Employment Essentials: top 5 lessons from May 2019

10 June 2019

Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business.

Here are our five significant employment law developments you should be aware of this month - what they are and how they might impact your business.

  1. Employers are not required to match enhanced maternity pay for fathers taking shared parental leave
  2. Working time: Employers must have a system for measuring daily working hours of their workers
  3. Disability discrimination: knowledge of disability
  4. Disability discrimination: Withdrawal of overseas job posting due to health concerns NOT disability discrimination
  5. Unfair dismissal and religious proselytizing




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1. Employers are not required to match enhanced maternity pay for fathers taking shared parental leave

Where employers offer enhanced contractual maternity pay to mothers, can they only offer statutory shared parental leave (ShPL) pay? Does a failure to match contractual enhanced maternity pay for fathers taking ShPL amount to direct or indirect sex discrimination?

The Court of Appeal in the combined cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall has emphatically held that employers who pay enhanced contractual maternity pay but only statutory ShPL pay do NOT directly or indirectly discriminate against men and are not in breach of equality of terms (equal pay) legislation.

What does this mean for employers

This decision will come as a relief to the many employers who, on the introduction of ShPL regime, chose to maintain their enhanced maternity pay policies but only offer ShPL at statutory pay.

It is important to note that Mr Ali's case concerned an employer's policy that only provided enhanced contractual maternity pay for the first 14 weeks and so fell squarely within the minimum leave and pay period set out in the Pregnant Workers Directive for the health and wellbeing of the birth mother. So is it still arguable in such a case that there comes a point in time when maternity leave and pay is no longer designed to protect a woman's biological condition following pregnancy and childbirth and instead, its purpose becomes only childcare?

At the centre of the judgement is the Court of Appeal's conclusion that birth mothers on maternity leave are in materially different circumstances to men (or women) on ShPL, and that this distinction does not simply expire at the end of the two week compulsory maternity leave period. The Court of Appeal's judgment arguably greatly restricts the suggestion (as mooted by the EAT in Ali) that at some point during the 52 weeks of maternity leave (possibly after 26 weeks), the leave somehow loses its health and safety rationale and becomes purely leave related to childcare.

For more detail on this significant judgment and its impact see our recent alert 'Enhancing maternity pay but not shared parental leave pay does NOT discriminate against men'.

While this decision allows employers to offer maternity and ShPL pay at different rates, it is, of course, open to employers to enhance both maternity and ShPL pay. Employers should ask themselves if offering enhanced ShPL pay will assist in attracting and retaining talent in their organisation.

If considering matching enhanced maternity pay for those on ShPL, specialist advice should be taken to make sure the wording of the policy achieves what is intended.

A further appeal to the Supreme Court has been rumoured, so one to watch for more in the future.

2. Working time: Employers must have a system for measuring daily working hours of its workers

In a case brought by a Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO) the Court of Justice of the European Union (CJEU) has held that under the EU Working Time Directive (WTD), Member States are required to impose record-keeping requirements on staff to ensure the maximum 48 hour weekly working time limit is not exceeded if an opt-out is not in place and also to ensure minimum daily and weekly rest breaks are observed.

The CJEU noted the importance of the fundamental right of workers to daily and weekly rest periods and limits on maximum hours meaning employers are obliged to ensure that workers, who are the weaker party in the employment relationship, actually benefit from these rights.

In the Court's view, without a system that reliably records the working hours of the individuals within the business, it is very difficult, if not impossible, for workers to ensure their rights are complied with. To ensure the effectiveness of the rights provided, the CJEU has ruled that Member States "must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured".

The CCOO ruling concerns a challenge to Spanish law implementing the WTD, but has wide repercussions making working time record-keeping requirements more onerous across all EU Member States, including the UK and whether or not your workforce have signed 48-hour week opt-out agreements.

In order to be compliant with the WTD, employers should implement a system to objectively record all their workers' daily working hours. Employers should consider how they can collect the data needed to allow more detailed records of working time to be kept in a practical and cost effective manner. This does not mean a return to old-fashioned punch time cards. Modern working practices with the rise of agile working have led to less clearly defined and often trust-based working hours for many workers. The same digital technology which allows for more flexible working arrangements may also assist with modern time recording.

For more detail on this highly significant judgment and its impact, see our recent alert 'Working Time: what records must employers keep?'.

3. Disability discrimination: knowledge of disability

Under section 15 of 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.

Where the unfavourable treatment complained of is dismissal, does it matter that the employer did not and could not reasonably be expected to know that an employee was disabled at the time it took the initial decision to dismiss, but did know at the internal appeal against dismissal stage?

The Employment Appeal Tribunal (EAT) in Baldeh v Churches Housing Association of Dudley and District Ltd, confirmed that when considering whether the employer had knowledge (actual or constructive) of the claimant's disability, it is relevant to consider what it knew or ought to have known right up to the point at which it decides the outcome of any appeal.

In this case, Mrs Baldeh, a support worker was dismissed at the end of her six-month probationary period, because of her performance and her rude behaviour towards her colleagues. During the appeal hearing against her dismissal, Mrs Baldeh raised for the first time that she was suffering from depression, which could have influenced her behaviour. In particular, she stated that she could respond aggressively to others while suffering from a depressive episode. She also said that such an episode could affect her short-term memory, which may have been relevant to the concerns about her performance.

