Family-friendly strategies can be a complex area for
employers to determine, encompassing a wide assortment of legislation, from the
European Parental Directive to the Sex Discrimination Act. Sharon Latham
outlines some of the trickiest scenarios an employer may face and suggests some
practical solutions
Parental leave
Sally works alongside Lynn at XYZ Limited and both are long-serving
employees. Lynn has recently returned from maternity leave and has applied for
parental leave, which is granted by the company. Sally has two boys (aged three
and four) who are proving a handful. She also applies for parental leave but
her application is rejected out of hand. Sally cannot understand why she should
be treated any differently from Lynn.
SL comments The principal issue here is the age of the children. Only
employees who have parental responsibility for a child born or adopted on or
after 15 December 1999 (and who have at least one year’s continuous employment)
are entitled to take parental leave. The somewhat incongruous result is that
Lynn is entitled to parental leave – but not Sally.
Concern had been raised as to the validity of this time restriction, as
there was no time restriction in the original European Parental Leave
directive. The TUC took judicial review proceedings against the Government
alleging that the UK’s regulations breached the original directive. Although
refraining from determining the issue, the High Court (supported by the Court
of Appeal) refused to grant an interim order allowing parents to take parental
leave pending the decision from the ECJ.
However, the Government recently announced that it intends to change the
legislation, meaning that all parents with children under five will soon be
able to take parental leave.
Part-timer pensions
ABC Limited has a part-time employee, Jane, working three days a week, who
has been with the company for the past two years. At the outset she asked to
join the pension scheme, but the company’s approach was that this was a benefit
that was offered only to full-timers to reflect their greater level of
commitment. A year later, when the scheme comes up for review, the company
decides to invite the part-timers to join. Since part-timers work only three
days a week, the company decides that it will contribute 3 per cent of their
gross pay to the scheme (full-timers receive 5 per cent). Jane has seen recent
press coverage regarding part-timers being denied access to pension schemes and
has raised her concerns.
SL comments Following the principle of "equal pay for equal
work", many part-time employees have had access to their employer’s
occupational pension scheme since 1995. Employers must provide equality of
access, contributions and benefits to male and female employees alike, unless
any difference in treatment is attributable to a material difference other than
sex. As the majority of part-time workers are female, most part-time employees
have access to pension schemes, because excluding part-time employees might
constitute an act of unlawful sex discrimination.
Prior to the new Part-Time Workers regulations taking effect, Jane’s
employer could deny part-time employees access to the pension scheme, provided
men and women worked full-time and part-time in equal proportions. This would
not be unlawful because indirect sex discrimination could not be proven, as
there was no disparate impact on women.
Under the new regulations, the employer is required to offer Jane access to
the pension scheme on the same basis as the full-time employees, unless her
exclusion can be justified on objective grounds. A tribunal is unlikely to
share the view of Jane’s employer – namely that part-timers are "less
committed" than full-timers – this is the opposite of what might be
considered "objective justification".
Jane would need to show that there was an existing full-time employee in the
same establishment, having the same type of employment contract/relationship
and engaged in the same or similar work to her, in comparison with whom she was
being disadvantaged.
If successful, in addition to any compensation payable for refusing her
entry in the first year, Jane’s employer should now be contributing 5 per cent
of her pay rather than 3 per cent. Under the Part-Time Workers regulations,
claims can be backdated for up to two years. There was no such limit in the
original European legislation, so the limit imposed in these regulations may
not stand for very long. If, of course, sex discrimination is proven, claims
can potentially be backdated to 1976.
Recruitment
A small firm is interviewing candidates for a new position. The new position
is going to be quite stressful, with a heavy workload involved. The firm is
intending to ask the female candidates, at the interview, what their domestic
arrangements are in terms of childcare and what outstanding parental leave they
have due to them.
SL comments The Sex Discrimination Act 1975 contains specific
provisions concerning recruitment processes and provides pre-contractual rights
to individuals who claim to have been unlawfully discriminated against at the
point of selection. Section 6 (1) of the Act makes it potentially unlawful to discriminate
against a woman (or a man) in the "arrangements made" to determine
who should be offered employment and by refusing or deliberately omitting to
offer her (or him) employment. The courts have interpreted "arrangements
made" to include interviews, applications and testing procedures.
The code of practice made under the Act provides useful guidance on
selection procedures, as does the Equal Opportunities Commission (EOC) code of
practice.
These include recommendations that:
– Employees tasked with dealing with job applicants receive training in the
provisions of the Act and potentially discriminatory acts
– Applications from men and women are processed in the same way – for
example, no separate lists are made of male and female or married and single
applicants
– Any questions posed relate only to the requirements of the job. If it is
necessary to assess whether personal circumstances will affect the performance
of the job (as here, where it may involve unsociable and long hours), this
should be discussed objectively without detailed questions based on assumptions
about marital status, children and domestic obligations. Questions about
marriage plans or family intentions should not be asked as they could be
construed to show bias against women.
If the firm took the action it currently intends, it would make the
(potentially incorrect) assumption that a woman has primary responsibility for
childcare. It is also implicit that the firm will use the answers given by the
applicant to unlawfully discriminate in their selection process, otherwise why
ask the question?
Unmarried father
Steve is a salesman for a large international corporation and he travels
widely in the UK and abroad. It is rumoured that he has girlfriends dotted
around the world. Steve has made his fifth application this year for parental
leave. So far the firm has granted those applications, but is wondering quite
how many children there are and whether any of them are benefiting from this
leave or if the time is being used to catch up with old
"acquaintances".
SL comments Under the legislation, Steve is entitled to a basic 13
weeks’ leave with a maximum of four weeks’ leave to be taken per year per child
in respect of whom he has parental responsibility. Subject to this, there is no
limit on the potential amount of leave Steve could seek.
However, there are steps that an employer could take to ensure that Steve is
genuinely entitled to such leave.
– Ask to see the birth certificate of any child in question to check the
date of birth. If the child was born before 15 December 1999, Steve will not
(currently) be entitled to the leave
– Check whether Steve is named as the father (if not, he will have to prove
he is by other means)
– Seek confirmation that Steve has parental responsibility. If he is married
to the mother, he will do so, but as an unmarried father he does not
automatically have parental responsibility unless he has, for example, obtained
a residence order from the court in respect of the child. Steve’s lifestyle
suggests the contrary
The purpose of parental leave is to benefit the child. In principle, the
firm could make it clear that the abuse of this entitlement would constitute a
disciplinary offence, but in practice this may be difficult to prove and an
employer looking to discipline an employee in these circumstances must exercise
caution.
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The main deterrent against extensive use of the parental leave entitlement
is that legislation currently makes the leave unpaid. However, the bad news for
Steve’s employers is that in the March 2001 budget, it was announced that two
weeks’ paid paternity leave (£100 per week) will be introduced for fathers in
April 2003. n
Sharon Latham is a senior associate specialising in employment law at
Clarke Willmott & Clarke, Bristol
