Shared Parental Leave

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

The Government has published its response to theConsultation on the administration of Shared Parental Leave and Pay. The policy is being introduced under Part 6 of the Children and Families Bill, which is currently going through the House of Lords. The Government intends to implement the scheme by 2015.
 
Shared parental leave will allow eligible mothers and their partners to be absent from work to care for a child for a maximum of 52 weeks. Eligible couples could also take up to 39 weeks of shared parental pay. A couple will be able to take the leave together so that the mother will not necessarily return to work after compulsory maternity leave. Alternatively, the mother could return to work and allow her partner to take the balance of leave, or the couple could take the leave in turns.
 
Employees will have to give notice to their employers of their intention to opt into the shared parental system. In doing so, employees will have to provide a non-binding indication of their expected pattern of leave. Additionally, employees will have to provide eight weeks of notice of their intention to take any period of leave. This will include a two week discussion period with their employer. A maximum of three notifications of a period of leave or variations of a period of leave will apply.
 
The Government has also proposed the following:

• A notice to end maternity leave in order to start shared parental leave will be binding when given prior to birth. A mother will have six weeks from birth to revoke this binding notice;
• There will be a cut-off point of 52 weeks from birth for couples to take shared parental leave;
• Each person in a couple will have up to 20 ‘Keeping in Touch Days’ while on shared parental leave; and
• The right to return to the same job will be maintained for employees returning from any period of leave (including maternity leave, paternity leave, adoption leave and shared parental leave) which totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks.

 
Draft regulations detailing how the system will work are to be published before the Bill receives Royal Assent.

Ministers of Religion: Employment Status

Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Could an ordained minister of the Church of England be an employee or a worker?

Possibly, held the EAT, in Sharpe v The Worcester Diocesan Board of Finance & Others.

The Claimant, a former Rector, brought claims of detriment on grounds of whistleblowing and constructive dismissal.  At a pre-hearing review, the employment tribunal held that he was neither an employee nor a worker and therefore they could not hear his claims.  The employment tribunal stated that it was not necessary to imply a contract of employment, and the position lacked the necessary element of personal service.

Overturning the employment tribunal's decision, the EAT reviewed the recent authorities on ecclesiastical offices and employment status, in particular, President of the Methodist Conference v  Preston.  According to the EAT, it was not a question of implying a contract out of necessity.  Various rules and instruments defined the relationship between the minister and the Church.  The question was whether these rules were characteristic of a contract, and if they were, was it one of employment.  The fact that the relationship was governed in part by canon law did not preclude a contractual relationship.  The matter was remitted to a fresh employment tribunal to reconsider the issue.

Whistleblowing Commission Publishes Report

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

In response to a steady flow of scandals and allegations of 'gagging' across the public and private sectors, the Whistleblowing Commission yesterday published its long-awaited report, which carried out an in-depth review of whistleblowing policies and practices. The Commission, set up by the charity Public Concern at Work, has recommended 25 measures to tackle what it describes as a "culture of silence". 

The Commission's report concluded that the legislation currently in place is not working. The key recommendation is that a new code of practice should be introduced to strengthen the whistleblowing framework in the UK and to ensure that whistleblowers are given the confidence to speak out openly without fear of reprisals. The report suggests that the code should be adopted in all UK workplaces, and include guidance for employers, their workers and representatives on how to deal effectively with any whistleblowing issues that may arise in the workplace. Other recommendations include:

• a requirement for Regulators to encourage adoption of the Code by those they regulate,
• the introduction of specific provisions against the blacklisting of whistleblowers,
• strengthening anti-gagging provisions, and
• specialist training for employment tribunals on handling whistleblowing claims. 

The Commission recommended that a failure to follow the code should not, in itself, make a person or organisation liable to proceedings, however courts and tribunals should consider the Code and take into account failure to follow it, when considering allegations of whistleblowing.

The report went on to say that the remedies in the Public Interest Disclosure Act (PIDA), which was introduced 15 years ago to provide a remedy for workers dismissed or victimised for whistleblowing by their employer, should be strengthened, clarified and extended to cover a broader scope of workers, including doctors, social workers, volunteers and interns.

Discrimination - Christian Beliefs v Gay Rights

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

Did Christian hotel owners (the Appellants) Mr & Mrs Bull unlawfully discriminate against civil partners Hall and Preddy by refusing to let them share a double bed on the grounds that they were not a heterosexual married couple?
 
