Note from the Editor
With the introduction next year of the shared parental leave provisions,
some interesting statistics have been released by an organisation known
as the Institute of Leadership & Management (ILM). According to the ILM,
one in four new fathers does not take any paternity leave. The survey also
found that fewer than one in ten took more than two weeks of leave. The
figures suggest that, despite the best efforts of Nick Clegg and his wife to
encourage fathers to get more involved with childcare, the shared parental
leave provisions may turn out to be a damp squib unless there is a radical
change in attitude.
Following on from the news that there has been a 79% drop in
employment tribunal applications in the six months since fees were
introduced in July last year, the government has announced that it will
consider lowering employment tribunal fees as part of a review of the
regime. Tribunal fees were introduced in July. Fees start at around £160,
and increase to between £230 and £950 for further hearings. According to
government statistics the number of claims fell by 79% to 9,801 in the final
quarter of last year compared with the same period in 2012, and dropped
75% on the third quarter of 2013. As we previously reported, in February
the High Court dismissed a challenge by the trade union Unison to the
introduction of employment tribunal fees.
Those of you who attended the briefing in April on “Recruitment Issues”
will recall that there was an interesting discussion at the end on the
conflict that can sometimes arise between the requirement to check on a
job applicant’s right to work in the UK and the duty not to discriminate
against people who do not have an automatic right to work in the UK.
Coincidentally, the Government has recently updated its guide for
employers. Whilst the guide does not provide a solution to this conflict, it
does contain useful advice for employers. This Edition’s topic looks at the
Code of Practice that has come into force.
The last in this series of briefings will take place on 24th June at 8.30 a.m.
when Liz Buchan and Asha Kumar will be looking at the Top Ten TUPE
questions. The annual seminar will be on 15th October, so please do save
Case Update Surrogacy and Maternity Leave In the cases of CD v ST and Z v A the European Court of Justice had to decide whether two women who received their children through surrogacy arrangements had the right to maternity leave under the Pregnant Workers Directive. The Directive defines three categories of worker who must be entitled to a minimum period of maternity leave under the national law of EU member states: Pregnant workers. Workers who have recently given birth. Workers who are breastfeeding. The Directive does not contain specific rules on maternity leave concerning women who have children under surrogacy arrangements. Member states are required to protect employees from discrimination on grounds of, among other things, sex, pregnancy and maternity, and disability. In CD v ST, C became a mother under a surrogacy arrangement and began caring for and breastfeeding the baby within an hour of birth. C was not allowed to take maternity or adoption leave by her employer. C issued tribunal proceedings, arguing that she had been subjected to a detriment in respect of her maternity leave request and had been discriminated against because of sex and pregnancy or maternity. In Z v A, Z was physically unable to support a pregnancy but commissioned her genetic pregnancy through a surrogate. Z wished to take paid leave when her genetic child was born, but was offered only unpaid leave. Z brought sex and disability discrimination claims before the Irish equality tribunal. In both cases, the tribunal made a reference to the ECJ. The ECJ held that “commissioning mothers“ under surrogacy arrangements do not have the right to maternity leave under the Directive and an employer’s refusal of this leave did not amount to sex or disability discrimination under EU law. The Directive states that the purpose of maternity leave is to protect the health of the child’s mother in the vulnerable situation arising from her pregnancy. Whilst maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after pregnancy and childbirth. With regard to sex, pregnancy and maternity discrimination, as a commissioning father who has had a baby through a surrogacy arrangement is treated in the same way as a commissioning mother in comparable circumstances there is no direct sex discrimination. The ECJ also held that it was not disability discrimination for an employer to refuse to provide paid leave equivalent to maternity or adoption leave to a female employee who was unable to bear a child and who, as a result, had entered into a surrogacy arrangement. Under EU case law, the concept of disability concerns an impairment that may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. Z’s condition was not, therefore, a disability. Comment While the decision seems rather harsh and indeed, contrary to the spirit of the EU Directive, the essence of the decision is that a woman who becomes a surrogate mother cannot be subjected to less favourable treatment related to her pregnancy, simply because she has not been pregnant. In the UK, adoptive parents are given adoptive leave so that they can bond with their child, and it may well be the case that if surrogacy becomes more common, then there will be pressure to give surrogate parents similar rights to adopting parents.
