Partners Employment

Law SeminarEmployment Law update

Thursday 21st May 2015

Topics

1. Shared Parental Leave

2. Personality Clashes

3. Employment Law Update

Shared Parental

Leave

Partners Employment Lawyers 02073746546

www.partnerslaw.co.uk

When?

For babies due (or adopted) on or after 05 April 2015

Prior to 05 April 2015

The ‘old’ rights

• Maternity rights – Paid leave to attend antenatal appointments and up to 52 weeks’ maternity leave

• Paternity Rights – 2 weeks’ Ordinary Paternity Leave with Ordinary Statutory Paternity Pay. Option of Additional Paternity Leave if available.

• Adoption Rights – Up to 52 weeks’ Adoption Leave.

• Unpaid Parental Leave – After 1 year’s employment, each parent is entitled to 18 weeks’ unpaid parental leave per child.

Since 05 April 2015

The ‘current’ rights

• Shared Parental Leave (“ShPL”) and Shared Parental Pay (“ShPP”)

• Paternity Rights – Additional Paternity Leave is not available. 2 week Ordinary Paternity Leave remains.

• Time off to attend antenatal appointments – From 01 October 2014, right extended to qualifying employees and workers.

• Statutory Adoption Leave and Pay – Statutory Adoption Leave no longer has the 26 week qualifying period. Adoption pay in line with Statutory Maternity Pay.

• Surrogate parents – Similar rights now apply

Why?

To encourage shared parenting

To enhance equality between men and women in the workplace

The Regulations

The Shared Parental Leave Regulations

2014

The Statutory Shared Parental Pay

(General) Regulations 2014

The Maternity and Adoption Leave

(Curtailment of Statutory Rights to Leave)

Regulations 2014

The Statutory Maternity Pay and Statutory

Adoption Pay (Curtailment) Regulations

2014

The Maternity Allowance (Curtailment)

Regulations 2014

What will change?

Partner (“P”) can take 50/48 weeks of

leave

Mother (“M”) and P can take leave alone or

together

M & P can stop and start ShPL and return

to work between periods of leave

Additional Paternity Leave is abolished

What will stay the same?

Statutory Maternity Leave not being abolished

Compulsory Maternity Leave (2/4 weeks)

Ordinary Paternity Leave not being abolished (1/2

weeks)

Max leave remains 52 weeks

Max statutory pay (39 weeks)

Example

M & P take ShPL and share it equally

52 weeks SML minus 2 weeks compulsory SML = 50 weeks

50 weeks split equally = 25 weeks each

P takes 2 weeks Ordinary Paternity Leave

M takes 2 weeks compulsory SML

M & P can both take a total of 27 weeks of statutory leave

How can ShPL be taken

Must be taken within 52 weeks from birth

(or adoption)

Continuous or discontinuous blocks

Max 3 blocks

Complete weeks

P can start ShPL while M still on SML/SMP

Eligibility - Mother

Must satisfy the ‘continuity of employment’ test

Have the main responsibility for care (with P)

Be entitled to statutory maternity leave

Curtail her maternity leave

Give her employer:-

A) notice of curtailment

B) if requested, child’s birth certificate and

details of child’s father; and

C) a period of leave notice

Eligibility - Mother

For M to be entitled, P must also:-

A) satisfy the ‘employment and earnings test’; and

B) have the main responsibility for care (with M)

Eligibility - Partner

Must satisfy the ‘continuity of employment’ test

Have the main responsibility for care (with M)

Give his employer:-

A) notice of entitlement and intention to take SPL

B) if requested, a copy of child’s birth certificate

and details of child’s mother; and

C) a period of leave notice

Eligibility - Partner

For P to be entitled, M must also:-

A) satisfy the ‘employment and earnings’ test

B) have the main responsibility for care (with P)

C) be entitled to SML, SMP or MA

D) If entitled to SML – have curtailed the right

E) If not entitled to SML but entitled to SMP or MA –

have curtailed the right

Eligibility - Tests

Employment and Earnings

Must have worked for any 26 out of 66 weeks

preceding the child’s birth; and

Must have earned at least £30 gross salary per

week for any 13 of those 66 weeks.

