You are here: Home Community Q4 2008 Legal Update
Flexible WorkingIn 2007 the Government commissioned an independent review of the current right to request flexible working. The review found that in practice many employers made the right to request flexible working available to all employees and not just parents and carers. However, the review found that limiting statutory rights to parents and carers helped employers identify priorities in terms of who should be permitted such arrangements. Following the review the government announced that it would extend the right to request flexible working to parents of children under 16. However, there have been rumours in the press that the extension of the right to flexible working will be delayed indefinitely. This has not been confirmed by the Government and the position remains unclear as yet. The Government is proposing a procedural change whereby the obligation for employers to send a formal letter when they approve an employees request to change their working pattern is removed. However, employers will remain under an obligation to provide employees with a statement of their terms and conditions under Section 1 of the Employment Rights Act 1996. Therefore, this change is unlikely to have any practical effect. Changes to Benefits During Additional Maternity LeaveThe Sex Discrimination Act 1976 has been amended to make it clear that depriving a woman of terms and conditions relating to remuneration during maternity leave is not sex discrimination. However an employee whose expected of childbirth is after October 2008 is entitled, during maternity leave, to maternity related pay, pay in respect of periods when she is not on maternity leave and bonus during compulsory maternity leave. Changes have also been made to the Maternity and Parental Leave Regulations 1999 to reflect the extension of benefits: women have the right to return from additional maternity leave (AML) with the same seniority and pension rights; and they are protected from detriment and unfair dismissal. Therefore, the only real distinction remaining between ordinary maternity leave (OML) and AML is that employees returning from OML have the right to return to the same job and those returning from AML have the right to return to the same job or, if that is not reasonably practicable, to a suitable alternative. One of the major difficulties these changes have created is in relation to childcare vouchers. Employees usually agree to a salary sacrifice arrangement to obtain these vouchers. Due to the definition of benefits childcare vouchers must now be provided by employers during both OML and AML. This has the unattractive consequence of requiring the employer to provide childcare vouchers during periods of maternity leave even where the employee has exhausted any entitlement she has to contractual or statutory maternity pay. This may have the unfortunate consequence of causing employers to remove these benefits. Nicola Brewer, Chief Executive of the Equality and Human Rights Commission called for careful consideration of maternity and paternity rights, stating that increases to maternity leave would make employers think twice about hiring or promoting women. This has raised a wider debate about how the law reinforces stereotypical childcare responsibilities and the desirability (or not) of moving to more continental arrangements where leave can be spilt between mothers and fathers. Prowess Policy CentreThe first national Women’s Prowess Policy Centre has been launched by the Government. The centre has received more than £500,000 of funding from the Department for Business, Enterprise and Regulatory Reform. The aim of the centre is to increase the number of women in business by making and disseminating the economic case for the development of women’s enterprise.The Right to Time Off for Disruption to Arrangements for the Care of a DependantRoyal Bank of Scotland Plc v HarrisonThis case is one of the few cases dealing with time off for the care of dependants to reach the Employment Appeals Tribunal (EAT). Mrs Harrison was informed by her child minder on 8 December that she would not be able to look after her children on 22 December. Mrs Harrison attempted to arrange alternative cover but was unable to do so. On 13 December Mrs Harrison told her employer that she would need to take 22 December off. Her employer did not indicate until 20 December that this would not be possible. Mrs Harrison took off 22 December and received a written warning for having done so. The EAT held that the disruption in care arrangements for an employee to fall within the rights to time off under the Employment Rights Act only need be unexpected not sudden. The EAT recognised that if the employee had been informed in July then it would have been very unlikely that she would fall within the protection of this section but it remains unclear where the line should be drawn. However, this case shows that the right to take emergency time off is wider than previously thought.Equal PayThere have been a considerable number of equal pay claims over the past few months. We have selected two cases which are important reminders of the scope of the right to equal pay: Hartlepool EC v DolphinThis case is a timely reminder that equal pay includes bonuses and is not limited to base salary. In this case, male employees were paid productivity bonuses which were held to be a sham: the bonuses could be paid to some employees for merely completing the job they were paid to do in any event. Therefore, it was difficult to see how the bonuses could improve productivity. The Tribunal held that the bonuses had a disproportionate impact on women because the bonuses were paid to groups of workers who were predominantly male whereas the groups of workers which were predominantly female did not receive bonuses. Sodexo v GutridgeA warning that equal pay claims transfer under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) was given by the EAT who upheld the decision that employees were entitled to bring an equal pay claim five years after a transfer took place under TUPE 1981. As TUPE 2006 has made it clear that it applies to outsourcings, insourcings and wider service provision changes it is important to be alert to the possibility that equal pay liabilities may transfer. Whistle-blowingHibbins v Hesters Way Neighbourhood ProjectThe EAT confirmed that the protection for whistleblowers under the Employment Rights Act 1996 (ERA) is not limited to cases where the disclosure relates to a wrong doing or failure by the whistleblower’s employer. In this case, the employee made a protected disclosure to the police about one of her students being a suspect in a rape case. The employee alleged that she had been subject to detrimental treatment because of this disclosure and the question arose whether this disclosure was protected under the ERA’s whistle blowing provisions. The EAT confirmed that the legislation extends its protection to employees who make a disclosure about the wrongdoing of any legal person. This does not mark a fundamental change in the law as it had always been expected that the legislation provided protection in such circumstances. It is now clear that the ERA will protect Employee A of Company B, where A discloses the wrong doing of Company C.
