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The Range of Reasonable Responses Newsletter: June 2019

Apologies for the lack of a newsletter in May, but I was combining a busy diary with an actual holiday so didn't manage to get anything out. But that at least means that there is a lot to talk about this month. Interesting cases have been coming so thick and fast that some of the updates I've been delivering have involved reading that morning's case on the train while on the way to deliver the course. When I do an employment law update it's nothing if not bang up to date! 

In this issue I report on a number of Court of Appeal cases. There is also a Supreme Court decision in the pipeline on whistleblowing. The question in Royal Mail Group Ltd v Jhuti is whether the motivations of a line manager who procured the dismissal of an employee for making public interest disclosures could be ascribed to the employer even though the manager who made the decision to dismiss made the decision in good faith based on the information provided by the line manager. It's a tricky issue and I'd expect a decision sometime after the summer break. In the meantime - if you're keen - it is worth watching the arguments on Supreme Court Live. Better than the cricket in my view. 

Shared Parental Leave

Is it sex discrimination for men to paid less on shared parental leave than women are paid on maternity leave? The Court of Appeal has given an emphatic 'no' in answer to that question in a decision which does its best to close off every possible avenue for such a claim. 

There are two cases rolled up into one judgement. In Ali v Capita Customer Management Ltd Mr Ali was claiming direct discrimination. His argument was that after the first two weeks of compulsory maternity leave, a women taking maternity leave was in the same position as a man taking shared parental leave - both were simply taking time off to provide childcare. Rather surprisingly the Tribunal swallowed this line and upheld his direct discrimination claim. The Court of Appeal was having none of it and held that a woman who has actually given birth cannot be compared with a man who hasn't.

In truth the Court of Appeal's conclusions are rather more elaborate than they need to be. There is a lengthy discussion about the underlying purpose of maternity leave as set out in the Pregnant Workers Directive and interpreted by the European Court of Justice - all going to show that a woman on maternity leave is not the appropriate comparator. 

A much simpler approach would be to focus on the 'reason why' Mr Ali was treated less favourably - was it because he was a man? The answer is obviously 'no'. If Mr Ali were a woman taking shared parental leave he would be treated in exactly the same way. Shared Parental Leave is a right applying to both men and women. It may be that in most cases a woman would have taken maternity leave first, but not always. A woman may be the partner or spouse of a woman who takes maternity leave and will qualify for shared parental leave on exactly the same basis and with the same limitations as a man would. Sex is not the reason for the difference, so there is no direct discrimination

Indirect discrimination is more difficult. Does a policy of paying more for maternity leave than shared parental leave put men at a particular disadvantage? Here the Court of Appeal gets very technical in the second case they were looking at - Hextall v Chief Constable of Leicestershire Police. They hold that because what is at issue is the employee's terms and conditions of employment, a case of straightforward indirect discrimination cannot be brought. Instead it is an equal pay claim. But terms that are specific to pregnancy and maternity are excluded from an equal pay claim and so the case must fail.

Just to be on the safe side, however, they go on to hold that even if Mr Hextall could have brought an indirect discrimination claim, it would not have succeeded. Men were not placed at a particular disadvantage compared to women - once you excluded women on maternity leave from the pool for comparison who were not in a comparable position. There was no evidence that men taking shared parental leave were any worse off than women taking shared parental leave. 

But in any event (you see how thorough the Court of Appeal is being here) there could be no indirect discrimination because the enhanced pay for maternity leave was a proportionate means of achieving a legitimate aim. 

The Court has done its best not to leave any wriggle room for those trying to challenge an employer who pays the statutory minimum for Shared Parental Leave, but an enhanced rate for Maternity Leave. Unless one or both of these cases goes off to the Supreme Court, I think we can regard the issue as closed. 

Religious Discrimination

In Kuteh v Dartford & Gravesham NHS Trust the Court of Appeal upheld a finding that the dismissal of a nurse for raising matters of religion with patients was fair. She was interviewing patients prior to them having surgery and while she was supposed to ask them about their religious affiliation, it was not intended that she would follow this up with a wider discussion. However there were several complaints from patients that she was pushing her own religious views onto them and making them feel uncomfortable. She assured her employer that she would stop doing this, but after further complaints were made she was dismissed.

What makes the case interesting is that the argument in the Court of Appeal was filmed and you can watch it on YouTube. The barrister for Ms Kuteh receives an absolute kicking from the Court for trying to make the case about freedom of religion when in fact it is about an employee failing to obey a reasonable instruction. Don't be fooled by the polite tone. When Lord Justice Gross says (at about 20 minutes) 'It's quite important in a case like this to get the context right' that is in fact a brutal takedown of the selective way in which counsel for Ms Kuteh was describing the facts of the case. I had to watch it through my fingers.  

