We are pleased to provide you with the Herrington Carmichael employment law update for March 2020.

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

1. Coronavirus – Considerations for Employers

The main topic of news in recent weeks is the outbreak and spread of COVID-19 (Coronavirus). Although there has so far been a low number of confirmed cases in the UK, we are getting increasing questions from employers about what they should do.

Employers have duties when it comes to their staff which should be considered. This includes the general duty to ensure the health, welfare and safety of all staff at the workplace. Employers should also be mindful of duties owed to special groups of staff. For example, those with disabilities or pre-existing health conditions and the duty to make reasonable adjustments for them.

To address concerns more generally, employers should consider putting in place in precautionary measures. These could include:

• Keeping updated with Government advice and communicating this to staff. • Ensuring staff, who can, have the ability to work remotely or flexibly. • Reviewing and reminding staff of your policies in regards to their actions and obligations • Encourage staff to maintain good hygiene by providing hand sanitiser, anti-bacterial wipes and encouraging frequent hand-washing • Putting in place a management plan for the continuity of business in the event of a widespread outbreak.

The Government is implementing emergency legislation so that employees receive Statutory Sick Pay from their first day of absence, rather than needing to wait the usual three days. This is being implemented in order to alleviate financial burden which employees may face, in the event they need to take time off. The exact parameters of who this will apply to are not yet known and so it is important for employers to keep up to date on the most recent position in relation to this evolving situation.

2. Employment Tribunal Compensation Limits

The annual increase to the maximum amount of compensation payable in Employment Tribunals has been announced. With effect from 6th April 2020 the maximum compensatory award following a finding of unfair dismissal will increase from the current £86,444 to £88,519 (or one year’s gross pay, whichever is lower). The level of a week’s pay for calculation of statutory redundancy pay and the basic award will also increase from £525 to £538.

3. Discrimination in Shared Parental Leave and Maternity Pay

An application to appeal the decision in the case of Hextall v Chief Constable of Leicestershire Police has been refused. This means that the earlier decision which we reported on in our June 2019 update stands. It has been confirmed that an employer may offer men a statutory rate of Shared Parental Leave (“SPL”) whilst offering women an enhanced rate of Maternity Pay without it being discriminatory.

In Hextall, following the birth of his second child, the Claimant took a period of SPL. During this time, he was paid at a statutory rate of SPL but his employer would have paid a female on maternity leave her full salary during the period of leave. The Court ruled that his claim for indirect discrimination would fail as men on SPL should be compared to women on SPL and not women on maternity leave and therefore, a women on SPL would be paid the same as a man. Similarly, any Equal Pay claim could not succeed as the Equality Act permits more favourable treatment of women in issues connected to pregnancy and childbirth.

The refusal of the application to appeal this decision confirms that employers should be able to offer an enhanced rate of maternity pay alongside a statutory rate of SPL without fear of a discrimination or equal pay claim arising.

4. Reasonable Adjustments a ‘one-off act’ is not a Provision, Criterion or Practice (“PCP”)

The law imposes a duty on employers of disabled staff to make reasonable adjustments for such staff if they are put at substantial disadvantage compared to a non-disabled person by the implementation of a PCP.

The Court of Appeal has recently held that a ‘one-off act’ will not always qualify as a PCP in the case of Charles Ishola v Transport for London. In this case, the Claimant claimed that his employer put him at a substantial disadvantage by implementing a PCP of requiring him to work without proper investigation of grievances he had raised. Before this, the Claimant had raised several other grievances which had been investigated and dismissed. The Court dismissed the Claimant’s argument stating that a single one-off act could not amount to a PCP as there was no evidence that it was the employer’s practice not to investigate grievances or that they would fail to investigate in future.

This confirms that a one-off act by an employer will not necessarily amount to a PCP. However, employers should be aware that this does not eliminate the need to investigate and resolve grievances raised by employees – if the employer in this case was found to have consistently failed to investigate it may well have been considered a PCP.