THE CURRENT LAW
The law as it currently stands provides that a woman is entitled to take up to 52 weeks Maternity Leave and to receive up to 39 weeks Maternity Pay, set at a minimum level by the Government each year. Some employers choose to enhance this pay in accordance with internal policies.
Since 2015, fathers are only entitled to 2 weeks Paternity Leave, but can opt to share the Maternity Leave and Maternity Pay with a child’s mother under the Shared Parental Leave (“ShPL”) Scheme.
The question for employers, and specifically that raised by Mr. Ali in this case is this…should an employer who has an internal policy of paying enhanced Maternity Pay to female employees, pay this enhanced rate of pay to a father who takes ShPL, or should the father simply be paid the statutory minimum level of pay under the Shared Parental Pay (“ShPP”) scheme?
In this specific case, female employees employed by Capita Customer Management (“Capita”) who had transferred into the business via TUPE, were entitled to Maternity Pay comprising 14 weeks’ pay at the level of their basic salary, before moving to 25 weeks’ pay at the statutory minimum level (currently £140.98 per week). Transferring male employees were entitled to 2 weeks paid Paternity Leave.
Mr Ali, took 2 weeks’ Paternity Leave immediately following the birth of his daughter, but then took the decision to request further time off work to care for his daughter. Capita advised that he was entitled to take a period of ShPL, but informed him that he would be paid ShPP only – he would not be entitled to the 14 weeks’ pay at the level of his basic salary as his partner would have been if she had decided to continue Maternity Leave.
Mr. Ali objected to this, alleging that it was open to parents to choose which one of them should be the primary caregiver, and for an employer to elect to pay a mother more than a father in respect of the necessary leave taken for this purpose was direct sex discrimination.
The Tribunal upheld Mr. Ali’s argument. It confirmed that he could compare himself to how a hypothetical female colleague who had taken Maternity Leave would have been treated, and the denial of full pay to Mr. Ali was unfavourable treatment due to his sex.
However, employers should be aware that this is only a first instance Tribunal decision and is currently being appealed.
In another recent case based on similar circumstances, the Tribunal reached a different decision (Hextall v Chief Constable of Leicestershire Police), where it was held that Maternity Leave and Maternity Pay are “special treatment” afforded to women in connection with pregnancy and childbirth, which did not go any further than “reasonably necessary” on the basis that women suffer disadvantages in work due to pregnancy and maternity, which typically detrimentally affects a mother’s finances more than a fathers.
Capita and Hextall also conflict on whether a valid comparison can be made between a mother taking Maternity Leave and parents taking ShPL. Both men and women can take ShPL, whereas only a female can take Maternity Leave. Maternity leave is also different in that women can choose to start this before their child’s birth, whereas ShPL cannot start until 2 weeks’ after birth, and it is impossible to take ShPL without both parents agreeing to this, whereas Maternity Leave can be taken as of right.
The Hextall Tribunal concluded that the correct comparator for the father in question was a woman taking ShPL, and as the woman would receive ShPP on the same terms as the man, there was no less favourable treatment and accordingly no discrimination.
The question as to which case is the correct interpretation of the law will now be left to the Appeal Tribunals. Therefore, before employers rush to change their policies, they may wish to review the business reasons behind their current family policies, whilst keeping abreast of the final decisions in these cases.
If you would like more advice about any of the issues raised in this article, please contact a member of our team on 01604 871143.
All three major political parties have now published their manifestos ahead of the snap General Election to be held on Thursday, 8 June 2017, but what do the parties have in store for employment law?
The Labour Party was the first to divulge its plans in the document “For the Many, Not the Few,” which contains numerous pledges in relation to employment rights.
The Liberal Democrats followed closely with the release of its manifesto “Change Britain’s Future,” which includes an acknowledgement that they believe the Conservative Party will win the general election, but that the Liberal Democrats are the only effective opposition, particularly on issues such as Brexit.
