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All things being equal?

24 July 2019 by Lydia Newman

All things being equal?

Maternity pay and shared parental leave pay do not have to be equal

The Court of Appeal (COA) has ruled that employers are not required to pay employees enhanced parental leave pay to match an enhanced maternity pay policy.

In two similar cases heard together, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, the employers offered enhanced maternity pay but statutory rate parental leave pay. In both cases the COA rejected the claims.

In the case of Ali it was argued that Capita’s policy was direct discrimination against men as after two weeks couples effectively had a choice about how to provide childcare. The COA disagreed and considered maternity leave was not simply a period of time for childcare.

A different argument was pursued in Hextall, that it was indirect sex discrimination to fail to pay the same level of pay to men on shared parental leave as women on maternity leave. The COA considered this claim to be about equal pay, as a result of the requirement for contractual sex equality clause for all employees under the Equality Act 2010. Again, the COA found that parental leave and maternity leave were not comparable.

The decision in these combined cases appears to settle the legal position for now that employers are not required to equalise the amounts payable to women on maternity leave and women or men as part of shared parental leave.

Regular Voluntary Overtime

The COA has ruled that regular voluntary overtime and non-guaranteed overtime should be taken into account when calculating holiday pay.

In the case of Flowers and others v East England Ambulance Service NHS Trust two types of overtime were not included within holiday pay calculations. The first was non-guaranteed overtime such as additional time at the end of a shift when crews were dealing with an emergency. The second type was agreed in advance voluntary overtime. Initially the Employment Tribunal found that the first type of overtime should be included within holiday pay calculations as employees were contractually required to complete the work, whereas the second should not as employees were not contractually required to volunteer for overtime. The Employment Appeal Tribunal (EAT) found that the voluntary overtime could also be taken into consideration if the overtime was regular, with cases to be considered on an individual basis.

The COA agreed with the EAT that voluntary overtime could be taken into account if it was regular. Despite a recent judgment by the CJEU which appeared to contradict this position the COA considered the correct position, whatever the type of overtime, was whether it was sufficiently regular and settled to amount to normal pay.

In light of this case and the recent case of Fitz v Holland and Barrett (in which an employee had not been remunerated for work opening and closing retail premises) it would appear prudent for employers to keep clear and transparent records of employees working hours, including overtime, in order to ensure that appropriate holiday pay is calculated. An audit of overtime to consider whether it is likely to be considered regular and settled is also recommended.

When Collective Bargaining Rights Can Be Overridden

The COA considered the scope of collective bargaining in Kostal UK v Dunkley.
In this case collective bargaining had broken down and the employer made two pay offers directly to the employees for a one-off payment of £3,800 compensation to reach an agreement on terms of employment not determined by collective agreement.

It was argued that this was in breach of s145B of TULR(C) A 1992. However, the COA interpreted the legislation to mean that prohibition only occurred in two circumstances:

a) When a union is seeking recognition and the employer makes an offer to employees to prevent collective bargaining determination
b) When a union is recognised and an employer makes an offer to employees to prevent collective bargaining in the future permanently.

As a result of this position the COA held that there had not been breach of the legislation as a result of the fact that this was a one-off occurrence on a particular issue and was not an attempt by the employer to permanently prevent collective bargaining.

This is the first consideration of this aspect of the legislation and is useful precedent when collective bargaining has reached an insurmountable obstacle – unions cannot prevent a deal being done on one occasion directly with the employees.

Withdrawal of Role Abroad on Basis of Illness Was Not Disability Discrimination

An employee has lost a claim for disability discrimination in which a posting to the UAE was withdrawn following a medical examination which stated that there was a high risk that medical intervention would be required during the time of the posting.

In the case of Owen v AMEC Foster Wheeler Energy Ltd and anor the Claimant alleged that the decision not to allow him to travel to UAE was direct and indirect disability discrimination along with a failure to make reasonable adjustments.

It was held that there was no direct discrimination on the basis that an employee without the Claimant’s disabilities (including most notably below knee amputations and type 2 diabetes) would have been treated in the same way, by undergoing a medical assessment and reaching a decision in relation to the position on the basis of the medical assessment. It was found that the assessment was a provision, criterion or practice (PCP) that could lead to a substantial disadvantage. However, the original tribunal found that this was objectively justified as a proportionate means of achieving a legitimate aim – checking that employees were fit and able to go abroad to work. It was also considered that there were not any reasonable adjustments that could be made to the medical assessment and the process had been fair.

Both the EAT and the COA upheld these findings. The COA noted that the Tribunal had been entitled to rely on evidence from a doctor engaged by the employer in reaching its conclusions.

This case serves as a timely reminder that employers are able to reach common sense decisions to protect their interests and ultimately (although the Claimant in this case disagreed) the health of employees. Companies may require employees to undertake medical assessments prior to taking up roles at home or abroad in order to ensure that they are fit and able to carry out a job.

Provided that such assessments are carried out in a fair and transparent manner as a proportionate means of achieving a legitimate aim it should not amount to indirect disability discrimination but care should be taken to assess matters of this nature in detail as it is not sufficient to simply assert objective justification, it must be evidence based and should not be viewed as a ‘quick fix’ to a complex issue. 

Lydia Newman is an employment solicitor

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