Case round up

Alabaster v Barclays Bank plc
Maternity leave and pay rises

Ms Alabaster worked as an administrator at the Woolwich Building Society (now Barclays Bank). She started maternity leave in January 1996. She was awarded a salary increase in December 1995, but this was not included in the calculation of her statutory maternity pay (SMP). This was because the increase was awarded outside the eight-week calculation period (the reference period) for determining the earnings-related part of SMP.

Supported by the Equal Opportunities Commission, Alabaster argued that this breached the Equal Pay Act and European law. Even though the Woolwich paid Alabaster in accordance with the SMP regulations at the time, she claimed that her SMP should have taken account of a pay rise awarded after the relevant period, but before she went on maternity leave.

Last year the European Court of Justice (ECJ) found that the SMP regulations failed to properly implement EU law. As a result, the SMP regulations were amended last month. Under the new rules, an employer must recalculate the SMP due if there is any pay rise during not only the relevant period, but also between the end of the relevant period, and the end of ordinary maternity leave or additional maternity leave. The case went to the Court of Appeal to decide, among other things, Alabaster’s entitlement to an effective remedy under UK law.

Alabaster had brought her claim under the Employment Rights Act and was outside the three-month time limit for claiming.
The Court of Appeal confirmed, however, that she could bring a claim under the Equal Pay Act and that employees can bring retrospective claims for back pay under this legislation even though there is no male comparator.

This type of claim has the advantage of more generous time limits – as claims can be brought at any time up to six months after the end of the employment contract and for pay going back up to six years.

What you should do

  • Be aware that employees currently receiving SMP, and those who will become entitled to receive it, are able to rely on the new SMP regulations to claim entitlement to have relevant pay rises taken into account even where these occur after the relevant reference period. Also, as a result of this case, claims under the Equal Pay Act can be brought in the six months following termination and can relate to arrears of SMP for up to six years before the date on which the claim was brought. In view of this, take steps to ensure your internal procedures will trigger a recalculation of SMP for relevant employees where pay rises are awarded during their maternity leave
  • Be aware that any employee who thinks that they have a claim for underpayment of SMP should first bring a grievance under the statutory grievance procedure. Employees will be barred from commencing tribunal proceedings if they have not first raised a grievance under the new statutory dispute resolution procedures
  • Employers should be able to reclaim any additional payments that they have to make from HM Revenue and Customs.

Mosman v Bray Management Limited
Submitting electronic forms

With tribunals actively encouraging electronic submission of claim forms, this decision is a warning for those who choose this method but leave it to the last minute.

The claimant’s employment was terminated on 30 September 2003, giving a deadline of 29 December for the presentation of any associated claims. Given that this fell over the Christmas period, electronic submission was considered preferable to reliance on the post.

The form was sent at 2.33 pm on 29 December, but, due to a technical hitch, was not successfully delivered.

The tribunal considered that to be ‘presented’ means that something actually has to be delivered to the employment tribunal, whether physically or in electronic form, and in this case this had simply not happened. The EAT agreed with the tribunal’s interpretation of ‘presented’.

What you should do

The online claim form states that: “It is not guaranteed that the tribunal will receive your form on the same day as you submit it and you may wish to consider an alternative method of delivery if your application is time critical.” In view of the risk, if you choose to submit the claim electronically you should always contact the tribunal and get confirmation the claim has actually been received before the deadline for submission.

Starmer v British Airways
Flexible working requests

The claimant, Jessica Starmer, a British Airways pilot, had returned from maternity leave on a part-time basis, working 12 days a month. She wanted to reduce her hours further to look after her year old baby. BA refused her request on safety grounds on the basis that its pilots are required to have at least 2,000 flying hours experience – approximately three years of full-time flying – before it is acceptable for them to work at 50% levels.

BA applied this safety threshold equally to all pilots, male and female. Starmer claimed indirect sex discrimination on the grounds that it was more likely for women to need to reduce their hours to care for children. On the available evidence, the tribunal rejected BA’s justification defence and found in favour of the employee. BA is appealing the decision.

The tribunal decision, although not a binding authority, has caused alarm in the airline industry as it appears to interfere with the airlines’ right to set its own standards and procedures. The case illustrates the importance of having a clear and objective justification for refusing a flexible work request.

What you should do

  • Whenever you receive a flexible working request, consider it carefully. Before reaching a decision, balance the interests of the individual (and the reasons behind their request) with the needs of the business (which may include safety issues). Adopting a rigid approach, or one which focuses too much on the business case, runs the risk of a discrimination claim
  • Carefully document any steps taken to analyse and/or assess the particular flexible working request; if the matter does become litigious you will be required to prove to a tribunal that the request was considered in detail and the decision to refuse the request was reasonable and justified. Do not base your decision on assumptions, as this will undoubtedly increase the risk of discrimination claims.

Rodway v South Central Trains Limited
Statutory paternity leave

The Court of Appeal has confirmed that statutory parental leave can only be taken in multiples of a week and a company’s policy to insist on paternity leave being taken in periods of at least seven days is not unlawful.

The claimant had requested a day’s annual leave to look after his son. This was unlikely to be guaranteed and the claimant therefore made a formal written request for parental leave several weeks prior to the day in question. In spite of this request being refused, the claimant took the day off anyway.

This resulted in a disciplinary hearing and formal warning. The claimant viewed this as a detriment under section 47 ERA 1996, which provides protection of employees’ rights to parental leave under the Maternity and Parental Leave Regulations.

The claimant was in fact successful in the first instance, but the decision was reversed by the EAT. The Court of Appeal agreed. The regulations did not make provision for the entitlement to take parental leave of single days. Rather, the right to take parental leave was the right to take and exercise parental leave in week-long blocks.

The claimant had not, therefore, suffered any detriment, since no lawful entitlement existed in the first place and any disciplinary action had been justified.

What you should do

  • Be aware that employees may have more generous contractual rights to parental leave. Always check the company’s parental leave policy and the individual’s contract of employment when considering this issue
  • Where the need to provide childcare arises unexpectedly, consider using the right to take time off to care for dependants. Where the need is foreseeable, you can ask the employee to apply for holiday, or take a whole week’s parental leave.

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