Shared parental leave policies could be discriminatory against men

Last month, we reported on the case of Capita v Ali, one of two cases on shared parental leave being heard by the Employment Appeal Tribunal (EAT). In Capita v Ali, the EAT held that it was not direct sex discrimination to pay enhanced maternity pay to mothers on maternity leave, whilst only offering statutory shared parental leave pay to fathers taking shared parental leave. This was because the situation of a father taking shared parental leave was not comparable to that of a mother taking maternity leave. The correct comparator for Mr Ali was a woman taking shared parental leave (who would also have received statutory shared parental pay).

The decision in the other case, Hextall v Chief Constable of Leicestershire Police, has now also been released.

Mr Hextall, a police officer, had brought a claim in the Employment Tribunal on the basis that paying statutory shared parental pay to him when paying full pay to those on maternity leave amounted to direct and indirect sex discrimination. To succeed in the indirect discrimination claim, he had to show that his employer had applied a “provision, criterion or practice” (in this case, their policy of paying only the statutory rate of shared parental pay) to everyone, but that it put those with a particular protected characteristic (in this case, men) at a particular disadvantage, and the employer couldn’t justify it as a proportionate means of achieving a legitimate aim.

The Tribunal based their reasons for rejecting Mr Hextall’s claim for indirect discrimination on their reasons for rejecting the direct discrimination claim, i.e. women on maternity leave were not the correct comparator for men on shared parental leave.

The EAT held that the Tribunal had erred in reaching its decision on this basis, and said that the relevant pool for comparison would be “those police officers with present or future interest in taking leave to care for their newborn child.” The Tribunal had failed to consider the disadvantage i.e. that men had no choice other than shared parental leave, as opposed to mothers who have the choice of maternity leave or shared parental leave.

The case was remitted to the Employment Tribunal to be reheard.

Paying enhanced maternity pay whilst only paying statutory shared parental pay could amount to indirect discrimination, unless the employer can objectively justify it. As we have said before, the safest approach for employers who pay enhanced maternity pay, is to also pay shared parental pay at the enhanced rate. Alternatively, employers could pay the statutory minimum pay for each type of leave regardless of who is taking it – but changing existing arrangements can be difficult, so it is always best to take advice.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Can verbal agreements trump written terms?

It is quite common to have a clause in an agreement which states something along the lines that any changes to the agreement have to be in writing. So what happens if the parties agree to vary the terms verbally, and then one party insists that the variation is not effective as it is not in writing? This was the question which the Supreme Court had to consider in the case of Rock Advertising v MWB Business Exchange Centres (2018).

This was not an employment case, but the principles established by the Supreme Court will potentially apply to all agreements, including employment agreements. In this case the Appellant entered into a licence agreement with the Respondent to occupy some office space. The Appellant fell into rent arrears and claimed to have reached an agreement with the Respondent to vary the terms of the licence to defer the rent payments. The Respondent denied this, but agreed there had been some concession on its part. The Appellant argued that the terms of the licence were effectively altered by the verbal agreement.

The Supreme Court said no – the licence agreement required any variation to be in writing, and that express term had not been satisfied. Therefore any verbal agreement which may or may not have been made was not effective.

Whilst this case is clear on the principle that an oral agreement to amend the terms of a contract which expressly states that any amendment must be in writing will not be effective, it does leave open the defence of estoppel. This will occur where the party relying on the doctrine can show that they have changed their position because of the actions or representations of the other party, and that it was reasonable for them to have done so, for example by relying on a verbal assurance. However, the doctrine of estoppel is a discretionary remedy, and really only one to be used when there is no other defence. So, if you want to make amendments to a contract which says that any amendments must be in writing, make sure they are, and ideally get the other party to sign to show their acceptance.

How this case will be applied in an employment context remains to be seen. One key difference between an employment contract and a commercial contract is that there is generally an imbalance of power between the parties. It seems likely that an employee may try and argue that this case should be interpreted differently, bearing in mind that employees usually have little influence on their terms and conditions.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Can smaller offences ever ‘add up’ to gross misconduct?

Usually, most people would tend to associate gross misconduct with situations where an employee has committed one particularly serious act (or omission). Staff handbooks and policies tend to list examples of offences that can amount to potential gross misconduct, and these are generally the most serious, such as theft, fraud and bullying.

In fact, even in the ACAS Code it states that gross misconduct will be where acts (or the consequences of the acts) are so serious that they may warrant dismissal for a first offence.

But in the recent case of Mbubaegbu v Homerton University Hospital, the Employment Appeal Tribunal (EAT) concluded that a collection of more minor acts could be treated as gross misconduct, and this was fair even where other colleagues had faced similar allegations without having been dismissed. So what was the reasoning behind that decision?

Background

Mr Mbubaegbu was a consultant orthopaedic surgeon and described himself as black African. He had 15 years’ service with the hospital, and had an unblemished record.

In 2013 the hospital introduced new rules and procedures to deal with some alleged dysfunction in the department where Mr Mbubaegbu worked. Several employees in the team, including Mr Mbubaegbu, failed to follow these new rules and procedures (such as documentation regarding patient consent) on a number of occasions, and as a result the hospital instigated disciplinary proceedings against them. However, Mr Mbubaegbu was the only one who was dismissed for gross misconduct, and he was also the only black African consultant.

He brought claims for unfair dismissal and breach of contract, as well as race discrimination. Those claims were rejected by the Employment Tribunal, so he appealed to the EAT.

The EAT’s conclusions

Amongst other things, the EAT considered the question of whether there needs to be ‘an act of gross misconduct’ in order to justify a summary dismissal (i.e. a dismissal without notice). They came to the conclusion that the essential question is whether the employee’s misconduct is serious enough to amount to a fundamental breach of the relationship of trust and confidence between employer and employee. The EAT felt that a pattern of minor issues could potentially amount to gross misconduct – there doesn’t need to be one single act. Here, they found that Mr Mbubaegbu’s actions were acts which put patients at risk, and the pattern of incidents made it reasonable in the circumstances for the hospital to conclude that they had lost faith in him not to let similar incidents happen again. Cumulatively, those incidents had undermined the relationship of trust and confidence.

Mr Mbubaegbu’s unfair dismissal and discrimination claims were rejected. His breach of contract claim was sent back to the Employment Tribunal for re-hearing because they had not stated their reasons clearly enough.

What does this mean in practice?

Although the EAT did find that a pattern of more minor issues could amount to gross misconduct, they did also go on to emphasise that “ordinarily” that will not be the case. Therefore we do not expect to suddenly see a trend of summary dismissals based on minor offences! I suspect that the fact that the hospital put their rules and procedures in place to protect patients was a factor in the Tribunal’s decision to take the minor breaches more seriously, which obviously may not apply in other contexts.

Nevertheless, this decision is potentially good news for employers, as it makes it clear that gross misconduct can apply even without one particularly serious act, so it gives more options when dealing with disciplinary cases. It will always be important to consider whether there has been a fundamental breach of trust and confidence – if in doubt, give us a call for advice.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

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