Eligibility - Tests

Continuity of employment

Must have at least 26 weeks’ continuous

service with the same employer at the 14th

week before the expected week of childbirth;

and

Must still be working for the same employer

when they intend to take the leave.

Consequences of the two stage test

ShPL only available to employees

Some employees eligible for ShPL but not ShPP

If mother not entitled to Maternity Leave but is

entitled to SMP/MA (eg. self-employed), P may

still be eligible for ShPL

Eligibility for Statutory Shared Pay

M/P can get ShPP if an employee and one of the

following applies:

M eligible for Statutory Maternity Pay (SMP) or

Statutory Adoption Pay (SAP)

P eligible for Statutory Paternity Pay (SPP) and

your partner is eligible for SMP, Maternity

Allowance (MA) or SAP

Workers can also get ShPP if eligible

for Statutory Maternity Pay or Statutory

Paternity Pay.

Opting in to ShPL

M must ‘opt in’ to ShPL and curtail her

SML/SMP/MA by:-

Submitting written notice to employer/DWP;

or

Returning to work before the end of SML period

Number and form of notices

M taking ShPL has various notices to submit to employer

1. Notice of entitlement and intention to take

2. ML curtailment notice

3. SMP curtailment notice

4. Period of leave notice

5. Notice under regulation 6 ShPP Regs

1. and 2. must be submitted together

1. And 4. may be submitted together

Notice of entitlement

8 weeks notice before the first block

Information – including SML start and end

dates, ShPL available, amount intending to

take and how intending to take

Declaration (signed by M/P)

Declarations

A declaration signed by M that:

she satisfies, or will satisfy, the eligibility criteria to take SPL

the information given by M in the notice is accurate.

M will immediately inform her employer if she ceases to care

for C.

A declaration signed by P which states P's name, address and

national insurance number, and which states that P:

satisfies, or will satisfy, the eligibility conditions required for M

to take SPL

is C's father, or M's spouse, civil partner or partner;

consents to the amount of leave which M intends to take; and

consents to M's employer processing the information in P's

declaration.

Declarations

If only P taking ShPL, M must provide employer

with written and signed declaration that:

P has given notice and intends to take ShPL;

and

M consents to the amount of leave that P

intends to take

Period of leave notice

At least 8 weeks’ notice

Can provide notice of more than one block

Maximum 3 notices

If child born early, special rules apply

How can leave be taken

May be taken any time up until child’s first birthday

M cannot start ShPL until after compulsory MP period

P will lose entitlement to Ordinary Paternity Leave

In practice, most P’s will take OPL before starting ShPL

P may start ShPL while M still on ML

Can be taken in continuous or discontinuous blocks

Must be taken in blocks of at least one week

How can leave be taken

Continuous leave request

Employer cannot refuse

Discontinuous leave request

14 days consideration period

Employer can agree to it, propose alternative dates or

refuse the request

If request is rejected, employee entitled to take the

total amount of leave requested as one continuous block

or withdraw the request

How can leave be taken

Discontinuous leave

If no agreement reached within 14 days, continuous

period of leave will start on:

Date chosen by employee

Must be chosen within 19 days

Cannot be sooner than 8 weeks from the date of the original

notification; or

If employee does not choose, continuous leave commences

when the discontinuous leave would have started

Variation of a leave request

Employee can request:

To vary start/end date of leave – at least 8 weeks

before old and new dates

A continuous period of leave becomes

discontinuous and vice versa

To vary/cancel amount of leave – at least 8 weeks

before leave begins

Revocation of a leave request

M can change decision to curtail SML if:

Curtailment date not passed; and

Has not returned to work

One of the following must also apply:

Discovered that M/P not eligible;

P dies; or

Where M gave advanced notice, revocation is less

than 6 weeks after birth

Possible problems

Detriment claims

Constructive dismissal claims

Automatic unfair dismissal claims

Discrimination claims

Detriment / Dismissal

Section 47C Employment Rights Act 1996

No prescribed list of reasons for employer refusing request for discontinuous

leave

Breach of implied duty of mutual trust and confidence – constructive unfair

dismissal claims?

