Maternity Leave and Surrogacy Arrangements

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary

Is an intended mother in a surrogacy arrangement entitled to maternity leave?

Yes, according to the opinion of Advocate-General Kokott in Case C‑167/12 - CD v ST.
 
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 couple were granted a parental order. 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.
 
Following a preliminary reference by the Employment Judge, the Advocate-General has suggested the CJEU should find that an intended mother has the right to receive maternity leave under the Pregnant Workers Directive 92/85/EC, even when she does not breastfeed the child. Compulsory leave of at least two weeks must be granted to both mothers. However, the concept of surrogacy cannot result in a doubling of the leave entitlement under the Directive. Four weeks of mandatory leave must be deducted from the 14 week minimum. The remaining 10 weeks should be divided between the women taking into account the legally protected interests of the Directive.

The CJEU normally, but not always, follows the opinion of the Advocate-General.

Remedies and Causation of Loss

Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary

Where a Respondent has failed to make a reasonable adjustment, can a Claimant’s subsequent resignation break the chain of causation in respect of future loss of earnings?

In certain circumstances, yes it can, says the EAT in in Osei-Adjei v RM Education.

In this case the employment tribunal found that the Claimant suffered an act of disability discrimination by reason of the Respondent's failure to make a reasonable adjustment. The Claimant suffered a psychological injury (depression) that was triggered by this failure. However, at the time of the Claimant's resignation his health had improved, he had been pronounced medically fit to return to work, his job was open to him, and all reasonable adjustments had been made or would be made to enable him to resume his employment. The Respondent's failure to make a reasonable adjustment did not cause the Claimant's resignation. In those circumstances the employment tribunal was entitled to find that the resignation had broken the chain of causation in respect of any future loss of earnings.

In reference to a cross-appeal by the Respondent, the EAT held that where an employee suffers injury for which their employer is only partly to blame, compensation for that injury should be assessed by reference to the relative contribution of the employer in question. On the facts of this case there were additional factors causing the Claimant's depression and the Respondent's responsibility for the injury was assessed as being 40%.

'Curing' indirect discrimination through internal appeal

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can an act of indirect discrimination be 'cured' by an internal appeal? Yes, holds the EAT in Little v Richmond Pharmacology Ltd on the particular facts of that case.

The Claimant's initial request for part-time working on return from maternity leave was declined but, on appeal, she was offered part-time working on a trial period as she had requested. The Claimant had, in the meantime, resigned and pursued her appeal against the refusal of flexible working.

The Claimant brought complaints out of time for constructive unfair dismissal and indirect discrimination for a detriment arising from the refusal of flexible working. Time was only extended for the indirect discrimination complaint.

An employment tribunal rejected the complaint of indirect sex discrimination as the successful appeal had 'cured' the initial detriment. The EAT upheld the employment tribunal's decision, noting that the appeal had concluded before the Claimant's projected return to work, and she was not put at a personal disadvantage. Drawing on the experience of its lay members, the EAT noted that the refusal of part-time working was, in this case, conditional on the right of appeal.

The EAT noted that a dismissal as a detriment arising from indirect discrimination was not relied upon by the Claimant, so the principle established may have practical application limited to similar facts.

CJEU - Maternity and Paternity Leave

Thanks to John Cook of SAS Daniels LLP for preparing this case summary

Can a member state make provision to exclude an employed father of a child from entitlement to maternity leave and maternity benefit where the mother is not employed?

Yes, says the CJEU in Montull v INSS.

The Spanish national court referred a question to the European Court to ascertain whether Mr Montull was entitled to maternity leave and to receive maternity benefit in respect of the birth of his son.  Spanish law provides for the suspension of the mother's contract of employment for a period of 16 weeks which includes a compulsory period of maternity leave of 6 weeks.  The mother can return to work after this period and choose to allocate the remaining 10 weeks' leave to the father.  Where both parents work the father is entitled to the leave.

In this case the father was employed but the mother was not employed.  On the basis that the mother was not employed she did not enjoy any primary right to maternity leave and, therefore, there was no right to leave that could be transferred to the father of the child.

Shambolic redundancy scoring not enough for age discrimination

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

Where mistakes have been made in discharging the reverse burden of proof in discrimination cases, must an employer provide a further explanation beyond that?

No, states the EAT in Osoba v Hertfordshire Police.

This was an age discrimination claim. Whilst conducting a staff reorganisation, the Respondent's officer created a points-based matrix to determine which employees would be dismissed. The Claimant contended that the officer deliberately manipulated the matrix to ensure that he, by reason of his age, would be dismissed.

The Tribunal found that the Respondent's handling of this matter was "at its best inconsistent, shambolic in places and lacking in competence". However, their officer's actions (although poorly executed) were not discriminatory and the Tribunal accepted her explanations as an honest attempt to be fair.

The Claimant appealed on the basis that the Tribunal had failed to examine what explanations there were for the incompetence of the Respondent's officer, and that as a result the Respondent had failed to discharge the reverse burden of proof.

The appeal failed. The EAT said it would be wrong for a Respondent to have to give a "yet further possible dissembling explanation" in order to meet the case; there simply may be cases where there is nothing more to say other than "I got it wrong and I take responsibility for that".

