Case 2: The second case involved a police officer who brought a claim of indirect sex discrimination on the basis that shared parental leave for police officers was paid at the statutory rate but mothers on maternity leave received full pay for 18 weeks. An Employment Tribunal initially ruled that there was no direct or indirect sex discrimination. On appeal, the Employment Appeal Tribunal ruled that such a policy could potentially give rise to indirect sex discrimination on the basis that fathers in the police force only have the option of taking shared
parental leave (at statutory pay), whereas mothers have the additional option of taking maternity leave (at full pay for 18 weeks). The case was also appealed to the Court of Appeal.
The Court of Appeal has now ruled that there was no sex discrimination in either case. The Court ruled that the purpose of maternity leave is different to shared parental leave. Maternity leave is designed to protect the mother in connection with the effects of pregnancy and motherhood whereas shared parental leave is all about facilitating childcare. A man on shared parental leave is therefore not comparable to a woman on maternity leave. In addition, UK law expressly allows employers to provide special treatment to women in connection with pregnancy or childbirth without this constituting unlawful discrimination. Accordingly, employees taking shared parental leave cannot claim sex discrimination in relation to more favourable enhanced pay offered to mothers taking maternity leave.
This ruling provides some welcome clarity for employers and suggests that employers can safely pay employees on shared parental leave less than mothers on maternity leave. However, the ruling is likely to be appealed to the Supreme Court and this may not be the last word on the issue. In addition, in practice many employers align their policies on enhanced pay for maternity and shared parental leave, given the aim of shared parental leave is to promote greater equality and give parents more choice as to how to share parental responsibilities.
ALI V CAPITA CUSTOMER MANAGEMENT LTD; HEXTALL V CHIEF CONSTABLE OF LEICESTERSHIRE POLICE & ANOTHER
Working hours – what records should be kept?
A recent European Court ruling suggests that employers should be required to set up a system of measuring working time for all workers. The ruling involved a claim from a Spanish trade union against a bank in Spain, arguing that the bank was under an obligation to set up a system to record the actual number of hours worked each day by staff. The Spanish courts referred the case to the European Court of Justice (ECJ) to understand what the requirement is under EU law.
The ECJ has ruled that, under EU law, member states must require employers to set up an "objective, reliable and accessible" system of measuring working time for all workers. Without this, there is no way of ensuring that employers are complying with working time rights, such as the limit on weekly working time and the right to daily and weekly rest periods.
In the UK, employers are only required to keep records to show (i) compliance with the weekly working time limit (for workers who have not opted out of the limit) and (ii) that limitations on night work are being complied with. However, employers are not required to keep records of all working time for all workers to show, for example, that rest breaks and daily rest requirements are being complied with. There is therefore a question over whether the UK law complies with EU law. Some commentators are suggesting employers immediately need to implement new time recording systems. However, the full impact of the ruling is not known and it is unlikely that employers will want to change their time recording practices straight away. For many organisations, it is simply not practical to require all workers to keep a record of all hours worked. Having said that, the UK Government may decide to change the law or case law may develop to introduce such a requirement in the UK in future. Until then, many employers will be adopting a "wait and see" approach.
FEDERACIÓN DE SERVICIOS DE COMISIONES OBRERAS (CCOO) V DEUTSCHE BANK SAE
Trade union inducements
Employers are prevented from inducing employees who are members of a recognised union to step out of collective bargaining arrangements. But can a 'one-off' pay offer constitute an unlawful inducement?
The employer in this case had a collective agreement with a recognised trade union, which provided that pay negotiations would take place annually. However, pay negotiations for 2016 broke down when the union rejected the employer's offer. The employer then went directly to employees with the same offer, giving them the chance to sign up on an individual basis. The offer, which comprised a two percent pay rise and a Christmas bonus, was made twice to employees, once at the end of 2015 and once again in early 2016 for those who had not yet signed up. A group of employees brought claims alleging that the employer's direct offers constituted unlawful inducements for them to step outside of collective bargaining.
The Employment Tribunal and the Employment Appeal Tribunal (EAT) initially ruled that the direct offers were unlawful inducements. The Employment Tribunal and EAT said that the employer's motive was to circumvent the collective bargaining process and to make deals directly with employees. However, on appeal, the Court of Appeal ruled that an offer will only be unlawful if the effect is that employees' pay or other terms are no longer determined by a collective agreement on a permanent basis. A 'one-off' offer covering only one year would therefore not constitute an unlawful inducement – otherwise, unions would effectively have a veto over even the most minor changes to terms and conditions.
This ruling is helpful for employers who recognise trade unions. It means that where there is an impasse in annual pay negotiations, the employer can put its offer directly to employees. Provided there is a genuine impasse, the offer is a 'one off', and the employer intends to continue with collective bargaining in future, this will not constitute an unlawful inducement. However, employers should still tread carefully in collective bargaining negotiations. An employer who blatantly or consistently disregards the collective bargaining process and goes straight to employees with its offer could still fall foul of the unlawful inducement provisions. The cost is significant – a mandatory award of £4,059 per each union member to whom an offer is made. Employers should therefore only make offers directly to employees after efforts have been made to agree the proposal with the recognised trade union. It is also possible that the case could be appealed to the Supreme Court, which could take a different view. Employment Update will report developments.
KOSTAL UK LTD V DUNKLEY