November 2014 Employment Law Newsletter


If you would like to discuss any employment issues please contact
Julie Taylor on 01635 508181

The final shared parental leave and pay regulations have been published and largely remain the same as the draft proposals. The legislation will be implemented from 1 December 2014, but the new provisions will only apply for parents of children who’s “Expected Week of Childbirth” (EWC) occurs on or after 5 April 2015 or for children placed for adoption on or after this date.

For employed women, the current 52 weeks of maternity leave (39 of which is paid) will remain in place, including the 2 weeks of compulsory leave immediately after the birth.

However, additional paternity leave will be abolished when the new Shared Parental Leave (SPL) is available. Consequently, the only entitlement the other parent will have will be the two weeks’ ordinary paternity leave and pay or their rights under the under the SPL scheme.

SPL allows parents to share up to 50 weeks of the leave (37 of which will be paid). Where the mother and partner both meet the eligibility requirements, the mother will be able to end her period of maternity leave and pass the untaken balance of the remaining leave, and any remaining pay, to her partner as flexible shared parental leave.

2.    More on holiday pay!  
There has been lots in the news about the Employment Appeal Tribunal’s decision that holiday pay should include guaranteed and non-guaranteed overtime and also the limit that was placed on backdated claims. You can read more here

There was also an expectation that the decision regarding the limit on how far back the claims could stretch would be appealed. However, Unite, the union representing the employees, has announced that they will not be appealing against the decision.

3.    Maternity leave & redundancy
The EAT has held that the duty to offer a women on maternity leave a suitable alternative vacancy arises when the employer becomes aware that her role is redundant or potentially redundant. While failure to offer a suitable alternative vacancy will render the dismissal unfair, it does not necessarily mean that direct discrimination has also taken place as the treatment was not necessarily ‘because of’ the pregnancy or maternity leave.

The case concerned an employee who was on maternity leave from July 2012 and was notified at the same time that there was a risk of redundancy as a result of the employer combining two positions. Both employees a risk of redundancy were interviewed for the newly created role. The employer considered the other employee a better candidate and they were offered the job. The employee on maternity leave was then dismissed for redundancy in April 2013 and brought two successful claims against the employer for failing to offer her a suitable alternate vacancy and direct discrimination. The employer appealed on the grounds that direct discrimination was not a direct consequence and that the duty to be offered a suitable vacancy only arose when the decision was made between the two employees at risk.
The EAT concluded that the legislation did not intend that failing to offer a suitable available vacancy would automatically be discriminatory. They considered it would undermine the protection offered to employees on maternity leave if the employer was free to wait until after the restructuring exercise was completed before offering the employee a vacancy.

This case highlights that employers should note the exact point in time when a redundancy situation as well as potential vacancies and that it remains very important to be aware of the additional rights of employees on maternity leave during a redundancy situation.

4.    Stress in the Workplace
The Court of Appeal has upheld the decision of the High Court that the Foreign & Commonwealth Office (FCO) did act in breach of contract when they withdrew the High Commissioner of Belize without any preliminary investigation into the allegations made against him or without giving him the opportunity to respond.

The Court of Appeal, however, overturned the previous decision that the Commissioner should be awarded damages for the depression that he suffered following the withdrawal from his post as they were not satisfied that the depressive illness was a reasonably foreseeable consequence of the FCO’s decision. This was because the decision was not disciplinary nor a dismissal that may have made it obvious that depression could be the result and neither did the employee have any prior susceptibility to depressive illness.

However, employers remain well advised to ensure that before taking any action, even if not disciplinary, they should carry out an investigation and allow the individual to provide their version of events in the first instance.

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181 or  [email protected]

Follow Julie on Twitter: @JulieT_GL

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