Disability Discrimination A novel defence to the charge of looking at pornographic material on the internet at work was proffered by the claimant in the case of Hickford v Commissioners for HMRC. H was dismissed for gross misconduct after accessing inappropriate sexually explicit websites whilst at work. H admitted that he had been looking at the sites, but claimed that he had suffered from depression for 20 years and that he was currently suffering from a mental impairment which led to “flights of escapism” which led him to looking at the internet sites. H brought a disability discrimination claim, which was not, however, supported by medical evidence. At a Pre‑Hearing Review he declined an offer to adjourn to obtain further medical evidence. H was ordered to provide further details of his case of disability. H did produce a witness statement on the impact of his alleged disability in his normal day‑to‑day activities, but the EAT described this as merely his “anecdotal account or retrospective diagnosis”. Comment It was an imaginative defence put forward by H but, ultimately, he suffered the same fate that befalls nearly everyone who looks at pornography on their work computer – he was sacked for gross misconduct. Discrimination – Immigration Status In the cases of Onu V Akiwu and Taiwo V Olaigbe the Court of Appeal had to consider whether two migrant domestic workers who had been mistreated by their employers had been racially discriminated against. In both cases, a tribunal had found that the reason they had been mistreated was because of their status as migrant domestic workers and their consequent vulnerability due to their uncertain immigration status. However, as discrimination on grounds of immigration status is not outlawed in the Equality Act 2010, the question was then whether the findings that their mistreatment was “because of“ their immigration status could be equated with their nationality – which is a ground of discrimination in the Equality Act. O, a Nigerian migrant domestic worker, was not paid the national minimum wage, was not provided with appropriate accommodation and was repeatedly told that if she tried to run away she would be arrested and sent to prison because of immigration issues. T, also a Nigerian migrant domestic worker, did not receive the national minimum wage and was subjected to various acts of mistreatment, including: verbal and physical abuse, being denied rest breaks, having to work very long hours and living in poor conditions. The Court of Appeal, upholding the decision of the EAT held that, whilst the various acts of mistreatment complained of were not inherently based on immigration status, it was clear from the findings of the tribunal in both cases that O and Tʹs employers had been influenced by their immigration status in mistreating them. The relevance of their immigration status was not that it was the primary reason for mistreating them; rather, that they were vulnerable because of their uncertain immigration status and this gave their employers an opportunity to mistreat them for other reasons. Although their immigration status was intimately associated with their non‑British nationality this was to say no more than that only people with non‑British nationality were migrant domestic workers. The Court also agreed with the EAT that there was no basis for an indirect discrimination claim. Indirect discrimination requires showing that applying an apparently neutral provision, criteria or practice (PCP) to everyone, particularly disadvantaged people sharing a protected characteristic. The mistreatment of migrant domestic workers is neither a provision nor a requirement nor a practice, however widely those terms are construed.
