Employment Law Update, May 2018: You can bank on us special

Equality Matters

No sex discrimination for father who was denied full pay during parental leave

In Capita Customer Management Limited v Ali, Mr Ali complained that as a male employee, under the policy relating to parental leave and maternity leave, he was entitled to less paid leave if taking shared parental leave following the birth of his child than a female employee would be entitled to taking maternity leave and receiving a higher rate of maternity pay. An Employment Tribunal upheld Mr Ali’s claim on the basis that he could compare his treatment with that of a female employee taking maternity leave, even though he had not given birth, and the difference in the level of pay was less favourable treatment because of his sex. At appeal his claim failed. The purpose of shared parental leave was different to that of maternity leave. The appropriate like for like comparator (which was a woman on shared parental leave) would have received the same level of pay as Mr Ali. Therefore, the inevitable conclusion was that there had been no discrimination because of sex.

BEIS inquiry into delivering on fair pay

The BEIS Committee is conducting an inquiry into compliance by private businesses with gender pay gap reporting and to consider what steps they are taking to address the gap. The inquiry will also look at the implementation of the recommendations on executive pay by the previous Committee in its 2017 report on Corporate Governance and recent developments on executive pay, plus the effectiveness of Remuneration Committees and institutional investors in combatting excessive executive pay.

EHRC’s useful guidance on equality & unconscious bias, plus, must know measures for removing work-related sexual harassment

The EHRC has published a useful handbook. It provides a brief overview of the Equality Act 2010 and acts as a reference guide for advisers in England and Wales. Whilst it is not designed to be a comprehensive summary of the current equality law, it is a good starting point to direct further reading. In particular it covers the definition of the 9 protected characteristics, the overview of different forms of prohibited conduct and how the legislation can apply in different contexts.

Additionally, EHRC has published reports on:

• The need for unconscious bias training to increase awareness of the issue and reduce both the bias from arising and any consequent discriminatory behaviour and attitudes. The report emphasises that as every individual holds different views of the world due to a complex series of experiences it does affect how they operate at work, in ways which they do not recognise, and that can have profound damaging effects.
• Ending sexual harassment at work, which has silenced the voices of many victims and normalised sexual harassment. The recommendations made focus on changing culture, greater transparency and strengthening legal protection. It includes a proposed new mandatory duty for employers and a statutory code of practice requiring all employers to take effective steps to prevent and respond to sexual harassment. It also recommends that the Government introduce legislation preventing employers from using non-disclosure agreements to sweep sexual harassment under the carpet and protect their reputation and that the time limit to bring a claim of sexual harassment to an Employment Tribunal be extended to 6 months (reflecting the time taken by many individuals to raise complaints).

GDPR

ICO publishes more GDPR guidance

The ICO has produced an online lawful basis interactive guidance tool. Its aim is to give tailored guidance on which lawful basis is likely to be most appropriate for an organisation’s data processing activities. This is a useful starting point, in addition to its other forever evolving GDPR material.

ICO awaits your feedback

For those who would like to provide ICO direction and focus (and I expect there will be many) you can now complete the Draft Regulatory Action Policy consultation Snap Survey via https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/draft-regulatory-action-policy/.

Additional Knowhow

Working under protest does not = acceptance

In Abrahall & Others v Nottingham City Council & Anor, a few weeks after putting a single status scheme into effect the Council proposed freezing incremental pay progression for 2 years. The unions, who negotiated pay via a collective agreement, objected - but the freeze was imposed nonetheless. The Court of Appeal found that the pay freeze amounted to a breach of contract. Further, whilst the employees remained silent and continued working after the change was put in place, it did not necessarily mean that they had accepted the breach. The affected employees could claim for arrears of pay equivalent to what they would have earned if pay progression had been operated. This was on the basis that the pay freeze was wholly disadvantageous to them and the freeze was not something for which their agreement was required (as pay was negotiated collectively with the unions who had protested strenuously up to and beyond the date of the freeze).

Last straw doctrine: worth knowing

In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal confirmed that in a constructive dismissal claim an employee who has been subjected to a continuing series of breaches of the implied duty of trust and confidence can rely on all the employer’s acts, even though a previous breach had been accepted, provided the final act (i.e. the “last straw”) was part of the ongoing series of breaches. Each case would be a matter of assessment and the Court has set out 5 questions in its judgment which an Employment Tribunal must ask when deciding if an employee has been constructively dismissed.

In the case itself, the Court ruled that the Employment Tribunal was entitled to reject Ms Kaur’s claim as the last straw (this being that she disagreed with the outcome of a properly followed disciplinary procedure) could not be viewed objectively as destroying or seriously damaging trust and confidence.

Acas’s new agency workers guidance

Acas has published a new guide on agency workers as 25% of its calls related to such staff. The major concerns related to delays to payments due from agencies, not being paid at all or not being paid correctly. Their guidance covers matters including additional insights on what an agency worker means in practice and their rights.

EU re-approves state aid for EMI Schemes

The European Commission has recently confirmed that it would be re-approving the continuation of state aid for the UK’s Enterprise Management Incentive (EMI) scheme. This brings to an end a period of uncertainty regarding the scheme which started when the previous approval (granted back in April 2009) expired April of this year. EMI Options are an excellent way of attracting and retaining talented staff. If you are considering EMI Options, since you seem to have some time, we advise you seek legal advice and I would be happy to hear from you.

As ever wishing you all the best, and should you need me please feel free to contact me.