Yes, held the Supreme Court in Bull & Bull v Hall & Preddy, upholding the decision of the Court of Appeal, with a 3-2 majority holding that that the conduct of the Appellants was direct discrimination. The Supreme Court was unanimous that the conduct of the Appellants was unjustified indirect discrimination, the appeal was dismissed, as was a challenge on Human Rights grounds to the Equality Act (Sexual Orientation) Regulations 2007 (now superseded by the Equality Act 2010).
 
The Appellants owned a hotel and maintained a strict policy that only married couples could stay in rooms with double beds.  This policy, which applied equally to unmarried homosexual and heterosexual couples, was founded on the Appellants’ Christian beliefs.  This discriminated both directly and indirectly against couples in a civil partnership.
 
The leading majority speech was from Lady Hale, who held that to deny a double bed to a couple in a civil partnership was not only applying a criterion that the couple were unmarried, but also applying a criterion that the couple’s relationship was not that of one man and one woman (para. 30).  That, held Lady Hale, was indistinguishable from sexual orientation (leaving aside examples of homosexual people being in marriages). Lady Hale gave a hypothetical example of a hotel that limited double beds to married couples over 30, which would result in direct age discrimination against married couples on the grounds of age (para. 31).
 
Lords Kerr and Toulson agreed that there was direct discrimination against the couple.
 
Lords Neuberger and Hughes dissented on the direct discrimination point, Lord Neuberger did not accept that the policy of the Appellants was ‘specific to those of homosexual orientation’ (para. 83), and felt that to find direct discrimination, in an area where the law was clear "(risked) blurring that clarity" (para. 84). Lord Hughes held that the argument for this case being direct discrimination was flawed as it concentrated on the characteristics of the couple, rather than the Appellants’ reasons for treating them as they did. The minority agreed that the indirect discrimination was not justified.
 
The Supreme Court unanimously held that although the principles of Article 9 (1) of the ECHR, protecting manifestations of religious belief were engaged, the impact of the Sexual Orientation Regulations was justifiable as a proportionate means of achieving a legitimate aim, to protect the rights and freedoms of the couple who were entitled to protection of their rights, including rights under domestic law, for protection against discrimination, and the restriction on Article 9 (2) achieved under the Equality Act (Sexual Orientation) Regulations 2007 was a legitimate aim.

Employment Status

Thanks to Sophia Berry of Littleton Chambers for preparing this case summary

Is an individual who provides services to an end user through a limited company protected by the Equality Act 2010?

No, holds the EAT in Halawi v World Duty Free.

The EAT held that a contract personally to do work was required for the Equality Act to apply. On the facts, no contract had been entered into by Ms Halawi with either of the Respondents. Furthermore, an unfettered right of substitution existed, which Ms Halawi had exercised on occasion.

The Respondents' lack of control over Ms Halawi, and the absence of any direct evidence that she was economically dependent on them, also led the EAT to conclude that an employment relationship of subordination had not been established.

The EAT expressed its unease at the fact that Ms Halawi could have been subjected to discrimination and yet had no right to complain to the employment tribunal, but said that the legal tests had to be satisfied.

Dismissal: Telling the Employee

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

If an employee's solicitor informs her of her dismissal a day before the employee reads a dismissal letter, is the effective date of termination the date that the solicitor tells her? 

Yes, held the EAT in Robinson v Fairhill Medical Practice (HHJ Burke QC).

The Claimant did not attend a disciplinary hearing and was communicating with her employer through a solicitor due to illness.  The employer emailed the solicitor on 6th July to inform her that the Claimant was to be summarily dismissed; the solicitor told the employee of the decision on 7th July; the employee read the dismissal letter on 8th July.  At a pre-hearing review, an employment tribunal held that the effective date of termination was 7th July, so the claim for unfair dismissal was struck out as out of time as the claim was presented a day late on 7th October.

The EAT considered the Supreme Court's decision in Gisda Cyf v Barratt, that dismissal is effective when it is communicated to an employee or she has a reasonable opportunity to know of it, and held that communication of dismissal through a third party suffices, so, as the effective date of termination was 7th July, the Claimant's appeal failed.

The EAT upheld the appeal against the decision to dismiss the Claimant's disability discrimination claim as out of time, noting that the fault of the Claimant's adviser ought not to be held against her as a factor on whether it was just and equitable to extend time, and substituted its own decision for that of the employment tribunal.

Employment Law Timeline

Thanks to Adam Turner of Berwin Leighton Pasiner for giving permission to reproduce this.
 

Berwin Leighton Paisner have produced a first-rate timeline of past and forthcoming employment law changes. 