Comment Because of the treatment of the two claimants in this case, it may seem to be a harsh decision, but, unfortunately, the simple fact was that they could not bring themselves within the provisions of the Equality Act. Gross Misconduct In Robert Bates Wrekin Landscapes Ltd v Knight, K worked as a gardener for RBW. His contract of employment contained a long list of situations in which his employment could be ended without notice, one of which was theft of the employerʹs or customerʹs property, and another was breach of security rules including the removal of property without a ”property pass”. K performed work for his employer at a Ministry of Defence site. All of the company’s employees on this site were aware of a site rule book which contained a rule prohibiting removal of any property without a “property pass”. RBW received a tip‑off that K had removed property from the site and found a bag of bolts on the dashboard of his van. K denied that he had stolen the bolts and explained that he had forgotten to hand them in after finding them on site. RBW rejected this explanation and, after an investigation, dismissed him without notice for theft and removing goods from the customer’s site. Both of these reasons were express terms allowing termination without notice in K’s employment contract. K brought both wrongful and unfair dismissal claims against his employer. The EAT held that RBW was not entitled to rely on its contractual termination provisions to dismiss K without notice. Although K had breached those requirements, the issue was whether that breach was deliberate and so serious as to justify immediate dismissal, and the finding was that K had not acted deliberately and his inadvertent breach was not sufficient to be a repudiatory breach. The EAT emphasised the general principle that a summary dismissal is not justified unless there has been gross misconduct or gross negligence. Comment Most contracts of employment contain a non‑exhaustive list of acts that will be considered to be gross misconduct justifying summary termination. The message from this case is that, even if an employee does commit one of the prohibited acts this will not prevent a tribunal from making a finding of unfair dismissal if it considers that the act was, nevertheless, not serious enough to warrant summary termination. This Edition’s Topic – Immigration Checks On 8 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 was laid before Parliament. This will bring into force statutory codes of practice for employers on preventing illegal working and avoiding unlawful discrimination while preventing illegal working. It took effect from 16 May 2014. The Code, which incorporates comments from the Equality and Human Rights Commission, replaces the previous 2008 guidance. It has been issued in light of the introduction on 14 May of the Immigration Act 2014 and the subsequent changes to the civil penalty regime for illegally employing immigrant workers. The maximum civil penalty which may be payable under the Immigration, Asylum and Nationality Act 2006 where an employer is found to have employed adults who are subject to immigration control but do not have the right to work in the UK has been increased from £10,000 to £20,000 for those contraventions that did not occur solely before the Act came into force. The Code advises employers, as a matter of good employment practice, to have “clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants“. It recommends that employers carry out statutory immigration checks for all prospective workers, not just for those who are from an ethnic minority or have a foreign accent. The Code is supported by separate government guidance and a Code of practice on the civil penalty scheme for employers. The Code has statutory force and may be taken into account by courts and tribunals. All employers have a duty to prevent illegal working, regardless of whether they are sponsors. Right to work checks have to be carried out on all employees, even those who the document checker believes to be British. Simply assuming that someone is British and that, therefore, they should not be subject to right to work checks is potentially discriminatory treatment. Once the initial checks have been undertaken questions of, for example, nationality or length of residence in the UK should not be revisited unless the employee’s stay in the UK is time bound or they are subject to restrictions in terms of the number of hours they can work. The Code states that employers should: Check all prospective workers’ right to work in the UK and take copies of the relevant documents. Where an individual has a limited right to remain in the UK, this exercise should be repeated. Doing so will provide the employer with a “statutory excuse” if any worker is subsequently found not to have the right to work in the UK Have a clear procedure in respect of its recruitment and selection of workers which should be applied consistently and fairly to all applicants Monitor diversity of its applicants (including disability, gender and national/ethnic origin) Not treat an individual less favourably if he or she has a time limited right to work in the UK. Once the individual has demonstrated a time‑limited and an ongoing right to work in the UK he or she should not be treated less favourably in terms of employment, opportunities for training, promotion, benefits, facilities or services, or by being dismissed or subjected to any detriment Not question a job applicant’s or worker’s immigration status unless it is necessary to determine whether his/her status imposes limitations on the number of hours he or she may work each week, the type of work he or she may carry out, or the length of time for which he or she is permitted to work Not make assumptions based on an individual’s appearance, accent or if an individual is unable to produce documents to demonstrate a right to work in the UK. The employer should instead provide him/her with a reasonable opportunity to evidence a right to work whilst keeping his/her job open as long as possible. Summary Employers who have had difficulty reconciling their obligation to ensure that prospective employees have the right to work in the UK with their duty not to discriminate against job applicants on grounds of their race or nationality will find some much needed guidance in the Code. On the other hand, the Code does not provide a complete solution for employers and there is no doubt that the requirements of the Code will impose an additional administrative burden.