June 26, 2017

UK - CABLE: Current Awareness Bulletin

Shared parental leave

Ali v Capita Customer Management Ltd ET/1800990/16 Whether shared parental pay should match enhanced maternity pay

A new father wanted to take shared parental leave (SPL) to care for his baby because the mother had received medical advice to return to work so she could recover from postnatal depression - but he was only entitled to statutory shared parental pay, while mothers could take 14 weeks' enhanced maternity pay. The claimant argued that, after the two weeks' compulsory maternity leave, a man caring for his baby should get the same pay as a woman performing that role.

The tribunal concluded that in the particular circumstances of this case, the claimant had suffered direct sex discrimination.

practical point

There are conflicting decisions at Tribunal level on this issue but it seems likely that this decision is an indication of how tribunals will respond to a sex discrimination claim by a father who intends to take on the role of primary carer after compulsory maternity leave, where a female comparator would receive enhanced maternity pay.  

This case is a reminder that, with the number of new mothers and fathers seeking to enjoy SPL rights gradually increasing, employers should consider and review any enhanced pay provisions they provide, and whether or not there is differential treatment depending on the exact type of leave taken, and under what circumstances.

Click here for a detailed update on this decision. 

 

Holiday pay

King v The Sash Window Workshop Ltd and another C-214/16   Carrying over annual leave entitlement

The claimant, engaged as a commission-only salesman, was self-employed and not entitled to paid holiday. After his dismissal, he brought a claim for paid leave for the entire 13 year period he had been engaged.

The tribunal concluded the claimant was a ‘worker’ and should be paid the leave he was entitled to take even though he didn't in fact take it. On appeal, the Court of Appeal referred this issue to the Court of Justice of the European Union. The Advocate General (whose decision is not binding but gives a good indication of the likely outcome of the case by the Court) said that unless the claimant was permitted to take paid annual leave, he was entitled to receive payment for holiday he hadn't taken for the whole 13 year period.

practical point

If this Opinion is followed by the Court, it will be significant for gig-economy employers as it could result in those employers being required to pay out significant sums in holiday pay - both for the periods of leave their workers take during their contracts and any accrued leave that's untaken on termination.

However, it is worth noting that if the claimant's contract had provided for him to take paid holiday, but he had chosen not to take it, then the outcome would be very different as it is unlikely that he would then be entitled to payment in respect of his holiday for the entirety of his engagement.

Click here for a detailed update on this decision.

 

Deduction of wages

Hartley and others v King Edward VI College [2015] EWCA Civ 455 SC How to calculate a day's pay

The Supreme Court considered whether an employer could withhold one working day's pay, or one calendar day's pay, for teachers who had been on a one-day strike.

In the absence of an express clause in their contracts, the Court concluded the most sensible approach to apportioning the employees' annual salary to a daily rate was by treating each day as 1/365th of their annual salary. This was because:

they were employed on annual contracts - the Court did not clarify what 'annual contract' means, but it appears to mean a permanent, rolling contract; and

it was accepted that the employees regularly worked outside their contractual hours, including at weekends and during holidays.

Practical point

The issue of how to approach apportioning salary is also relevant in the context of calculating holiday pay on termination.

The recent holiday pay cases did not provide any guidance on how this should be calculated, and there are conflicting decisions on whether the calculation of a daily rate for holiday pay should be on the basis of 1/260th or 1/365th of the employees' annual salary. This decision suggests a move to withholding one calendar day's pay (the 1/365 calculation), especially in the case of employees who are on annual contracts and are expected to work outside their normal contracted hours.

 

Disability discrimination and redundancy

Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16  Discrimination arising from an employee’s disability

The claimant unfortunately developed renal cancer and was off work from October to December 2014. During this period, his employer, found a way of restructuring its business that effectively deleted the claimant’s post, saving up to £40,000 a year. 

When the claimant claimed discrimination arising from his disability, the EAT decided that in order to uphold the claimant’s claim, the claimant’s absence would need to be “operative cause” of the unfavourable treatment.  In the current case, this test had not been satisfied; although the claimant’s absence gave the employer the opportunity to see how it would cope without him, the operative reason for the dismissal was not the employee’s absence, but the employer’s cost-saving programme.

Practical Point

Employers will welcome this decision as it places the emphasis on the issue of causation: what made the employer take the decision to dismiss. It underlines the fact that an employee can still be fairly dismissed for redundancy even where he or she suffers from a disability, but this case is very fact specific and employers should exercise caution before relying on it. 

It is also worth bearing in mind that if employers were to take a similar approach with women on maternity leave, it is highly likely that it would be found to be discriminatory on the grounds of sex.

Click here for a detailed update on this decision.