As the tribunal had rejected Mrs Baldeh's claim on the incorrect basis (lack of employer knowledge of the disability), the case has been remitted to the tribunal to determine whether there was a causal link between her disability and her poor performance and behaviour towards her colleagues (the 'something' arising from her disability). See Employment Essentials: 5 Lessons from May 2018 for more on discrimination arising from disability and knowledge of consequences of disability. It is only after that question is answered can the tribunal then consider whether the decision to dismiss was justified as a proportionate means of achieving a legitimate aim. That will involve balancing the prejudice to Mrs Baldeh of losing her job, against the need to achieve the legitimate aim of maintaining standards required of individuals working with vulnerable people and maintain a workforce where staff can work amicably in a pressured environment.

Lessons for employers:

An internal appeal is an integral part of the decision to dismiss:

  • In the context of an unfair dismissal claim, it has long been the case that an employer may act unreasonably in maintaining a decision to dismiss that was justified on the facts known at the time of dismissal but which could not be sustained in light of the facts available on appeal.
  • Similarly, in the context of a discrimination arising from disability claim, when considering whether the employer had knowledge (actual or constructive) of the claimant's disability, it is relevant to consider what it knew or ought to have known right up to the point at which it decides the outcome of any appeal.

Disability discrimination: Withdrawal of overseas job posting due to health concerns NOT disability discrimination

In Owen v AMEC Foster Wheeler Energy Ltd and anor, the Court of Appeal held that refusing to allow a disabled employee to undertake an overseas posting due to medical concerns did not amount to direct disability discrimination.

Direct disability discrimination occurs where, because of a disability, an employer treats a person less favourably than another. Direct disability discrimination cannot be justified. When bringing a claim, the claimant must demonstrate that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not substantially different to their own.

Mr Owen is a chemical engineer. He has double below-knee amputations and type 2 diabetes. He also suffers from hypertension, kidney disease, ischaemic heart disease and morbid obesity. He was offered a 12-month posting to Sharjah in the UAE. Prior to the posting, he was required to undergo a medical assessment with a third-party occupational health provider (standard practice for all employees undertaking overseas postings). It was assessed that Mr Owen was at a high risk of requiring medical attention while overseas due to his medical history, poor control of his diabetes and blood pressure, and the fact that he had already had a heart attack and that it may be difficult to get urgent suitable care in Sharjah.

The tribunal in this case, rejected Mr Owen's direct discrimination claim as a comparator without Mr Owen's disabilities who had also been identified as high risk in a medical assessment would not have been treated any differently. Accordingly, the medical assessment was a non-discriminatory reason for the decision not to send Mr Owen on the overseas posting.

Before the Court of Appeal, Mr Owen argued that the medical report was a proxy for his disabilities. He relied on a direct race discrimination case involving the refusal by a charity to appoint a woman of Sudanese origin to a post in war torn Sudan over concerns of impartiality and kidnap risk. In that case, these reasons were found to be a proxy for the protected characteristic of race. In other words, it was the employee's ethnic origin which was the reason for the employer's refusal, and so direct discrimination was made out, irrespective of the employer's motive. As direct discrimination, the employer could not justify its decision. This concept is sometimes referred to as 'indissociability', because the true reason and the proxy are indissociable from one another.

In Mr Owen's case, the Court of Appeal rejected the 'proxy' argument as the concept of indissociability does not readily translate to the context of disability discrimination. The concept of disability is not a binary one. It is not the case that a person's health is always entirely irrelevant to his or her ability to do a job.

The Court of Appeal agreed that there was no direct discrimination as a hypothetical comparator with a medical risk would have been treated in the exactly the same way, even if they did not have Mr Owen's particular disabilities. The Court also agreed that there was no reasonable adjustment that the employer could have made in this case. Mr Owen's multiple medical conditions made a medical assessment necessary. The employer had followed a fair and reasonable procedure and acted on independent medical advice as to the risks to Mr Owen if deployed to the UAE.

Lessons for employers:

This decision is reassuring for employers who require workers to undergo occupational health reviews prior to sending them on secondments or work placements. Nevertheless, decisions based upon medical advice must always be carefully considered and employers should still examine any medical advice relied upon to explore whether any identified risks can be reasonably reduced or sufficiently managed before taking a decision.

Unfair dismissal and religious proselytizing

The Court of Appeal in Kuteh v Dartford and Gravesham NHS Trust, has held that a nurse was not unfairly dismissed for gross misconduct when she continued to initiate discussions with patients about religion after being given a lawful management instruction to stop doing so after patient complaints.

In this case a nurse, working in a pre-operative assessment role, often took the opportunity to talk to patients about religion. Complaints were made by several patients, leading the matron to speak to the nurse about the inappropriateness of her actions. She assured the matron she would no longer initiate conversations with patients about religion. She then breached that assurance, with more patient complaints about imposed prayers and psalm singing. Disciplinary proceedings were brought and the nurse was dismissed.

The employment tribunal found the dismissal fair and the EAT refused permission to appeal. On appeal against that refusal, the nurse complained that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the right under Article 9 of the European Convention of Human Rights (ECHR) to manifest religion on the fairness of the dismissal.

Rejecting the appeal, the Court of Appeal confirmed that there is a distinction between the manifestation of religious beliefs and the inappropriate promotion or proselytising of those beliefs. In this case a dismissal for improper proselytizing (ie attempting to convert others to a particular religion) at work was not unfair nor a breach of Article 9.

As to the fairness of the dismissal, the Trust did not have a blanket ban on religious speech in the workplace. It only considered it to be inappropriate for the nurse to initiate discussions about religion with patients and asked her to obey a lawful management instruction not to do so. It was the improper manifestation of her beliefs that led to her dismissal.

Lesson:

In cases for unfair dismissal as well as for religious discrimination cases, an employee will not succeed in a claim for either where they have been instructed to stop proselytizing in the course of their employment but continue to do so.


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