Section 99 Employment Rights Act 1996

Shared Parental Pay

Statutory ShPP (if eligible):-

39 weeks total

6 weeks at 90% weekly earnings; and

£139.58 thereafter

Possible to enhance ShPP.

Enhanced Shared Parental Pay?

Would an employer that enhanced maternity pay discriminate directly or

indirectly against men if it failed to similarly enhance Shared Parental Pay?

Government – no need to match any enhanced maternity pay with enhanced

Shared Parental Pay

Legal Position - TBC

Direct Sex Discrimination

Direct sex discrimination occurs where, because of sex, A treats B less favourably

than A treats or would treat others – section 13(1) Equality Act 2010

An employee claiming direct sex discrimination will need to show that they have

been treated less favourably than a real or hypothetical comparator

Who is the correct comparator?

A female on Shared Parental Leave?

A female on maternity leave?

Indirect Sex Discrimination

Indirect sex discrimination occurs where:

A applies to B a provision, criterion or practice (PCP).

A applies (or would apply) that PCP to persons not of the same sex as B.

The PCP puts or would put persons of B's sex at a particular disadvantage.

The PCP puts or would put B at that disadvantage.

A cannot justify the PCP by showing it to be a proportionate means of

achieving a legitimate aim.

( Seconds 11 and 19, EqA 2010.)

Indirect Sex Discrimination

If an employer pays enhanced pay only to women on maternity leave:

This is a PCP

All men and some women cannot comply

Prima facie indirectly discriminatory

Shuter v Ford Motor Company Ltd

Practical tips

Attempt to justify decision to enhance ML but not ShPP

Demographics of the workforce? Shuter justification available?

Keep a paper trail

Ensure you have a clear policy on Shared Parental Leave

Ensure that managers are trained in dealing with Shared Parental Leave

requests

Be flexible where necessary/possible

Try and avoid detriment claims in relation to discontinuous leave refusals

Consider every request individually and consider needs of individual and needs of

the business

Personality Clashes

Personality Clashes can be the cause of

many problems

Productivity

Grievances

Resignations

Management

Differences in opinions

Legal structure

1. Diagnose potential legal issues

2. Exclude non-relevant issues

3. Stabilise

4. Investigate – ACAS Code/Procedures

5. Confirmation with witnesses

6. Informal or Formal Procedure?

7. Monitor & review

8. Keep records and a paper trail

Investigations

Find out what is going on

Conduct, Capability? Or a personality clash?

Look out for legal issues

Find and speak to witnesses

Follow up leads

Pave way for solutions

Stabilise the clashes

Management instructions

Confidentiality

Neutrality or investigators

Reporting procedures need to be put in place

Instant action required

Consider:-

Suspensions

Redeploying one of the workers

Changing work patterns

Attempting to mediate

Further training

Diagnosis

Look out for major issues

Discrimination & victimisation

Bullying and harassment

Stress

Drop in performance/productivity

Confrontations and arguments

Detriments and legal complaints

Discrimination

Unfair and constructive dismissal

Personal Injury claim?

The end game

Informal procedure v Formal procedure

Can personality clashes justify dismissal?

Potentially fair reasons include:-

Misconduct – for example, if clashes amount to harassment/discrimination

Capability – if underperforming

‘Some other substantial reason’ (“SOSR”)

Before dismissal

Employer must demonstrate that in the circumstances it acted reasonably in treating any personality clash and the effect it had on the business as a sufficient reason for dismissing a negative employee.

Consider alternatives to dismissal

Redeploying one of the workers

Changing work patterns

Attempting to mediate

Follow a fair procedure

Investigate

Allow an appeal

Leading case -Treganowan v Robert Knee &

Co Ltd

Differences of opinion on merits of a permissive society!

