Employment Briefing May 2019

Martin Stephen

Published by
Martin Stephen

20th May 2019

Welcome to May's Employment news briefing, providing a summary of some of the recent employment judgements.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Sex Discrimination and Shared Parental Leave

In the recent case of Hextall v Chief Constable of Leicestershire Police, the Employment Appeal Tribunal (“EAT”) indicated that not enhancing shared parental leave pay to the same rate as maternity pay may give rise to an indirect sex discrimination claim by fathers.

After the birth of his child, Mr Hextall took 14 weeks shared parental leave. While his employer, Leicestershire Police, only paid statutory pay to parents taking shared parental leave, it paid 18 weeks enhanced pay to mothers on maternity leave. Mr Hextall brought a claim for direct and indirect sex discrimination on the basis that had he been a woman on maternity leave, he would have been entitled to full pay during his period of leave.

The Employment Tribunal (”ET”) found that it was neither direct nor indirect discrimination. In respect of the indirect discrimination claim, the Employment Tribunal found that the provision, criterion or practice (“PCP”) complained of was only paying statutory pay to parents taking shared parental pay. The ET held that this PCP did not disadvantage men because the same level of pay was paid to men and women on shared parental leave. Mr Hextall appealed to the EAT in respect of the indirect discrimination claim only.

The EAT held that:-

1. The ET had not properly considered the test for indirect discrimination. It was wrong to conclude that because the PCP applied to men and women equally there could be no indirect discrimination. The true test was to consider whether men might be disadvantaged in circumstances where men and women appear to be treated the same.

2. The ET had not properly identified the disadvantage complained of by Mr Hextall. The EAT summarised this to be because a man is “proportionately less likely to be able to benefit from an equivalent rate of pay when taking leave to act as the primary carer for his child to that received by a woman on maternity leave”.

3. The ET should not have excluded woman on maternity leave from the pool when considering whether men were disadvantaged by the PCP. The EAT held that the pool for comparison should include all employees with a present or future interest in taking leave to look after a new born child.

The EAT did not come to a decision and the claim was remitted to be reheard by a fresh tribunal. It is unfortunate that the EAT did not provide clear answers for employers. There remains a risk that only paying statutory pay to a man on shared parental leave will give rise to a claim of indirect sex discrimination. We will keep you updated of any developments in this area.

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Knowledge of Disability

In the recent case of Baldeh v Churches Housing Association, the EAT considered a claim for discrimination for “something arising in consequence of a disability”. This claim arises where an individual is treated unfavourably due to something arising in consequence of a disability, rather than due to the disability itself. In order for the claim to be successful, it is necessary for it to be shown that at the time of the employer’s actions, it either knew or ought to have known about the disability.

Mrs Baldeh was dismissed at the end of a six-month probationary period due to concerns about her performance and behaviour. Mrs Baldeh appealed the decision internally but this was rejected. Mr Baldeh then brought a claim for discrimination, arguing that her performance and behaviour were related to a disability, depression.

The ET dismissed Mr Baldeh’s claim, holding that her employer did not know and could not reasonably have been expected to know that she was disabled at the time of her dismissal. The ET further held that there was no evidence that the conduct complained of “arose in consequence” of her disability.

The EAT upheld Mr Baldeh’s appeal, finding that:-

1. There was evidence that Mrs Baldeh’s disability caused the relevant conduct. It was sufficient for the “something arising in consequence” of the disability to have a “significant influence” on the unfavourable treatment. The fact that there may have been other, additional reasons for the conduct was not a complete answer to the claim.

2. The tribunal failed to take account of evidence that the employer may have been aware of the disability at the internal appeal stage. Mrs Badleh had mentioned her mental health at the internal appeal hearing. The appeal hearing and the rejection of the appeal formed part of Mrs Badleh’s dismissal, the unfavourable behaviour complained of.

The point to note here is the issue of knowledge. Even if an employer is not aware of a disability when a decision to dismiss is made, it must be very careful if reference is made to health issues during a subsequent appeal process. This may be sufficient to show that the employer knew, or ought to have known, about this disability. Failure to take this into account could result in a discrimination claim.

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Unfair Dismissal and Religion

In the case of Kuteh v Dartford and Gravesham NHS Trust, the Court of Appeal held that a nurse was not unfairly dismissed for gross misconduct when she disobeyed instructions to refrain from initiating inappropriate conversations with patients about religion.

A number of complaints were made against the Claimant for starting unwanted conversations about religion. After a conversation about the inappropriateness of her conduct, the Claimant was ordered to refrain from initiating discussions on religion. When the Claimant failed to comply with this, disciplinary proceedings were brought and the Claimant was dismissed.

The ET held that the decision to dismiss was fair and the EAT refused permission to appeal. The Claimant appealed the decision of the EAT to the Court of Appeal. Rather than claiming that she had been discriminated against on the grounds of her religion, the Claimant argued that the ET failed to take account of her right to manifest her religion under Article 9 of the European Convention of Human Rights when assessing the fairness of the decision.

The Court of Appeal found that the Claimant had acted inappropriately by engaging in unwanted religious discussions and by failing to follow a lawful management order. On the basis that the disciplinary process had been carried out fairly and the decision reached was reasonable, the appeal was dismissed.

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The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at May 2019. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.