Redundancy: Suitable Alternative Employment

Thanks to Vanessa James of SA Law for preparing this case summary

The Court of Appeal in the case of Devon Primary Care Trust v Redman addressed the test for whether an employee was being reasonable in refusing what would appear to be a suitable alternative to redundancy and, in doing so, whether they forfeited the right to redundancy pay. 

It stated the test is not to "import" the band of reasonable responses test applied in unfair dismissal cases, but is instead consider "whether this particular employee in this particular situation acted reasonably in refusing the offer of employment". 

Although this case reinforced a test that has been around a while, it will be of concern to employers where there is an incentive to redundancy over redeployment, such as NHS, local government, or where there is long service. 

This decision seems to support the trend for employees having fairly subjective grounds for refusing alternative employment which will make restructures (particularly in the NHS and local government) more expensive and challenging than perhaps first thought.

Update on Tribunal Fees

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary

Some more information on employment tribunal fees.

1. The judicial review challenge to the legality of tribunal fees brought by Unison has now been listed in the High Court for 22nd and 23rd October 2013, and the parallel challenge in the Court of Session brought by Fox & Partners has a hearing next week, on 26th September.  The Ministry of Justice has undertaken to refund any tribunal fees paid if the fee scheme is ultimately held to be unlawful.

2. The new fee remission structure is going to come into force on 7th October 2013, according to this SI.

3. The EAT can hear an urgent appeal without a fee being paid or a fee remission granted. In Dozie v Addison Lee Plc they concluded that an appeal is properly instituted at the point it is presented, regardless of the fee position (paragraph 33). Normally the EAT will take no action until the fee is paid or remission granted. If a required fee is not paid, the appeal will be struck out under rule 17A. But, in urgent cases, the EAT has jurisdiction to hear the appeal, leaving the fee to be paid (or the fee remission granted) later.

Some Little Things...

Here are a few little things from last week, none of which warrant a bulletin in their own right...

1. The House of Commons held a debate (see from column 1246) on employment rights, covering many of the recent changes to employment law.

2. The Disclosure & Barring Service has produced a Guide for Employers on 'filtering' - being convictions/cautions which no longer appear on criminal record checks because of changes in legislation.

3. The Ministry of Justice has published its quarterly statistics, covering the period April - June 2013, for employment tribunals.  Laurie Anstis of Boyes Turner LLP has written agood summary.

Costs

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Despite no express finding of dishonesty, was it perverse to make an award of costs because a Claimant had behaved unreasonably in making a large number of unsustained allegations of discrimination?

No, said the EAT in Ghosh v Nokia Siemens.

The Claimant brought claims of unfair dismissal and discrimination in the employment tribunal. The discrimination claims were dismissed and, although she succeeded in her unfair dismissal claim, she was awarded no compensation owing to a Polkey reduction.

The employment tribunal found that the pursuit of serious allegations of race discrimination, primarily against the Claimant's line manager, constituted unreasonable conduct and awarded costs against her. There was no express finding that the Claimant was dishonest; although the EAT were of the view that the employment tribunal may have doubted the Claimant's honesty.

The EAT held that despite no express finding of dishonesty, the employment tribunal's finding that the Claimant had behaved unreasonably was not one that was perverse.

TUPE: Service Provision Changeover

Thanks to Joanna Cowie of SA Law for preparing this case summary

Can a single employee be an 'organised grouping' whose 'principal purpose' is the activity to transfer under a TUPE service provision changeover?

Yes, holds the EAT in Rynda v Rhijnsburger.

The issue before the employment tribunal had been whether the Claimant had sufficient continuity of service to claim unfair dismissal.  That depended upon her establishing an earlier TUPE transfer.  Finding for the Claimant, the tribunal decided that the conditions in regulation 3 of TUPE 2006 had been satisfied and the EAT agreed.

Following a series of transfers, the Claimant's employment transferred to Rynda.  Considering regulation 3, the tribunal held that the Claimant had been assigned to an organised grouping of employees (albeit that she was the sole employee in that grouping), that her 'principal purpose' was to carry out the activities to be transferred 'immediately before the transfer' and that it was not a temporary arrangement.  Citing Seawell Ltd v Ceva Freight UK Ltd and Eddie Stobart Ltd v Moreman, the EAT agreed with the tribunal that the Claimant's assignment to this activity had been a conscious decision of her employer and was not a matter of  "happenstance".

Following the government's recent decision not to remove the service provision change provisions, this case provides clarity.

Third Party Harassment Law repealed

Under the Equality Act 2010 an employer can be vicariously liable for harassment by a third party (such as a customer or a contractor) if (a) that third party had harassed an employee on at least two previous occasions; and (b) the employer had failed to take reasonably practicable steps to stop the harassment.

This is now being repealed, with effect from 1st October 2013, under the newly made The Enterprise and Regulatory Reform Act 2013 (Commencement No. 3, Transitional Provisions and Savings) Order 2013.  So, no more liability for third-party harassment - the position is now back to that set out by the House of Lords in Pearce v Mayfield School (2003) (see bottom paragraph of summary)