We set out details of 5 developments that could have a significant impact on HR practice.
1. Shared parental leave and sex discrimination
Is it discriminatory to pay men on shared parental leave (SPL) less than an enhanced rate paid to women on maternity leave? No, says the Court of Appeal.
In two separate appeals heard together, the Court of Appeal has decided that two men, H and A, were not discriminated against when their respective employers failed to pay enhanced shared parental pay equivalent to the maternity pay that a woman on maternity leave for the same period would have received. They brought their claims on different legal grounds but the result was the same in both cases.
Direct discrimination – what is the purpose of the leave?
A said it was direct discrimination not to pay him the same as a woman on maternity leave. He accepted that there was a material difference in circumstances during the first two weeks of compulsory maternity leave which he accepted is aimed at protecting a woman's health after childbirth, but argued that the purpose of maternity leave after that is the same as shared parental leave: childcare. The court rejected this. They said that the purpose of maternity leave is to protect a woman in connection with the effects of pregnancy and motherhood. This meant that the man had to compare his treatment with a female worker on SPL (not maternity leave). Since there would be no difference between the pay received by a man on SPL and woman on SPL, his appeal had to be rejected.
A contractual difference in SPL pay between men and enhanced maternity pay for women is properly characterised as an equal pay claim, rather than an indirect discrimination claim. Although a term of an employment contract which provides women with a higher level of pay is clearly more favourable to women than men, the equal pay provisions don't permit a man to make an equal pay claim based on more favourable terms which are enjoyed by a woman as a result of pregnancy or childbirth. Since these provisions are wide enough to include enhanced maternity pay, there is no claim for equal pay.
Indirect discrimination is concerned with criteria, policies or practices which appear to be neutral but have the effect of disadvantaging employees of one sex, unless the employer can show that they are justified. The Court rejected H's indirect discrimination claim on the grounds that the legislation doesn't permit discrimination claims in relation to claims which are properly equal pay claims (even where, as here, the equal pay claim fails).
Although not necessary for the purposes of the appeal, the Court still went on to consider the merits of the indirect discrimination claim. The Court came to some interesting conclusions:
- H's true case was that men in his position were disadvantaged, not by the practice of paying only the statutory rate to those taking SPL, but by the fact that only a birth mother was entitled to statutory and contractual maternity pay
- The correct pool of individuals for comparison purposes must only contain persons whose circumstances are the same as, or not materially different from, the Claimant. Since women on maternity leave are materially different from men or women taking SPL, they should be excluded from the pool. Once such women are taken out, it is clear that H suffered no particular disadvantage compared to others in the pool
- Any disadvantage to H would have been justified as being a proportionate means of achieving the legitimate aim of the special treatment of mothers in connection with pregnancy and childbirth
The end result was that all claims were therefore dismissed.
Employers who do not match enhanced maternity pay with shared parental pay will welcome this decision since it continues to confirm the UK Government's original guidance that there is no legal reason to do so. This is not the end of the story however, since we understand the Claimants are seeking permission to appeal to the Supreme Court. Notwithstanding the legal position, enhancing SPL pay to match enhanced maternity pay will no doubt increase the take up of SPL and therefore encourage more men to share in the upbringing of their children.
2. Vicarious liability: Employer was not liable for injury at Christmas party
The High Court has decided that an employer was not liable for an injury sustained by an employee at a work Christmas party, and it also was not vicariously liable for the actions of the person who caused the injury.
During a Cancer Research UK (CRUK) work Christmas party, Mrs Shelbourne was dancing when another partygoer, Mr Bielik, who had been drinking, tried to pick her up but lost his balance and dropped her, resulting in Mrs Shelbourne suffering a serious back injury. Mr Beilik was a visiting scientist and was not employed by CRUK. Mrs Shelbourne brought a claim against CRUK alleging that they were liable for her injury.
Mrs Shelbourne argued that, given alcohol was being served at the party, CRUK should have: conducted a risk assessment covering all eventualities stemming from inappropriate behaviour by partygoers; provided trained staff to look out for trouble at the party; and required each partygoer to make a written declaration that they would not behave inappropriately.
The Court decided that although CRUK owed Mrs Shelbourne a duty of care, it had not breached it and so was not liable in negligence. CRUK had conducted a risk assessment which took into account the fact that alcohol would be available, and there was no need for them to have gone on to address what might happen if an inebriated person did something untoward on the dance floor. The Judge concluded that a reasonable person would not think it was appropriate to impose the requirements Mrs Shelbourne argued for on the organisers of a work Christmas party or other similar social gathering.
It also decided that CRUK was not vicariously liable for Mr Bielik's actions because his behaviour was outside the "field of activities" entrusted to him as a visiting scientist and was not sufficiently connected with his conduct at the party so as to make CRUK vicariously liable.
Employers and their liability insurers will likely welcome the Court's decision in this case, particularly because it comes after recent UK decisions where vicarious liability was imposed on an employer after its Managing Director assaulted an employee at an unscheduled "drinking session" after a work Christmas party, and on another employer after a rogue employee committed a serious data breach (see our previous update which covers these cases).
The decision in this case illustrates that vicarious liability cases are fact-sensitive. Here there had not been previous incidents of inappropriate behaviour caused or contributed to by alcohol at work parties and no one had complained about Mr Bielik's behaviour before the incident. It was reasonable for the employer's risk assessment and organisation of the party to be informed by what had, or had not, happened in the past. If CRUK had a history of issues arising at their social occasions, the Court's decision might have been different.
