What did we get up to last month?
We were interested to hear the comments by Chuka Umunna MP, the Shadow Secretary of State for Business, Innovation and Skills, that Labour would undertake a major reform of the employment tribunal system if elected in 2015. While no specific details were given as to what this reform would entail, it would appear to be prompted by the introduction of tribunal fees which Mr Umunna decribed as “unsustainable” and a curtailment of an individual’s access to justice. The Financial Times suggests that the reforms might mean a system of means-testing, potentially resulting in higher fees for those who can afford it.
Labour has also indicated its intention to introduce a minimum wage of £8 per hour by 2020. Although this seems like a large increase when compared to the current rate of £6.50, some commentators have questioned how significant the increase actually is compared to the current percentage rise which takes place annually.
Our “Misconduct Disciplinaries and Dismissals” HR Breakfast Club on 16 and 18 September went very well – thank you once again to all who attended and took part. We got some excellent feedback, with comments such as: “As always, a relaxed format with constructive and pragmatic advice” and “Always clear and precise information delivered very well.” We hope to see some more new faces at our next event.
Any plans for next month?
We’re really excited to be opening our new office in Nottingham on 3 November 2014. We will be providing a full range of commercial services, including employment, from the premises at Cumberland House on 35 Park Road in Nottingham and look forward to establishing good relationships with Nottingham businesses. Email us if you would like more information about the Nottingham office, or if you would like to pop in and see us!
Any new cases to be aware of?
The first decision on the question of whether or not a company discriminates against male employees if it pays enhanced maternity pay but does not pay enhanced additional paternity pay to a man who takes additional paternity leave, has been reached by the Employment Tribunal in Shuter v Ford Motor Companies.
Mr Shuter took 5 months’ additional paternity leave after his wife (who worked for another employer) returned to work. He was paid the statutory rate of pay for the whole of his leave in accordance with Ford’s policy. In contrast, Ford paid its female staff on maternity leave, up to 52 weeks’ full basic salary, a significantly more generous scheme. Mr Shuter argued that if, when he took his leave, he had been a woman on maternity leave, he would have received £18,000 more in pay.
The Tribunal rejected his claim of direct discrimination on the basis that the correct comparator was a woman taking additional paternity, which can be the case where the mother’s partner or spouse is a woman. The Tribunal held that in those circumstances, the woman would have been treated in exactly the same way as Mr Shuter. He was therefore not treated less favourably on the grounds of his gender.
In his indirect discrimination claim, the Tribunal held that although men would be disproportionately disadvantaged by the policy – given that most additional paternity leave is still taken by men – the policy was justified: Ford were able to provide evidence dating back to 1999 showing that it had introduced the generous maternity policy as part of this drive to increase its number of female employees, and that this had proven to be successful. On this basis, the Tribunal found that Ford’s generous maternity policy was a proportionate means of achieving a legitimate aim.
This is only a Tribunal level decision and although as a result it is not binding on other tribunals, employers who currently pay enhanced maternity pay to its female staff while only paying statutory additional paternity pay will be very well advised to consider whether it is able to justify doing so, with reference to documentary evidence which supports this justification. Without justification, employers should consider paying staff on maternity leave, additional paternity leave and shared parental leave (when it comes info force) at the same enhanced rate.
In Plastering Contractors Stanmore Ltd v Holden, the EAT held that Mr Holden, who had been employed by Plastering Contractors for 4 years before accepting £200 to become a labour-only subcontractor, was a worker and therefore entitled to bring a claim in respect of unpaid holiday pay.
The EAT upheld the Tribunal’s decision that despite the fact that Mr Holden had agreed that he would be a labour-only subcontractor, personal service by him was expected and required by Plastering Contractors. Further, the Tribunal was able to find on the fact that Mr Holden would not have been permitted to provide a substitute to carry out the work if he was unable to. Furthermore, during each assignment there were mutual obligations on Plastering Contractors to provide the work and for Mr Holden to accept it. Mr Holden did not generally work for any other business, and he was appointed to work under the supervision of one of Plastering Contractors’ supervisors at particular sites and therefore the requirement of integration and control had been met. On this basis, the EAT held that the Tribunal was right to find that Mr Holden was a worker, and not genuinely self-employed and was entitled to paid holiday accordingly.