Following the review the government announced that it would extend the right to request flexible working to parents of children under 16. However, there have been rumours in the press that the extension of the right to flexible working will be delayed indefinitely. This has not been confirmed by the Government and the position remains unclear as yet.
The Government is proposing a procedural change whereby the obligation for employers to send a formal letter when they approve an employees request to change their working pattern is removed. However, employers will remain under an obligation to provide employees with a statement of their terms and conditions under Section 1 of the Employment Rights Act 1996. Therefore, this change is unlikely to have any practical effect.
Changes have also been made to the Maternity and Parental Leave Regulations 1999 to reflect the extension of benefits: women have the right to return from additional maternity leave (AML) with the same seniority and pension rights; and they are protected from detriment and unfair dismissal. Therefore, the only real distinction remaining between ordinary maternity leave (OML) and AML is that employees returning from OML have the right to return to the same job and those returning from AML have the right to return to the same job or, if that is not reasonably practicable, to a suitable alternative.
One of the major difficulties these changes have created is in relation to childcare vouchers. Employees usually agree to a salary sacrifice arrangement to obtain these vouchers. Due to the definition of benefits childcare vouchers must now be provided by employers during both OML and AML. This has the unattractive consequence of requiring the employer to provide childcare vouchers during periods of maternity leave even where the employee has exhausted any entitlement she has to contractual or statutory maternity pay. This may have the unfortunate consequence of causing employers to remove these benefits.
Nicola Brewer, Chief Executive of the Equality and Human Rights Commission called for careful consideration of maternity and paternity rights, stating that increases to maternity leave would make employers think twice about hiring or promoting women. This has raised a wider debate about how the law reinforces stereotypical childcare responsibilities and the desirability (or not) of moving to more continental arrangements where leave can be spilt between mothers and fathers.
Prowess Policy CentreThe first national Women’s Prowess Policy Centre has been launched by the Government. The centre has received more than £500,000 of funding from the Department for Business, Enterprise and Regulatory Reform. The aim of the centre is to increase the number of women in business by making and disseminating the economic case for the development of women’s enterprise.The Right to Time Off for Disruption to Arrangements for the Care of a DependantRoyal Bank of Scotland Plc v HarrisonThis case is one of the few cases dealing with time off for the care of dependants to reach the Employment Appeals Tribunal (EAT). Mrs Harrison was informed by her child minder on 8 December that she would not be able to look after her children on 22 December. Mrs Harrison attempted to arrange alternative cover but was unable to do so. On 13 December Mrs Harrison told her employer that she would need to take 22 December off. Her employer did not indicate until 20 December that this would not be possible. Mrs Harrison took off 22 December and received a written warning for having done so.
The EAT held that the disruption in care arrangements for an employee to fall within the rights to time off under the Employment Rights Act only need be unexpected not sudden. The EAT recognised that if the employee had been informed in July then it would have been very unlikely that she would fall within the protection of this section but it remains unclear where the line should be drawn. However, this case shows that the right to take emergency time off is wider than previously thought.Equal PayThere have been a considerable number of equal pay claims over the past few months. We have selected two cases which are important reminders of the scope of the right to equal pay:
Hartlepool EC v DolphinThis case is a timely reminder that equal pay includes bonuses and is not limited to base salary. In this case, male employees were paid productivity bonuses which were held to be a sham: the bonuses could be paid to some employees for merely completing the job they were paid to do in any event. Therefore, it was difficult to see how the bonuses could improve productivity. The Tribunal held that the bonuses had a disproportionate impact on women because the bonuses were paid to groups of workers who were predominantly male whereas the groups of workers which were predominantly female did not receive bonuses.
Sodexo v GutridgeA warning that equal pay claims transfer under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) was given by the EAT who upheld the decision that employees were entitled to bring an equal pay claim five years after a transfer took place under TUPE 1981. As TUPE 2006 has made it clear that it applies to outsourcings, insourcings and wider service provision changes it is important to be alert to the possibility that equal pay liabilities may transfer.
Whistle-blowingHibbins v Hesters Way Neighbourhood ProjectThe EAT confirmed that the protection for whistleblowers under the Employment Rights Act 1996 (ERA) is not limited to cases where the disclosure relates to a wrong doing or failure by the whistleblower’s employer. In this case, the employee made a protected disclosure to the police about one of her students being a suspect in a rape case. The employee alleged that she had been subject to detrimental treatment because of this disclosure and the question arose whether this disclosure was protected under the ERA’s whistle blowing provisions.
The EAT confirmed that the legislation extends its protection to employees who make a disclosure about the wrongdoing of any legal person. This does not mark a fundamental change in the law as it had always been expected that the legislation provided protection in such circumstances. It is now clear that the ERA will protect Employee A of Company B, where A discloses the wrong doing of Company C.