3. Useful court guidance on dealing with subject access requests
The High Court recently ruled that the information provided in response to a subject access request (SAR) was inadequate and ordered the data controller to provide significant further information.
In this case Dr Rudd, a medical expert on exposure to asbestos, made a SAR to Mr Bridle, a lobbyist for the asbestos industry, after he alleged that Dr Rudd was part of a wider conspiracy to provide false evidence about the risks associated with white asbestos. On the basis that the response to his SAR was inadequate, Dr Rudd brought a claim against Mr Bridle and his company, seeking an order that they provide further information.
The Court said that the SAR response was inadequate. So Mr Bridle was ordered to provide a further SAR response, disclosing significant additional information. The Court said that:
- None of the exemptions relied on by Mr Bridle, namely journalism, regulatory activity and privilege, had been made out
- The information provided to Mr Rudd in response to his SAR was inadequate as it did not include any information about the nature, status or identities of the person, firm or company to whom the emails in question were sent. The identities of those who allegedly conspired, assisted or collaborated with Mr Rudd were part of his personal data. The information was focused on him and so is biographically significant. This also applied to those identified as individuals to whom allegations of fraud had been made.
The Court ordered Mr Bridle to provide a further SAR response which must include descriptions of the recipients of personal data, the identities of individuals who had been communicating with Mr Bridle about Mr Rudd and any information as to the sources of the personal data and the purposes for which it was processed.
Although this SAR was lodged prior to 25 May 2018 and so this case was considered under the previous legislation, the Court's conclusions and guidance are relevant under the GDPR.
In relation to the approach to disclosing the identity of recipients of an individual's personal data and to the purposes of processing data, this guidance is helpful for employers in clarifying their obligations.
That said, employers will not welcome the fact that this decision demonstrates the breadth of the obligations in relation to SARs and means that an individual's personal data may in some circumstances include the identity of third parties.
You can read more about this decision in our more detailed update.
4. Latest EAT decision on discrimination arising out of disability
An employer can only be liable for discrimination arising from disability if they knew, or could reasonably be expected to know, that the employee had a disability. But, in a recent case, the EAT said that even if the employer did not know about the employee’s disability at the time of dismissal, they may still be liable for discrimination if they are made aware of the employee's medical condition during the dismissal appeal process.
Mrs Baldeh, a housing support worker, was dismissed by her employer at the end of a six-month probationary period, after a number of concerns were raised about her behaviour and performance. She appealed against her dismissal and during the appeal hearing, for the first time, Mrs Baldeh provided information about her mental health. She explained that her behaviour could sometimes be unusual, that she could say things "unguarded" and she had in the past had a breakdown. However, her appeal was rejected and she subsequently brought a tribunal claim for discrimination arising from her disability.
The EAT said that the appeal hearing is an integral part of the decision to dismiss an employee and it is therefore relevant to consider what the employer knows, or ought to know, at the time they decide the outcome of an appeal. So the EAT concluded that it was at least arguable that the employer had actual or constructive knowledge of Mrs Baldeh's disability before it rejected her appeal.
This case serves as a useful warning for employers that they may obtain the requisite knowledge of an employee’s disability as late as the dismissal appeal hearing.
Mrs Baldeh did not provide medical evidence to support her assertion at the appeal hearing that the behaviour and performance issues were as a result of her disability. If an employer is made aware of an employee's disability in these circumstances, they should consider obtaining medical advice before holding a re-hearing of the disciplinary hearing with the medical evidence.
5. Employers must record daily working time
The European Court has held that to comply with EU working time laws, legislation in member states should require employers to set up a system to record workers' actual daily working time.
Under the Working Time Regulations (WTR), UK employers are required to:
- keep adequate records to show:
- whether the limits on maximum weekly working time, night work and working hours of young workers are being met
- records of opt outs from the maximum working week
- whether the provisions relating to health assessments for any night workers and young workers and the transfer of night workers to day work are being met,
- retain these records for 2 years from the date they were made
A Spanish workers’ union brought a group action against Deutsche Bank, seeking a declaration that the bank was under an obligation to set up a system to record the actual number of hours worked each day by its staff – so that it was possible to check that the working time limits were properly adhered to. The Spanish Court asked the European Court whether the EU working time provisions on maximum weekly working time and daily and weekly rest impose an obligation on employers to set up a system for measuring actual daily working time for individual workers.
The European Court concluded that the national law of all member states (including the UK) should require records to be kept showing actual daily working time for individual workers. The Court said that this is to help ensure that workers' rights are being complied with - because without reliable records of working hours and rest periods/ breaks being kept, it is difficult for workers to challenge their employers in relation to any alleged breaches and for courts to decide claims.
These requirements are clearly above and beyond what UK law currently prescribes, which means that currently, UK law is not compliant with EU law.
Public sector workers can benefit immediately from this decision as they can enforce EU law directly in UK courts and tribunals.
This decision does not directly impact on private sector employers now - that said, it will apply to them if either:
- The UK Government legislates to require these types of records to be kept – although this will take some time
- It becomes a matter of health and safety law or guidance - for example it becomes part of the HSE updated guidance
- In a UK tribunal or court decision, words are effectively added to the WTR so that they comply with the European position - which has been done historically in holiday pay claims
Clearly the situation regarding Brexit remains uncertain but, in the meantime, employers should think about reviewing their processes for recording working time, and consider whether they can easily comply with the requirement to keep a record of actual daily working time for each worker, including breaks, in compliance with this decision.