Latest developments with employment law and HR for March/April 2021

Here is a round-up of some interesting developments in the world of HR and employment law in the past couple of months.

A male employee on shared parental leave cannot claim sex discrimination because he is paid less than a woman on adoption leave. 

The employee, who was employed by Powys County Council, took shared parental leave after his wife returned to work.   His employer’s policy on shared parental leave provided that he would receive the equivalent of statutory maternity pay during such leave.   The employer’s adoption leave policy, however, provided for full pay during such leave.   The employee subsequently brought a sex discrimination claim against the council.  He compared himself to a woman on adoption leave and argued that the shared parental leave policy directly discriminated on the grounds of sex. 

Unsurprisingly, his claim failed.  The Employment Appeal Tribunal held that the employee’s situation – an employee on shared parental leave – was simply not comparable to a woman on adoption leave.   The Appeal tribunal pointed out many material differences between an employee on shared parental leave and a woman on adoption leave including that:

• adoption leave is an immediate entitlement on the placement of a child with the adoptive parent(s) whereas shared parental leave can only be taken with the partner’s agreement to curtail adoption leave;
• a woman on adoption leave will have chosen to be the main adopter for the purposes of Statutory Adoption Leave and would have been the main role in any matters relating to the adoption.

The Appeal tribunal rejected the argument that adoption leave, and shared parental leave were the same because the predominant purpose of both was to facilitate childcare.   In the view of the Appeal judges, the purpose of Adoption Leave extended well beyond childcare alone and therefore it was not possible to compare a person on shared parental leave to a person on adoption leave. 

Regular readers may recall a similar type of argument was brought before the Court of Appeal in the case of Capita Customer Management Ltd v Ali in 2019.  That case was based on a comparison by a male employee on shared parental leave to a woman on maternity leave.  The Court of Appeal in that case ruled that it was not possible for a male employee on shared parental leave to compare himself to a female employee on maternity leave for the purposes of a sex discrimination claim because the circumstances between them were materially different.    

The main practical “take-away” from this case is that if you pay enhanced pay to those on adoption or maternity leave you do not need to similarly pay enhanced pay to employees on shared parental leave.

Case reference:  Price v Powys County Council UKEAT/0133/20

The Employment Tribunal was wrong to refuse to adjourn a hearing where an employee required emergency dental treatment.

This case will resonate with anyone who has ever suffered the agony of toothache!

The employee rang up on the morning of her hearing to request an adjournment because she needed emergency dental treatment for an “excruciatingly painful abscess” (wince).  The tribunal judge however refused the adjournment and struck out her case as she had not attended the hearing. 

Luckily, the Employment Appeal Tribunal had a bit more sympathy for the employee’s plight and concluded, on appeal, that if she was unable to attend the hearing through no fault of her own, the adjournment had to be granted, since not to do so would amount to a denial of justice.

 Case reference: Mukuro v Independent Workers’ Union of Great Britain UKEAT/0128/19/BA

Protection from detriment in Health & Safety cases is to be extended to workers.

This is an important and imminent change to legislation.   The government has put forward for approval new Regulations which will extend the protection from detriment in health and safety cases to workers.  

Presently an employee has the right, under section 44 of the Employment Rights Act 1996, not to be subjected to any detrimental treatment by their employer on the basis that they leave or refuse to return to work or take appropriate steps to protect themselves because they believe that they are in serious and imminent danger.   

Before the coronavirus pandemic, this right was barely heard of, however now it is frequently cited by employees who are concerned about returning to work or travelling to work because of the risk of infection.  

The new Regulations (once approved) will extend the protection, currently only afforded to employees, to cover ‘workers’ as well and will apply to any detriments taking place on or after 31 May 2021.  

Employers therefore need to be aware that from 31 March 2021, all workers and employees will be protected from detriment in situations where concerns of serious and imminent health and safety are raised.   

From a practical perspective, as an employer, we recommend you:

• continue to review and update workplace risk assessments and communicate to all staff what measures you are taking to control risks.  
• have a clear procedure in place for dealing with worker complaints about health and safety and you should inform all workers what this procedure is.  
• Ensure that you deal with any concern raised by a worker or employee regarding health and safety promptly and appropriately, giving due consideration to the individual’s circumstances (since an individual’s perception of what constitutes serious and imminent danger will vary according to their own situation and beliefs).   
• Comply with government workplace safety guidance.

As always, if you would like further guidance or advice in this area, please contact us. 

Photo by Sandy Millar on Unsplash