We are pleased to provide you with the Herrington Carmichael LLP employment law update for June 2019.

This is a key note summary of some of the main developments in employment law in the last month.

1. Shared Parental Leave Pay

The cases of Ali v Capital Customer Management Ltd and Chief Constable of Leicestershire v Hextall considered whether it was discriminatory not to pay full salary to a father, taking shared parental leave, where a mother, taking maternity leave, would have received full pay. The Court of Appeal held it was not direct or indirect discrimination, nor did it give rise to an equal pay claim.

Mr Ali’s wife was suffering from post-natal depression and was advised to go back to work. Mr Ali, therefore, requested to take shared parental leave so he could care for their baby. He became aware that female employees on maternity leave were entitled to full pay for 14 weeks and requested the same. When this was refused, he submitted a grievance based on sex discrimination. It was accepted that the first two weeks of maternity leave are compulsory and associated with recovery after child birth, and so is unique to the mother. However the Court of Appeal additionally decided that the Claimant could not compare himself with a woman on maternity leave because the purpose of this leave was different to Shared Parental Leave. Maternity leave is used for the health and wellbeing of the mother whereas the purpose of shared parental leave is to aid with the childcare.

This case provides reassurance to employers that they can have differing approaches to maternity and shared parental pay, without the risk of a discrimination or equal pay claim.

2. Working Time Regulations

In the March edition of our update, we addressed the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. The Advocate General of the European Court of Justice gave an opinion that the Working Time Directive required employers to keep records of actual time worked. This month, the European Court of Justice (“ECJ”) itself has now given its judgment in this case and has agreed with this opinion.

The ECJ determined that employers must keep a record of all hours worked by their workers each day, in order to ensure compliance with the rules on maximum weekly working time and rest breaks. This judgment ruled that all EU member states must require employers to set up an ‘objective, reliable and accessible system’ enabling the duration of time worked each day by workers to be measured.

As a consequence of this judgment, it gives rise to whether the Working Time Regulations currently comply with the ECJ’s ruling. The UK may have failed to properly implement the requirements under the Working Time Directive, as it does not require employers to record the actual time worked each day by their workers. The Government will, as a result, have to amend the Working Time Regulations to avoid the risk of claims against them for failure to transpose the directive. This may, in turn, require a change for some employers and companies will have to consider how recording working time can be done effectively. It is unclear at this stage how or when this change may be implemented. However given the implications it could have, employers should start considering this as soon as possible. We will provide further updates as to what this change is likely to entail.

3. Discrimination arising out of disability

In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, the Employment Appeal Tribunal (“EAT”) considered whether an employer had discriminated against an employee on the grounds of his disability where the employer was not aware of the disability at the time of the dismissal but potentially became aware during the course o the appeal.

The Claimant was dismissed by her employer at the end of her probation period, following concerns about her performance. The Claimant appealed against her dismissal and, at the appeal hearing, disclosed that she suffered from depression which affected her behaviour. The appeal was unsuccessful and she subsequently bought a claim for discrimination. The EAT acknowledged that, whilst there were other grounds for dismissal which did not arise from the Claimant’s disability, there was sufficient ‘material influence’ to support a discrimination claim. Therefore, the effects of the Claimant’s depression, which caused the performance issues, should have been considered when deciding the appeal. In addition, the EAT held that the Company had or should reasonably have had knowledge of the disability during the appeal and, therefore, it was insufficient to rely on the fact that they did not have knowledge at the time the initial decision was made to dismiss.

The appeal hearing is an integral part of the decision to dismiss. Employers must take into account any information which comes to light during that appeal process. The presence of other grounds for dismissal will not defeat a disability discrimination claim, in circumstances where the something arising out of a disability had a material influence on the decision to dismiss. Employers should, therefore, tread carefully when new information comes to light at any stage in the process.

4. Injury to feelings awards and uplift for failure to follow ACAS code

The case of Base Childrenswear Ltd v Otshudi, highlights how an injury to feelings award can be made in the middle of the range available even where it relates to only a one-off act of racial harassment. The EAT held that the Vento bands, which are the bands for determining injury to feelings awards, were not prescriptive and any injury to feelings claim is fact sensitive. It is therefore important to consider the seriousness and the harm caused by each act of discrimination and determine the level appropriate based on that harm.

Interestingly, the Employment Tribunal also made an uplift in compensation of 25% in respect of the employer’s failure to follow the ACAS code in respect of a grievance raised by the Claimant following the termination of his employment. The ACAS code does not expressly state that it applies to grievances from former employees and this is the first case which suggests that it does. In light of this case, it would be advisable for all employers to always follow the ACAS code in respect of post-termination grievances, in the same way as they would with any other grievance.