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Welcome to our April 2014 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case developments over the last month.
DEVELOPMENTS TO LEGISLATION
Employment Tribunal Statistics Published
We promised to keep you updated on any further developments regarding the introduction of tribunal fees. Statistics for October to December 2013 were published earlier in the month showing an apparent 79 per cent decrease in claims compared with the period October to December 2012.
The MOJ say that these figures need to be treated with ‘extreme caution’ but if the trend continues it might result in a further challenge to the fees regime.
Abolition of Statutory Discrimination Questionnaires
From 6 April 2014, statutory discrimination questionnaires will be abolished in respect of all claims after that date. Currently, an employee can request information relating to their potential claim of discrimination and the employer is required to respond within 8 weeks.
This news will be welcomed by employers given the time consuming and costly nature of the exercise but in reality there may not be much difference as an individual may still raise informal pre-claim questions and the Tribunal can be asked to draw an inference from an employer’s response (or lack of response). Therefore an employee can still make a similar request in the future. Acas have issued separate guidance on how to raise and respond to such questions.
From 6 April 2014, the maximum compensatory award will increase from £74,200.00 to £76,574.00. This of course will be subject to the limit of one year’s pay which has been in force since July 2013. The Order also increases the maximum for “a week’s pay” from £450.00 to £464.00.
Naming and Shaming of National Minimum Wage Offenders
The government has published details of five employers who have failed to pay their employees the correct National Minimum Wage (NMW), as part of its revised naming and shaming scheme which was announced in August 2013.
From 7 March 2014, the financial penalty for employers who fail to pay their workers the NMW increased from £5,000 to £20,000. However, the government intends to legislate further to impose a penalty of £20,000 for each individual employee who has been underpaid, rather than this being the maximum fine for each employer.
Changes to Rehabilitation Periods
Changes came into force earlier in the month to the legislation that governs the periods for which individuals are required to disclose criminal convictions on application forms.
In the main, the period of rehabilitation now runs from the date that imprisonment ends, rather than the date of conviction, and the periods are substantially reduced. So, for example, a 12-month prison sentence will now become ‘spent’ four years after the end of the sentence (rather than 10 years after conviction).
CASE LAW DEVELOPMENTS
Admissibility of Covert Recordings
As covered in our recent Breakfast Briefing, the case of Punjab National Bank v Gosain dealt with the question of admissibility when an employee hides a tape recorder and captures comments made during his employer’s private deliberations during a grievance and disciplinary hearing.
Although earlier cases decided that this part of the hearing would not be admissible, in this case the recording was admitted because the material recorded fell well outside of the area of legitimate consideration of matters within the grievance and disciplinary panel’s remit. The employer was alleged to have made wholly inappropriate comments about the employee when she was out the room.
The EAT stated the correct test is to undertake a balancing exercise, between the relevance of the evidence and the interest in preserving the confidentiality of private meetings.
Employers should therefore be alert to employees trying to record internal meetings and leaving telephones or handbags in meeting rooms. You should consider prohibiting such recordings in relevant policies and most importantly take great care over what is said even when the employee is not there!
Discrimination: Removal of Dog from Pregnant Police Dog Handler
Was it a detriment for a police dog handler to have her dog removed from her when she was no longer operational due to pregnancy?
Yes, held the EAT in Metropolitan Police v Keohane, the removal of the dog produced a risk of an impact on career progression and loss of overtime on the Claimant’s return, and so was a detriment.
Whilst the Police’s need to keep a search dog operational might have been the major factor in the removal decision; that did not mean that the Claimant’s pregnancy was not a cause of it.
The EAT overturned the employment tribunal’s dismissal of an indirect sex discrimination complaint arising from the dog’s removal, noting that the policy of removing dogs without guaranteeing their return to handlers would have a differential impact on one gender as a whole, so it would be indirectly discriminatory, although it may be open to justification. This case serves as a useful reminder to give careful thought before removing any perceived benefits, entitlements or indicators of status from pregnant employees.
Discrimination: Dismissal After End of Maternity Period
Does dismissal for absences due to post-natal depression arising after maternity leave amount to sex and/or pregnancy and maternity discrimination?
No, held the EAT in Lyons v DWP JobCentre Plus.
By being dismissed, the Claimant was treated unfairly for a pregnancy-related illness. However, unfavourable treatment only amounts to pregnancy or maternity discrimination if it occurs between the beginning of pregnancy and the end of maternity leave (the protected period). As the Claimant was dismissed after the protected period her claim under this ground failed.
The Claimant’s claim for direct sex discrimination also failed. The EAT held that if a woman suffers a pregnancy-related illness which extends beyond the period of her maternity leave, the employer is entitled to take into account the period of absence after the maternity leave and compare that period with any period of sickness of a man.
Although this case gives hope to employers dealing with long-term sickness, whatever the cause, please rely on it with caution. We suggest that you obtain specific advice where pregnancy related illnesses are concerned as it is not always as easy to separate the fact of the sickness from the reason behind it.
Direct discrimination and Immigration Status
Does mistreatment of a worker on the ground of immigration status constitute direct discrimination?
No, holds the Court of Appeal in Onu v Akwiwu.
Two Nigerian women claimants who came to the country on a migrant domestic worker visas to work for families were found to have been subjected to abuse and exploitation. Both asserted mistreatment based on immigration status, which was intimately linked to their nationality, and as such direct discrimination.
At the EAT, it was held that the mistreatment was due to their vulnerability as migrant workers and was not direct racial discrimination.
The Claimants appealed and the Court of Appeal decided that the tribunal were entitled to find that the immigration status was the reason for the mistreatment. They also decided that immigration status did not equate with nationality and that direct discrimination could only be made out if grounds for the mistreatment was a protected characteristic.
‘Receiving’ Surrogate Mother Not Entitled to Maternity Leave
Is a commissioning mother in a surrogacy arrangement entitled to maternity leave, particularly where she has breastfed the child following birth? Not according to the opinion of the CJEU.
The Claimant and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The Claimant lodged a claim with the Employment Tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child.
This was referred to the European Court which held that although maternity leave is intended to protect the special relationship between a woman and her child, the grant of maternity leave presupposes that a worker has actually been pregnant and given birth to a child.
The Court also found that an employer’s refusal to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive. This is an interesting and perhaps unusual case and we wouldn’t be surprised if there was more to come on this subject so keep reading!
If your require any further clarification in relation to the above developments, or if you need any further assistance, then please do not hesitate to contact our specialist employment solicitors on 0161 832 3304.