Finally, the Conservative Party released “Forward Together,” which Theresa May claims “contains the “greatest expansion in workers’ rights by any Conservative Government in history.”
We have covered some of the key points from each manifesto in relation to employment law below, but this is not a substitute for reading each manifesto in full, we also provide this update for information only and not with the aim of supporting any particular political party.
|The Conservatives pledge to maintain all rights given to workers by European Legislation post Brexit, for example working time, annual leave, TUPE legislation and anti-discrimination legislation to name a few.
||Labour has also included a statement that it will ensure that all rights given to workers by European Legislation post Brexit will be protected.
||Similarly, the Lib Dems have made a pledge to unilaterally guarantee the rights of existing EU nationals in the UK. They have also stated an intention to remain part of the single market and to retain the right to freedom of movement as far as possible due to the vital role that EU workers have to play in the UK economy.
|The Conservatives have vowed to retain the Human Rights Act during the Brexit process, but would consider amendments to this in due course.
||Labour intends to preserve the Human Rights Act.
||The Lib Dems will oppose any attempt to withdraw from the Human Rights Act.
Workers’ Pay & Executive Pay Packages
|The Conservatives aim to increase the National Living Wage (which applies to workers aged 25 and over and is currently set at £7.50 per hour), in line with the current target for this rate to reach 60% of the median earnings by 2020.They have also pledged to curb executive pay by making executive packages subject to annual votes by shareholders and to commission an investigation into share buyback to ensure that this is not being used to artificially hit companies’ performance targets with the aim of inflating executive pay.
||Labour pledges to increase the National Minimum Wage for all workers over the age of 18 to the same level as the National Living Wage (currently £7.50 per hour). The National Minimum Wage is expected to be £10 by 2020 for all workers over 18. Labour also proposes to increase prosecutions against employers who fail to pay the minimum wage, and to reinstate the Agricultural Wages Board to monitor wages (and employment standards) in the food manufacturing, farming and fishing industries. Labour intends to reform the pay ratios for public sector employers, and those that bid for public sector contracts, to ensure that the maximum ratio between the highest paid and lowest paid would be 20:1. Labour pledges to abolish the 1% public sector cap on pay increases. Finally, Labour intends to work to close the ethnicity pay gap by introducing equal pay audits requirements on larger employers.
||The Lib Dems intend to establish an independent review of how to set up a genuine living wage and roll this out across central Government and where possible, across other public sector bodies. They would also call for larger employers to publish data on the number of workers earning less than the living wage and the ratio between top and median pay. They intend to end the pay freeze in the NHS and the 1% pay cap on other areas of public sector pay and to update wages in line with inflation. Finally, the Lib Dems would require binding public votes by Board members on executive pay polices.
|The Conservatives pledge to continue the current review of employment status and the “gig economy” with the aim to ultimately ensure that the interests of employees working in the traditional master/servant employment relationship are properly protected. Details on how this will be achieved have not been specifically defined.
||Labour vows to widen employment protection to provide workers with the same protection currently given to employees. In addition, Labour intends to modernise the law on employment status to include creating a statutory definition for “self-employed,” “worker” and “employee” and to crack down on the potential misuse of the self-employed status. Labour intends to ban the use of Zero Hours Contracts so that every worker will receive a minimum number of guaranteed working hours. Finally, Labour intends to support young people at work by creating a target that will see the number of completed NVQ Level 3 apprenticeships double by 2022. It intends to make apprenticeships more accessible to all, and would require the provision of annual reports on completed apprenticeships to monitor access into the workforce. Labour has pledged to maintain the current apprenticeship levy, but will aim to make this more flexible.
||The Lib Dems pledge to modernise employment rights to make them “fit for the age of the gig economy.” In addition they intend to stamp out the abuse of Zero Hours Contracts and create a right for workers to request a fixed-term contract. The Lib Dems intend to consult on introducing a right to make regular hours of work contractual after a period of time.