Tense and unbearable atmosphere

Seriously affecting business

Case highlights that personality clashes or irreconcilable differences between

colleagues can amount to SOSR. However, to do so, the conflict must be

causing substantial disruption to the business.

Examples of personality justifying

dismissal

The “aloof, stubborn, and at times, intimidating” – Perkins

The “completely insensitive” woman – Treganowan

The “very determined and forceful lady who was not prepared to admit that

anything she did could have been wrong in any way” – Gorfin v Distressed

Gentlefolk’s Aid Association

Disciplinary meeting

Handbooks and ACAS

Flexibility/workplace colleague

Grievances within discipline

Further investigations?

Changes

Prevention –v- cure

Reviewing standards

Training

Management priorities

Notifications

Define acceptable behaviour

Problem areas

Not considering alternatives to dismissal

Leaving the issue unresolved

Can the personality conflict be ‘patched up’?

Not following a fair procedure

Old/historic incidents used

Employment Law Update 2015

A snapshot of recent/pending updates

1. New statutory pay rates

Statutory pay for maternity, paternity, adoption and shared parental

leave will increase to £139.58 per week.

Statutory sick pay (SSP) rate will increase to £88.45 per week.

The limit for a week's pay when calculating redundancy pay willincrease to £475.

Implementation date: 06 April 2015

2. Claims for arrears of pay

Claims for arrears of holiday pay limited to two years

The Government introduces new regulations to prevent claims

for arrears of holiday pay going back more than two years.

Implementation date: 01 July 2015

(See the case of Bear Scotland v Fulton)

3. Caste discrimination

The Enterprise and Regulatory Reform Act 2013 prescribes that

the Government must add "caste" to the definition of "race"

under the Equality Act 2010

Implementation date: TBC

4. New Fit for Work service available for

employees with sickness absence of four weeks or

more

The Fit for Work service (FFW) was set up following therecommendations of Dame Carol Black. It is being delivered inEngland and Wales by Health Management Ltd and in Scotland bythe Scottish government via NHS Scotland. There are two aspectsto the service:

Free health and work advice through its website and telephoneadvice line to help with absence prevention.

Free referral for an occupational health assessment foremployees who have reached, or whose GP expects them toreach, four weeks of sickness absence.

FFW cont…

FFW is intended to assist employees return to work, using a

return-to-work plan where appropriate.

The service can also be used to provide more generalised open-

access occupational health advice to employees, employers and

general practitioners, regardless of the duration of any

sickness.

Employers will be able to claim up to £500 tax relief on

payments for medical treatment for their employees where the

treatment has been recommended under the new scheme.

Implementation date: Autumn 2015

5. Holiday Pay Ruling

Bear Scotland v Fulton

The landmark ruling in Bear v Fulton ruled that non-guaranteed overtime

should be included in holiday pay calculations.

Following the EAT's decision in Bear Scotland,

statutory holiday pay derived from the Working Time Directive must be

calculated in accordance with the tests laid down in the ECJ case law,

whereby holiday pay is based on pay that is normally received and must

include:

Payments linked intrinsically to the performance of the tasks which

the worker is required to carry out under their contract of

employment.

Payments which relate to the worker's professional and personal

status.

Commission?

Yes. The ECJ ruled that commission must be

included as it was intrinsically linked to the

performance of tasks under the worker's contract.

Overtime pay?

Three categories of overtime:

Guaranteed (compulsory) overtime, where even if the employee is not called on to work it, the employer is liable to pay them for it.

Voluntary overtime, where an employee cannot be required to work it, and the employer does not have to provide it.

A "halfway house" (sometimes called "non-guaranteed" overtime), where the employee is obliged to work overtime if required, but the employer is not obliged to provide overtime or pay in lieu.

THANK YOU

Partners Employment Lawyers

02073746546 www.partnerslaw.co.uk

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