The central point of this quarter’s Newsletter is, to some extent, self-indulgent. The message I am trying to get across is just how difficult my job is and to explain why the advice that employment lawyers have to give is, of necessity, guarded and by no means guaranteed.
I want to look at some cases where Employment Tribunals (“ET”) apparently came to different decisions, based on similar facts.
Sex Discrimination Against Men
Two ET cases, Hextal -v- Chief Constable of Leicestershire Police and Ali -v- Capita Customer Management Limited, are on their way to the Employment Appeal Tribunal (“EAT”). Both are cases where men claim to have been discriminated against on the grounds of their sex because their employers routinely paid women on maternity leave more than the statutory minimum maternity pay but would only pay men the minimum rate while they were on Shared Parental Leave.
The law says that, when deciding whether there has been discrimination, an ET cannot take account of special treatment afforded to women in connection with pregnancy or childbirth. Only women get maternity leave and maternity pay and that is not discriminatory of men.
A 2011 EAT case indicated that those on maternity leave only needed to be treated more favourably than male colleagues, to the extent that it was reasonably necessary to remove the disadvantages occasioned by their condition.
Since April 2015, parents have been able to share up to 50 weeks of the woman’s Ordinary and Additional Maternity Leave (this is called Shared Parental Leave) and up to 37 weeks of her maternity pay (Shared Parental Pay).
The weekly rates for Statutory Shared Parental Pay and Statutory Maternity Pay are the same, currently £140.98 a week. It is not unusual for employers to pay working mothers more than these minimum rates. This pre-dates the introduction of Shared Parental Leave.
Before the ET, Mr Hextal lost but Mr Ali won. In the first case, the ET held that the special treatment was reasonably necessary to address the disadvantages suffered by working mothers. In the second case, it thought not, essentially saying that after the first couple of weeks the two parents were more or less in the same position and it was their decision who stayed at home to look after the child and who went back to work.
Let us hope that the appeal cases are heard together. It is not unknown for two separate EAT Panels to disagree, so that only the Court of Appeal can decide what the position is, generally no less than a year later.
In the meantime, how does a solicitor advise a client in these circumstances?
Working Whilst Asleep
A failure to pay the National Minimum Wage (“NMW”) carries criminal sanctions as well as the risk of a claim in the ET. The NMW Act and Regulations specify that an employee engaged in “time work” must receive at least the NMW.
Three similar cases came before different ETs. In two of them the employees won and in the third they lost. The three cases went to the EAT together under the name of the leading case: Focus Care Agency -v- Roberts. In one of the three cases, the employer was the charity, MENCAP.
The question before the EAT was whether an employee who had to sleep in so as to be able to carry out duties if required was engaged in “time work” for the full duration of the shift or only when he/she was awake to carry out those duties.
It is important that, in these cases, the employees were not actually engaged in what is defined as “salaried hours work”. Here, they were hourly paid and received a night allowance (of less than the NMW) for the sleep-in.
The EAT determined that there could not be a yes or no answer. It indicated that an ET had to ask itself these questions before deciding whether, in these circumstances, sleeping on the job was in fact working:
a.Was the employer obliged to have someone present throughout the period?
b.How crucial was it that the employee remained on site?
c.What was the level of the employee’s responsibility? Did he/she merely have to call the emergency services if required or was more expected of him/her?
d.Was it up to the employee to decide whether to intervene if something happened or was it up to someone else?
The EAT went on to say that “each case is likely to turn on the consideration of its own particular facts”.
In the MENCAP case, the employee received £29.05 for a 9-hour sleep-in. The evidence showed that in the preceding 16 months she had had to get up six times, whilst on duty.
Applying the four tests, the EAT found that she was entitled to the NMW for the whole shift. At the rates applicable at the time, this would be £60.30 (at current rates: £67.50).
After the case, The Guardian carried an article quoting MENCAP’s Director of Services as saying “This Judgment could leave the Organisation in financial crisis, at worst leading to insolvency and at best we may have to consider moving out of providing services altogether, which would create huge job uncertainty for our colleagues … We are sleepwalking into a complete collapse of social care for some of the people who need it most.”
The law of unintended consequences strikes again.
In circumstances such as these, the advice that the solicitor gives is pretty crucial. Unhelpfully, all we can say is “It depends …”.
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As I write this Newsletter, the firm has raised £3,632 towards its target of £10,000 for Cancer Research UK in memory of our late friend and Senior Partner, David Pennar Jones. A later Newsletter will give details of a gala function in November but this is your opportunity to chip in now. A number of Copley Clark colleagues are undertaking the Shine Night Walk on 23rd September 2017. At a time when I should really be tucked up in bed, I will be walking 26 miles in a circle from one inaccessible point of East London to another. Chuckle at my misfortune, by all means, but please pledge a donation at https://fundraise.cancerresearchuk.org/page/malcoms-fundraising-page.
As always, these newsletters are only a guide to some changes in Employment Law. They are by no means exhaustive nor an alternative to getting proper advice about your particular problem. Expressions of opinion are to be taken as my own and do not necessarily represent the view of the firm. Please call me for more help on any employment matter.
With best wishes.
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