additional payments that go over the £95,000);
  • any extra payments made to an employee’s pension – it is important to note here that any payments flowing from an employee’s right to a pension, including an accrued entitlement to a lump sum, are not exit payments and will, therefore, not be restricted by the cap. However, a top-up payment by the employer, resulting in the employee receiving a greater pension than they would be entitled to, would be restricted by the cap;
  • compensation payments (not including those related to TUPE or whistleblowing);
  • severance or ex gratia payments, and any payment on a voluntary exit;
  • pay in lieu of notice payments (only where this exceeds a quarter of the employee’s salary); and
  • payment in the form of shares or options, or payment to distinguish any liability under a fixed-term contract or any other payment, contractual or otherwise, following termination of employment or loss of office.

The Treasury has suggested the first round of implementation will cover most public sector employers, including the civil service, local authorities, and schools. It could later be extended to cover organisations such as the BBC, the Financial Conduct Authority and the Bank of England.