Not much else to say - you can see it here!     

TUPE Exception: Task of Short Term Duration

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

What is the meaning of the "single specific event or task of short term duration" exception to service provision change TUPE transfers?

The EAT has given helpful guidance in Swanbridge Hire v Butler & ors.

Kitson Environment Europe had a contract for insulation and cladding work on five power station boilers on behalf of Shaw Group Ltd.  There was a parting of the ways and Kitsons were replaced by Swanbridge, who finished the work.  Was this a service provision change under the TUPE regulations?

Under Reg 3 (3) (a) (ii) of TUPE 2006 there will not be a service provision change if the client intends that the activities are, following the change, to be carried out in connection with a single specific event or task of short term duration. The employment tribunal held that the insulation contract was not "a single specific event or task of short term duration".  The contract was "lengthy and protracted".  It took 18 months to complete, of which 8 months were in the hands of Swanbridge.  There was therefore a service provision change and TUPE applied.

The EAT allowed an appeal against this finding.  First, the Employment Judge failed to consider the intention of the client at the time of the alleged service provision change.  The exception applies where it is the client's intention to contract for a single specific event or task of short term duration, and the tribunal failed to make findings in this regard.  Secondly, the Employment Judge also erred in deciding whether the 'event' (although the EAT considered it was a 'task') of insulation and cladding of the boilers was short term by reference to how long, cumulatively, both the outgoing and incoming contractor spent on the work.

Finally the EAT expressed a view on opposing views held by Langstaff J in SNR Denton UK v Kirwan and Lady Smith inLiddell's Coaches v Cook as to whether "of short term duration" qualifies "event" as well as "task".  The EAT expressed a preference for Langstaff J's view that "of short term duration" qualifies "event" as well as "task".

Repayment Clause: Unenforceable Penalty?

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

Can a tribunal consider whether a repayment clause is an unlawful penalty?  Yes, holds the EAT in Cleeve Link Ltd v Bryla.

The employer had paid money for fees and air flight to the agency which recruited the employee from Poland. The employment contract stated that such fees and costs could be deducted from the employee's wages, on a sliding scale which reduced over time. The employee was summarily dismissed for gross misconduct 12 weeks into her employment, whilst the clause was still in effect.  The employer set the fees off against outstanding salary, and she brought an unauthorised deductions claim.

The employer argued that the question of whether the deduction clause was enforceable was irrelevant to the statutory scheme under Part II of the Employment Rights Act 1996. On appeal, the EAT (HHJ Hand presiding) disagreed, stating that an employment tribunal's jurisdiction frequently involves the application of common-law contractual principles to situations where the cause of action is statutory.

The EAT also provided guidance as to when a repayment clause may be enforceable. The starting point is to look at the contract when it was entered into. Then the tribunal must decide, objectively, whether the purpose of the clause was to deter or to represent a genuine pre-estimate of loss. This question may involve a comparison between the amount stated in the clause and a realistic figure the employer might recover. If the difference is "extravagant" or "unconscionable", the clause is likely to be unenforceable.

TUPE: ETO Reason

Thanks to James Bickford Smith of Littleton Chambers for preparing this case summary

Is a company administrator able to make dismissals for economic, technical or organisational reasons (ETO) and then sell the business on without passing TUPE liability for them to the purchaser?
 
Yes, if the reason for the dismissals was to enable the company in administration to continue to trade, holds the Court of Appeal in Crystal Palace FC Ltd v Kavanagh and others.
 
The employment tribunal had found that the reason dismissals were made by the football club’s administrator was to continue trading the business, with an ultimate objective of selling it on to a purchaser waiting in the wings. It followed that the dismissals were made for ETO reasons so that liability did not pass to the club’s purchaser. The EAT rejected that approach as contrary to Spaceright Europe Ltd v Baillavoine. It held that the administrator's admitted intention of selling the club on meant that the dismissals could not be made for ETO reasons. That meant that liability passed to the Club’s purchaser.
 
The Court of Appeal finds that the EAT had been wrong to reverse the tribunal. Administrators “will almost always have a transfer of the undertaking as their ultimate objective” but that does not mean that the reason for dismissals made by them will always be to make the business more attractive to a purchaser. They can also be made to allow the business to carrying on trading. On the facts the dismissals at the Club had been made for that reason, so liability did not pass to the purchaser.
 
The case will be of considerable importance to insolvency professionals. It marks a partial retreat from Spaceright and a recognition (notably in the firm concurring judgment of Briggs LJ) of the importance of the wider policy objective of corporate rescue.