Family Friendly Rights
|The Conservatives have suggested they would introduce a new right for workers to take between 13 and 52 weeks off work to care for a family member who requires full-time care, and to return to the same job afterwards. This is an extension of the current right to take Dependant Leave, which only allows employees to take very brief unpaid periods off from work to deal with unexpected incidents or emergencies. There is also an indication that the Party will introduce a new right to Child Bereavement Leave. No details have been provided about the length of this leave and whether it will be paid or unpaid.
||Labour intends to increase the scope of the current 30 hours of free child care to cover all 2 year olds and will consult on the possibility of extending this to 1 year olds. Labour also intends to increase the Statutory Paternity Leave period from a maximum of 2 weeks to 4 weeks, and to increase the rate of Statutory Paternity Pay (which is currently set at £140.98 per week). Labour also intends to extend the period of Statutory Maternity Pay to 12 months from the current 39 weeks. Finally, Labour intends to consult on introducing legislation on Statutory Bereavement, however the full details of the scope of this have not yet been disclosed.
||The Lib Dems intend to provide 15 hours a week of free childcare to all 2 year olds and to children of all working families from the end of paid Statutory Maternity/Paternity Leave or Shared Parental Leave, with an ultimate aim to increase this to 30 hours. They intend to make the right to make a flexible working request and to take Statutory Paternity Leave a “day one” right as opposed to the current legislation that requires an employee to have 26 weeks’ continuous employment with an employer before gaining these rights. In addition, the Lib Dems intend to make the right to take Statutory Shared Parental Leave a “day one” right and also introduce a one month “use it or lose it” period for fathers to encourage them to take this type of leave.
Worker Representation & Trade Unions
|The Conservatives aim to improve worker representation at Board level for listed Companies by either nominating a Board Director from the workforce, creating a formal Employee Advisory Council to the Board or assigning specific responsibility for employee representation to a designated Non-Executive Director.
||Labour intends to repeal the Trade Union Act 2016, which covers specified turnout requirements and balloting requirements before industrial action and to replace this with a “sectoral collective bargaining regime.” Labour will also give all employees the right to receive union representation, guarantee all unions’ access to the workplace, only award public contracts to employers that recognise a union and look at introducing electronic balloting. Finally, Labour intends to launch a public enquiry on Trade Union blacklisting.
||The Lib Dems aim to encourage employee ownership by giving staff in listed companies with more than 250 employees the right to request shares to be held in trust for the benefit of the workforce. They would also continue the drive for Boardroom diversity by pushing for at least 40% of female boards in FTSE 350 companies and improving ethnic minority Boardroom representation.
Discrimination & Diversity
|The Conservatives intend to extend the scope of the Equality Act 2010 to cover discrimination against those suffering from mental health conditions that are “episodic and fluctuating” to cover people suffering from depression, anxiety and bi-polar disorder. Currently, the legislation provides that certain conditions are “deemed disabilities” such as blindness and cancer and protection is automatically granted. In other cases, an individual would have to demonstrate that they have a physical or mental impairment that has an adverse effect on their ability to carry out day-to-day tasks and that effect is long term. The suggestion is that a Conservative Government would potentially classify depression, anxiety and bi-polar disorder as “deemed disabilities” so that people suffering from these conditions are automatically protected under the Equality Act 2010.There is also a reference to incentives being offered to employers to employ vulnerable workers such as 1 year’s relief from Employers National Insurance Contributions. Finally, the Conservatives propose an extension to the current gender pay gap reporting regime, which came into force on 6 April 2017, by requiring employers to publish more data than is currently required. This scope of this has not been clarified. There is also a suggestion that race gap reporting could be adopted.
||Labour intends to enhance the Equality Act 2010 to make it easier to challenge disability discrimination at work. It would also consult on reform to the Gender Recognition Act and the Equality Act 2010 to better protect transgender people by changing the protected characteristic of “gender assignment” to “gender identity.” Labour intends to increase pay equality by introducing an independent body to ensure that the gender pay gap reporting obligations are complied with. The manifesto also provides a proposal to audit all proposed legislation to assess its potential impact on women before it is introduced and to strengthen protection for women against unfair redundancy.