Collective bargaining and unlawful inducements

Another Court of Appeal decision -  Kostal UK Ltd v Dunkley - saw the Court overturn a controversial finding from the EAT that an employer had offered unlawful inducements to union members by making a pay offer directly to individuals when negotiations with the union broke down.  An unlawful inducement is an offer made to union members which has the 'prohibited result' that the workers' terms 'will not (or will no longer) be determined by collective agreement'. The EAT had accepted that the result of the company's direct pay offer would be that the employees who accepted it would not have their pay determined by collective bargaining for that particular year.

The Court of Appeal accepted that a literal reading of the statute could lead to this conclusion but held that it was not what Parliament intended.The key point is that the employer was not trying to change the relationship with the trade union - it was not trying to end collective bargaining. The reference to the employee's terms 'no longer' being determined by collective bargaining indicated that what was envisaged was an ongoing situation, rather than something that lasted for just one round of collective bargaining. Given the severe penalty imposed for an unlawful inducement (almost £4,000 per employee for each offer made) it made no sense that it should apply when the employer was merely trying to break the deadlock in a particular round of collective bargaining by making an offer direct to employees. 

This is the right decision I think. It would certainy seem surprising that the employer could be liable for almost half a million pounds in compensation because it offered individual employees a pay rise. This is especially so considering that the employer could have derecognised the union altogether without incurring any penalty at all. Nevertheless, any employer looking at changing the scope of collective bargaining or changing its relationship with a union needs to take careful legal advice. For large employers in particular, the cost of getting this wrong can be enormous. 

Perceived disability

In Chief Constable of Norfolk v Coffey the Court of Appeal has ruled that it was direct discrimination to refuse to engage a police constable who suffered from minor hearing loss - even though it was accepted that she was not disabled. This is a case of discrimination by perception and hangs on the fact that direct discrimination occurs when someone is treated less favourably because of 'a' protected characteristic (that's s.13 of the Equality Act). There is no need to actually have the characteristic provided the employer thinks you do and acts on that basis. 

In this case the employer thought that Ms Coffey - who was working successfully as a police officer in Wiltshire- would be restricted in her duties and that this could be a problem in the future. Essentially this means that the employer perceived that she had a progressive condition that might in the future have a significant impact on her. This was direct discrimination because it was based on a stereotypical view of what someone with hearing loss could and could not do rather than on a genuine assessment of her abilities. 

This is a really meaty decision about how disability discrimination works and is worth a read. It's one that I will be talking about for the rest of the year in every employment law update I do! 

New regime - new employment law? 

We are going to have a new Prime Minister within weeks - what will that mean for the future direction of employment law? Whatever your views on Theresa May. she was committed (or at least open) to a number of important employment law reforms. The Taylor Review of Modern Working Practices led to some wide-ranging consultations focussing on employment status and the minimum wage, with a particular emphasis on those working in the gig economy. Will the new Prime Minister have the time or inclination to take any of these forward? I think its unlikely.

There are some proposals, however that are already in the pipeline and four in particular are 'locked in' - in that the Regulations have already been made. They aren't exactly world-shattering but they are:
  • Regulations extending the right to a written statement of terms and conditions to all workers (not just employees) from day one of their employment. This abolishes both the 8 week period employers have to give the statement - and the one month qualifying period for entitlement to one.
  • An increase in the reference period for working out an average week's pay for the purposes of calculating entitlement to paid annual leave from 12 weeks to 52 weeks.  
  • The abolition of the Swedish Derogation in the Agency Workers Regulations. This is the loophole that allows agencies to avoid having to match the pay of directly employed staff for agency workers if they have a contract of employment with the agency and are entitled to a minimum level of pay between assignments.
  • A reduction in the threshold for employees triggering the obligation on an employer to start talks about introducing arrangements for information and consultation from 10 per cent of the workforce to just 2 per cent. I have heard Matthew Taylor says that this is the most significant reform proposed by his review. I think he's wrong about that, but I suppose we will find out next year. 
These changes all come into effect on 6 April 2020. There is a very nerdy reason why the Regulations making these changes have already been introduced. Each of them touches on an area governed by EU law and so the plan was to get the changes through Parliament before Brexit happened and complicated the process for amending Regulations. As it turns out, the Government had plenty of time to spare.

For public sector folk the big issue at the moment is the prospect of the Government introducing a £95K cap on public sector exit payments. There is a new consultation currently taking place on draft Regulations. I have written something about them for the West Midlands Local Government Association and you can read that here. TL:DR (as the young people say) - the Regulations are fatally flawed and need a re-think. Surely Government has more to do with its time than proceed with them? I certainly hope so.  

Parish Notices

Earlier this month I delivered a webinar for XpertHR on managing poor performance. We managed to get through a load of questions, but since there were about 2,000 people tuning in you can imagine that plenty were left unanswered. When I deliver a course on this sort of thing in-house we generally limit the numbers to about 20 to make sure that everyone has a chance to participate fully. The other advantage of an in-house course is that you are among colleagues and don't have to worry about sharing your problems with people outside the organisation.  Still the webinars are fun to do and you can view them on demand here.

Don't forget you can get a wider idea of the sort of thing I do by visiting my website:

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