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Check here for the very latest news on all employment issues…

Latest Brief - Week Ending 13 April 2018

Shared Parental leave and discrimination

The EAT has this week been asked to decide a case on pay in respect of Shared Parental Leave.  Specifically, the Tribunal was asked to decide whether it was direct sex discrimination for an organisation to provide for a higher level of maternity pay to mothers than the amount of shared parental pay made available to fathers. 

When a Tribunal had considered this matter, it had found that it was discriminatory to pay enhanced maternity leave and not to enhance shared parental pay.  The Tribunal's reasoning for this was that the purpose of maternity leave is childcare, and the caring role that the father wished to perform following the initial 2 weeks compulsory maternity leave, was not exclusive to the mother.  

However, the EAT found that failing to enhance shared parental pay in line with enhanced maternity pay was not direct sex discrimination.  The EAT found that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth, and the purpose of shared parental leave is different to this. Therefore a father's situation while on shared parental leave was not comparable to that of a woman on maternity leave.  

In any event, the EAT found that payment of maternity pay at a higher rate fell under section 13(6)(b) of the Equality Act as special treatment afforded to a women in connection with pregnancy or childbirth.

Amending a discrimination claim

This case concerned a case for disability related discrimination, where the claimant applied for the claim to be amended to include a claim for direct discrimination.  The Tribunal will only allow an additional allegation to be included in an existing claim (where the claimant is out of time to lodge the new claim), in specific circumstances.  One of the circumstances in which this would be permitted is where the inclusion of the additional claim is simply a mere relabelling exercise.  

In the case of Reuters Limited v Cole, decided this week, the EAT held that a Tribunal was wrong to allow an application to amend a disability related claim to include a claim for direct discrimination on this basis.  Although the direct discrimination claim arose from the same facts, there was a more onerous test for direct discrimination, so that wider factual enquiry would be required, and consideration of a comparator, which would not have been required previously.  The inclusion of this claim was therefore more than simply a relabelling exercise.  
This case is good news for respondents, as it arguably makes it slightly more difficult for claimants to include additional claims at a later stage in proceedings. 

Clarification on ACAS time limits

A case this week has helpfully clarified the position in relation to the time limits for filing a claim following ACAS early conciliation.  The legislation sets out two mechanisms for the extension of time, one involving extending time by the period for which early conciliation lasts, and the second providing for an additional month in circumstances where the claimant contacts ACAS with less than 1 month to go before the deadline for filing a claim.  

There was some dispute about whether these were sequential or alternative, and it has now been clarified that they are sequential.  In other words, the time limit is first extended by the length of the conciliation period.  Then, if (and only if), the time limit would expire within a month after the end of conciliation, the time limit will expire at the end of that month.  In practice, this means that there will always be a minimum of 1 month between the end of early conciliation and the expiry of the time limit.

Latest Brief - Week Ending 6 April 2018

Change to rules on taxation of payments in lieu of notice

From 6th April 2018, new tax and NICs rules apply to payments in lieu of notice made on termination of employment. Currently, the general rule is that where there is a payment in lieu of notice (PILON) clause in the contract of employment, a PILON payment will be taxable, whereas if the agreement is silent on the point, such a payment can be payable tax free.  Going forward, where the termination date and termination payment date both occur after 6th April, employers must subject to tax and NICs a portion of a termination payment equivalent to the basic pay that an employee would have received had the employee served his/her notice in full.  Whether or not the contract contains a PILON clause will not have an impact on the tax position.  It is worth noting that where notice has been served in full, the new rules will not apply.  

Claim struck out for discussing case during evidence

The EAT has this week confirmed that a Tribunal was correct to strike out the claim of a claimant who discussed elements of her case in a break in proceedings, while she was giving evidence under oath.  The Claimant, who was bringing a claim against the BBC, was warned by the judge on a number of occasions not to discuss her evidence with anyone while under oath, but the Respondent overheard her speaking to a journalist.  The Respondent successfully applied for the Claimant's claim to be struck out on the basis of unreasonable conduct by the Claimant, and the impossibility of a fair hearing.  

Speaking to a journalist may seem a fairly extreme example, but this case is a useful reminder of the need to ensure that a witness in a Tribunal hearing should not speak to anyone at all about the case and their evidence while under oath, including family members, colleagues and their own lawyers!  

Gender pay gap reporting - update

The deadline has now passed for both public and private sector employers with over 250 employees to publish their gender pay gaps.  The results show that 78% of large public sector employers pay men more than women, with only 8% reporting no pay gap at all.  The median pay gap was 9.7% for private sector employers.  The finance sector reported the largest gender pay gap, at 35.6%, with the smallest pay gaps within the accommodation and food services, at 1%.  This could perhaps be explained by such businesses employing a large proportion of staff on the minimum wage.  

Annual changes on 6th April

April is always a busy time for employment changes, with the usual changes taking effect on 6th April, in addition to the tax changes discussed above, and on 4th April, the deadline for publishing gender pay gap reports.  From 6th April, increases to both the national living wage and national minimum wage will come into effect, in addition to the usual annual increases to SSP, and payments in respect of statutory maternity, paternity and adoption leave.  The usual weekly increase to the cap on a week's pay has also taken effect, for the purposes of calculating statutory redundancy payments, and basic awards in the Tribunals.  The maximum compensatory award that claimants can receive in unfair dismissal claims will also increase.  

If you would like further information in relation to any of these changes, please get in touch.