||The Lib Dems aim to extend the current protection against discrimination to cover gender identity and expression and not just gender reassignment. They would also outlaw caste discrimination. The Lib Dems intend to extend the gender pay gap reporting scheme in the private sector to include a requirement to publish information on gender, ethnicity, and LGBT statistics. They would also require name blind recruitment in the public sector and encourage this in the private sector, and will aim to improve diversity in public appointments by including a presumption that every shortlist should include at least one black/ethnic minority candidate. Finally, the Lib Dems would guarantee the freedom to wear religious or cultural dress in the workplace.
Immigration & Modern Slavery
|The Conservatives aim to increase the Immigration Skills Charge from £1,000 per annum to £2000 per annum, which is levied on employers employing migrant workers. They will also review the application of the Modern Slavery Act to strengthen measures against exploitation of vulnerable workers.
||The Labour manifesto includes a statement that Labour is committed to working with Trade Unions to ensure there are fair rules to prevent exploitation of migrant workers.
||The Lib Dems aim to strengthen companies’ responsibility for supply chains to assist in tackling modern slavery.
|The Conservative manifesto makes no reference to Employment Tribunal fees.
||Labour aims to abolish Employment Tribunal Fees (which were introduced in the summer of 2013) and extend the time period for bringing a maternity related claim from 3 months to 6 months.
||The Lib Dems also aim to abolish Employment Tribunal Fees (which were introduced in the summer of 2013).
|The Conservative manifesto contains a suggestion that a Conservative Government will introduce a right to request unpaid time off work for training. It also covers protection for Occupational Pension Schemes whereby the Pensions Regulator will be given greater power to review acquisitions that could potentially have an impact on an existing Occupational Pension Scheme, and to issue fines and Director disqualifications to those wilfully leaving a pension scheme under resourced. Criminal sanctions are also being considered.
||Labour intends to introduce 4 new Bank Holidays to increase a worker’s statutory minimum holiday entitlement to 32 days per annum.
||The Lib Dems aim to provide more protection to NHS whistleblowers – specific details are lacking.
The dust now appears to have settled on the bitter legal battle between ex-Chelsea first team Doctor, Eva Carneiro, Jose Mourinho the ex-Chelsea Manager and Chelsea Football Club. It is reported that Ms Carneiro rejected an offer of £1.2 million to settle her claim out of court.
The final sum accepted as part of the out of court settlement reached yesterday may continue to be the subject of speculation for some time to come, but the cloak of confidentiality around the terms of the agreement may mean that we never actually know the figure.
If we were gamblers it is probably a fair bet that it was not less than £1.2 million!
Doctor Carneiro brought two employment related claims, firstly a claim of constructive unfair dismissal and secondly a claim of sex discrimination.
She claimed that during her employment, treatment such as lack of action over sexually explicit comments made at away games, lack of changing facilities and the clubs failure to provide her with an official suit eroded the employment relationship to such an extent that she was forced to resign (“constructive dismissal”).
In addition, she is claiming that this treatment, coupled with the comments of Jose Mourinho on 8 August last year, when he is alleged to have said “filha da puta” (which roughly translates to “daughter of a whore”) in response to her running onto the pitch to help an injured player, amounts to sex discrimination.
If the case went to full hearing in the Employment Tribunal, the court’s decision in the discrimination claim may have turned on whether it accepted the Chelsea camp’s defence to the claims, namely that Doctor Carneiro’s discrimination claim was nothing but a tactical move. The club claimed that Jose Mourinho did not use the words alleged, which have a discriminatory connotation, but instead actually merely exclaimed “filho da puta” (which roughly translates to “son of a b***h).
