In Capita Customer Management Ltd v Ali and another UKEAT/0161/17, the EAT considered whether an employer’s failure to pay a male employee enhanced shared parental pay was direct sex discrimination.   Background Direct sex discrimination Direct sex discrimination occurs where, because of sex, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), Equality Act 2010 (EqA 2010)). In determining whether a man has been discriminated against because of sex, no account is taken of special treatment afforded to women in connection with pregnancy or childbirth (section 13(6)(b), EqA 2010). Therefore a man cannot claim that he has suffered sex discrimination because he has not been accorded the same special treatment. However, the EAT has held that this does not allow for blanket – Read More…

In Hincks v Sense Network Ltd [2018] EWHC 533 (QB) the High Court dismissed a claim that an employer had been negligent when providing a reference for a former employee.   Background An employer that provides a reference for a former employee can be sued for negligent misstatement (a claim brought at common law in tort) if the reference is inaccurate. The duty of care which employers owe to employees when preparing references is to exercise reasonable skill and care and to provide a reference which is true, accurate and fair. The author must take reasonable care to ensure that the reference is not misleading either by reason of what is left out, or by including facts which, although viewed discretely might be accurate, either through nuance or innuendo generate – Read More…

1 April 2018 National living wage. The National Minimum Wage (Amendment) Regulations 2018 (currently in draft form) will come into force on 1 April 2018. The national living wage for workers aged 25 and over will increase by 33p to £7.83 an hour. The rates of other minimum wage bands will also increase. The Low Pay Commission has already began to consult on the national minimum wage rates for 2019. Statutory payments. The Social Security Benefits (Up-rating) Order 2018 (SI 2018/281) raises the level of statutory maternity, adoption, paternity and shared parental pay to £145.18 on 1 April 2018 (with maternity allowance rising to the same rate on 9 April 2018). Statutory sick pay rises to £92.05 on 6 April 2018. Public sector equality duties. The Equality Act 2010 (Commencement – Read More…

In Really Easy Car Credit Ltd v Thompson UKEAT/0197/17 the EAT considered whether an employer required knowledge of pregnancy in order to be liable for automatic unfair dismissal and discrimination on pregnancy grounds. Background An employee’s dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is connected to her pregnancy (section 99, Employment Rights Act 1996 (ERA 1996); regulation 20, Maternity and Parental Leave Etc. Regulations 1999 (the MPL Regulations). When considering the reason for a dismissal, the starting point is to identify the set of facts known to the employer, or the set of beliefs held by him, that cause him to dismiss the employee. In order to be liable under section 99 of the ERA 1996, the employer must have known, or believed, – Read More…

In Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 (previously known as A v B) the Supreme Court considered whether an employment tribunal was entitled to find that a school’s decision to dismiss a headteacher who was associated with someone who had been convicted of possessing indecent images of children was within the band of reasonable responses for the purposes of unfair dismissal. Background Unfair dismissal: band of reasonable responses There are two principal elements in an unfair dismissal claim under the Employment Rights Act 1996 (ERA 1996): •        Was there a potentially fair reason for dismissal? •        Potentially fair reasons include conduct and “some other substantial reason of a kind such as to justify the dismissal” (sections 98(1) to (3), ERA 1996). •        Was dismissal for that reason – Read More…

In Brazel v Harpur Trust UKEAT/0102/17 the EAT considered whether an employer could cap a zero hours, term-time employee’s holiday pay at 12.07% of annual earnings, or whether holiday pay should be calculated solely under section 224 of the ERA 1996. Background Annual leave entitlement Most workers, including part-time workers, have a right to a minimum of 5.6 weeks’ paid annual leave under the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The WTR 1998 do not define what is meant by a week’s leave. However, the established view is that a week’s leave involves a worker being away from work for a week. How this applies to a worker with no normal working hours can be difficult to establish. A common approach is to say that the worker accrues – Read More…

Gender pay gap reporting: equalities committee chair questions role of “toothless” EHRC Maria Miller MP, a former Minister for Women and Equalities and chair of the Women and Equalities Committee, has criticised the Equality and Human Rights Commission (EHRC) for not using the full extent of its powers under the Equality Act 2010 (EqA 2010) to properly enforce the gender pay gap (GPG) regulations. According to Miller, despite having “clear powers” to take action against non-compliant employers, the EHRC has taken a “toothless” approach by insisting on working with employers to ensure voluntary compliance rather than “take effective action against them in the courts”. Miller further accused the EHRC of failing to use the entirety of its budget and criticised its review of the complaints made by former BBC China – Read More…

 In Keeping Kids Company v Smith and others UKEAT/0057/17, the EAT considered when the duty to consult arose when a charity went into liquidation. Background Redundancy collective consultation: when duty to consult arises An employer is obliged to collectively consult if it “is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less” (section 188(1), Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)). When first adopted in 1975, the legislation required consultation to commence as soon as the employer’s state of mind triggered the duty to consult. In the case of the UK legislation this was when the employer first “proposed” dismissals. In the case of the Directive, the obligation applied as soon as collective redundancies were “contemplated”. This – Read More…

In Donelien v Liberata UK Ltd [2018] EWCA Civ 129, the Court of Appeal considered whether an employer had constructive knowledge of an employee’s disability in a reasonable adjustments claim.   Facts Ms Donelien was employed by Liberata UK Limited (Liberata) as a court officer for nearly 11 years before being dismissed in October 2009 for her persistent short-term absences and failure to comply with the absence notification procedure. Ms Donelien claimed to suffer from a variety of medical conditions, including hypertension and “work-related stress”. The effect of her absences was exacerbated by her obstructive approach and assumption that she could unilaterally decide to be absent from work without informing Liberata. Ms Donelien consulted her GP regarding her illnesses but refused to let Liberata’s occupational health service contact her GP. – Read More…

GEO may shame employers that fail to register soon enough for pay gap reporting The Government Equalities Office (GEO) has called on employers to make sure they register with the government’s online reporting service or risk being publically shamed. In a letter seen by Practical Law, written to employers who had still not registered on the government’s online reporting portal in December 2017, the GEO said that it may publish three lists in early 2018, revealing those employers who had published their gender pay gap data, those who have indicated that they are “on course” to report their data by registering on the site by some unspecified date, and those who have failed to register. The implicit suggestion is that this would take place earlier than the 4 April cut-off – Read More…