It is hard to see how this makes any difference from a moral point of view if indeed the comment was directed at Doctor Carneiro, but legally this would be a key factor as to whether the discrimination claim would have succeeded. A good old fashioned profanity in the eyes of the law is different to one found to be discriminatory in terms of the level of compensation that may be awarded.
If the case went to full hearing in the Employment Tribunal and Ms Carneiro was successful in her claim of constructive dismissal, the maximum compensatory award is £78,962. On the other hand, if an Employment Tribunal found sexual discrimination occurred, there is no limit on the amount of compensation that may be awarded, although there are accepted guidelines. In theory the value of Doctor Carneiro’s claim could have exceeded the £1.2 million settlement sum that was rejected by her earlier this week.
The level of compensation will take into account financial loss such as loss of earnings/future earnings, loss of pension and loss of benefits in kind, and is likely to include a sum for “injury to feelings” resulting from her treatment. In addition, it may cover a sum to compensate her for psychiatric injury.
Although this is a high profile case because of public interest in the personalities involved, there are lessons to be learned for all employers. Employers will no doubt question why, if the discriminatory act was alleged to have been committed by Jose Mourinho, the Chelsea Football club found itself as a defendant to the claim? For the purposes of discrimination legislation, an employer can be found responsible for anything done by an employee in the normal course of employment, unless it took reasonable steps to prevent it.
Employers should ensure that:
- There are effective diversity policies in place that are well known to employees, regularly monitored and followed when an allegation is made;
- There is an effective grievance policy in place;
- Diversity awareness training is given to all employees irrespective of rank and visibly supported by the Executive leadership of the business;
- There are effective contracts of employment in place with effective confidentiality obligations;
In the event that out of court settlements are achieved, ensure that the confidentiality obligations are water tight. Only time will tell if Chelsea Football Club and Jose Mourinho have achieved this!
For more information and guidance on an effective diversity framework for your business or any other employment law related matters contact us.
SUMMARY: When two protected characteristics clash, an employer must tread carefully. The recent case of Mbuyi v Newpark Childcare demonstrates some of the hurdles an employer must overcome before dismissing where the protected characteristics of religious belief and sexual orientation conflict.
Under the Equality Act 2010, individuals are protected from detrimental treatment because of their religious belief or sexual orientation (amongst other characteristics).
Religious belief and sexual orientation are two characteristics which have the potential to conflict, as some religious groups have strong beliefs on homosexuality. An employer has the unenviable task of balancing these competing rights.
The Tribunal Decision
The tribunal held in the case of Mbuyi v Newpark Childcare that Miss Mbuyi had been discriminated against because of her religious belief.
Miss Mbuyi was dismissed for gross misconduct, being her harassment of another employee (“LP”). The dismissal letter referred to her entering into a conversation in the workplace with LP and the topic moved on to the issue of homosexuality… during that conversation Miss Mbuyi stated that homosexuality was a sin. The dismissal letter also upheld an allegation that Ms Mbuyi had, 4 months previously, made “inappropriate comments” to LP concerning her being a lesbian.
Miss Mbuyi did not have the required 2 years’ service to bring an unfair dismissal claim.
Where did the employer go wrong?
The tribunal identified a number of ways in which the employer acted, which lead to its conclusion that the employer discriminated against Miss Mbuyi. The following are key for employers to note:
- The employer did not conduct an investigation.
The employer invited Miss Mbuyi straight to a disciplinary hearing without having conducted an investigation. If the employer had conducted an investigation it might, for example, have seen an email from an employee which put forward a version of events of a conversation about religion and sexual orientation. The tribunal commented that this email had not, however, found its way to a director at the disciplinary hearing by the time of the disciplinary hearing or the time of the dismissal.
The employer could also (amongst other matters) have investigated Miss Mbuyi’s contention that the other employee had approached her, not vice versa, but it did not do so.
- The employer did not put all of the allegations it relied upon to dismiss Miss Mbuyi to Miss Mbuyi.
For example, the employer asked Miss Mbuyi in the disciplinary hearing “Do you think LP is wicked?” Miss Mbuyi responded “yes we are all wicked”. The employer later linked this to homosexuality in the dismissal letter, but did not do so at the time of the disciplinary hearing. It did not appear that Miss Mbuyi was ever asked if she stated in terms that homosexuality was, in her belief, a sin.
- The employer did not appear to take into account the evidence that LP approached Miss Mbuyi to ask her about religion, rather than Miss Mbuyi approaching LP. Miss Mbuyi was clear in this case that LP had:
a. first raised Miss Mbuyi’s church;
b. first raised her own sexuality and lifestyle;
c. asked if she would be welcomed at church; and
d. specifically asked what Miss Mbuyi believed God thought about her living arrangements.
- The employer did not take any action against LP. The tribunal commented that both could have been asked to confirm that discussing matters of religion, sex and sexuality at work was inappropriate and would not be repeated.
- The employer did not refer to Miss Mbuyi’s gift of another religious book to another employee, which the tribunal commented would tend to support the proposition that Miss Mbuyi would take opportunities to share her faith with anyone.
- The employer’s reasoning in the dismissal letter did not appear to be supported by evidence. It stated that she had specifically targeted LP because of her sexual orientation and that this constituted harassment. The tribunal commented that this was “an untenable finding on the evidence of [Miss Mbuyi], which was allegedly all the [employer] considered”. The employer should ensure that the evidence supports its conclusion.
- The employer did not give Miss Mbuyi a warning.
- The same person was heavily involved in both the dismissal and appeal.
What should an employer do?
Following this case, top tips for an employer who is considering dismissal where a protected characteristic is an issue are as follows:
- Carry out a reasonable investigation.
- Put all allegations to the employee which may be relied upon when dismissing.
- Do not make any stereotypical assumptions.
- Ensure that points in the employee’s favour, as well as those which go against the employee, are taken into account and referenced in any dismissal letter.
- If a response in a disciplinary hearing could be a reason for dismissing an employee, this allegation should be put to the employee before a decision to dismiss them is taken.
- Treat employees consistently; if two employees are involved in an inappropriate conversation, consider whether disciplinary action should be taken against both of them.
- Be clear about the behaviour that is expected from employees and try to seek agreement about appropriate behaviour going forwards.
- Consider whether a warning should be given to an employee rather than dismissing them.
- If dismissal is a possible outcome, ensure that the employee is aware of this before the disciplinary hearing takes place.
- Ensure that the reason for dismissing the employee is supported by evidence.
- Different people should hear the disciplinary hearing and any appeal.
The reason for dismissal is absolutely key when concepts of religious belief and sexual orientation are in issue. It is interesting that the tribunal commented in this case that it may be that the employer would have been justified in dismissing for Miss Mbuyi’s refusal to actively engage in reading certain literature or otherwise promoting family units other than those formed by husband and wife. Whether this could be justified would depend on all the circumstances.
It should be noted that this case is only an employment tribunal decision and is therefore not binding. A case with similar facts could be decided in a different way.
Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14
For more details about issues of religion, belief, sexual orientation or other protected characteristics please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
The limits on Tribunal compensation increase today: (more…)
SUMMARY: The limits on compensation for unfair dismissal claims and statutory redundancy payments will increase from 1 February 2013. (more…)
SUMMARY: The Employment Appeal Tribunal considers whether continuity of service is preserved where there is a break in service with the same employer.
SUMMARY: Recently there have been two claims involving postings on Facebook, one in the Employment Appeal Tribunal and one in the High Court. (more…)
SUMMARY: The Employment Appeal Tribunal has held that a claimant can continue claims against other respondents even when it has signed a COT3 with one respondent.
SUMMARY: The Court of Appeal has overturned an Employment Appeal Tribunal decision and has held that an LLP equity partner is not a worker.