Information for Employees

Pregnancy and Maternity discrimination

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Section 18 of the Equality Act 2010 deals specifically with pregnancy and maternity discrimination. A woman bringing a claim under section 18 does not need to show that a male comparator would have been treated more favourably (they can’t, because men cannot be pregnant or go on maternity leave). In normal direct discrimination claims under section 13, employees need to provide details of a comparator who was treated more favourably than them in comparable circumstances.

In City of London Police v Geldart, the employee was a police officer. During her maternity leave she was paid full pay for 13 weeks, half pay for ten weeks and then statutory maternity pay for the remaining period. She was contractually entitled to a London allowance of £4338 per year. The employer paid the allowance at the same rates as her normal pay – full allowance for 13 weeks, then half allowance for ten weeks and then no allowance until she came back to work. The employee said the allowance should not have been reduced. She brought claims for direct sex discrimination under section 13, rather than using section 18.

The employment tribunal upheld her claim. The police rules governing the reductions in pay for maternity leave did not apply to the allowance. Not paying her the allowance whilst on maternity leave was direct sex discrimination. The employer appealed. Among other things, the employer argued that she had brought her claim under section 13 – direct discrimination – and therefore needed to show a comparator who would have been treated more favourably in comparable circumstances.

The EAT agreed with the employment tribunal. The workplace rules about the allowance simply said that London officers would receive a London allowance. The employee remained a London police officer during maternity leave and was therefore entitled to the allowance. The EAT confirmed that a woman on maternity leave is in a special position. If they are treated less favourably due to pregnancy or maternity leave, they do not need to prove that a man would have been treated differently. This is the case regardless of which section of the Equality Act 2010 they choose to rely on when bringing their claim.

 Astons Solicitors
20th January 2020

Philosophical belief discrimination

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The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.

In the high profile case of Forstater v CGD Europe, an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA). One tweet read ‘men cannot change into women’. Other employees complained and her contract was not renewed. She brought a discrimination claim, saying her contract was not renewed because of her belief about sex change.

The employment tribunal found that the belief met the thresholds set out above save for one aspect: her ‘absolutist’ belief was incompatible with human dignity and the fundamental rights of others. Her belief meant that she would refer to someone by their birth sex even if that violated their dignity or created an intimidating or hostile environment for them. This belief was not worthy of respect. She did not get protection under the Equality Act 2010 and could not bring a discrimination claim.

The judge in this case said that campaigning against changes to the GRA and calling for spaces for women assigned female at birth is one thing but insisting on calling transwomen men is something else entirely. It is this violation of someone else’s dignity that stopped her belief being protected in law. This case is an employment tribunal decision and not binding on other courts. It is likely to be appealed though and any binding decision could have a significant impact on freedom of speech.

Astons Solicitors
18th January 2020

Worker status

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Workers don’t have as much employment protection as employees but do have important legal rights such as paid holiday and the right to be paid the national minimum wage. Employment tribunals will look at multiple factors when deciding whether an individual is a worker or self-employed. The main ones are

  • Control – How much control does the company exert over the individual?
  • Mutuality of obligation – Is there an obligation for the company to provide work and the individual to accept it?
  • Integration – How integrated into the business is the individual?
  • Personal service – Does the individual have to do the work themselves or can they send someone else instead?
  • Running their own business – The courts will assess whether the individual is running their own business, rather than working for someone else’s business.

The issue of personal service is one which often arises in the employment tribunal. Will a contractual right of substitution – the right to send someone else to do the work – automatically rule out worker status? In Stuart Delivery v Augustine, Mr Augustine was a delivery driver. He signed up for ‘slots’ when he agreed to be online for a certain period in a certain location in return for a guaranteed minimum payment. He couldn’t work for anyone else during these slots. He had to remain in the agreed area and accept deliveries that were offered. Once signed up for a slot, he could only get out of doing it if another courier in the pool agreed to cover it. Otherwise Mr Augustine faced financial penalties or even removal from the platform.

The EAT said that this right to ‘release a slot’ back into the pool was not a free right of substitution. Only approved couriers could take the slot off Mr Augustine. He had no control over who, if anyone, would accept it. It wasn’t a right of substitution at all, rather a right to hope that another courier would release him from that obligation. If no one did, the obligation remained his. The EAT agreed that he was a worker during these periods, despite the ability to release the slots back into the pool of couriers.

Worker status cases are always fact specific. However, this decision follows other appeal judgments in showing that limited rights of substitution will not necessarily defeat a worker status claim.

Astons Solicitors
17th January 2020

Annual National Minimum Wage Increase

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The draft The National Minimum Wage (Amendment) Regulations 2017 have been published. The increase is proposed to come into effect on 1 April 2017.

The Regulations raise the national living wage (for those aged over 25) from £7.20 per hour to £7.50 per hour. There are other associated proposed increases for the other age bands as follows:-

National minimum wage for workers who are aged 21 or over (but not yet aged 25) from £6.95 to £7.05 per hour
The Rate for workers who are aged 18 or over (but not yet aged 21) from £5.55 to £5.60 per hour
The rate for workers who are under the age of 18 from £4.00 to £4.05 per hour
The apprenticeship rate increases from £3.40 to £3.50 per hour

Written by
Edward Aston
7th February 2017

Does travel to and from work count as working time?

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The European Court of Justice (ECJ) has provided guidance on what constitutes working time for those workers with no habitual workplace.

The ECJ looked at whether, for these types of workers, time spent travelling from home to customers’ premises and vice versa was working time under the Working Time Directive. It was concluded that it was.

The case arose as a result of two companies within the same group who employed technicians who were each assigned to a particular province or area of Spain. During 2011, the provincial offices were closed and all employees were assigned to a central office in Madrid.

The technicians use a company vehicle to travel from their homes to the places where they carry out their duties and then return home at the end of the day. The companies considered that the first journey of the day or the last journey home were “rest periods” and that the working day started when the technicians arrived at work and finished when they left their last assignment. Prior to the provincial offices closing, the employees calculated the working time as starting when a technician arrived at the office to pick up the vehicle and task list and finishing when they arrived back at that office to return the vehicle.

The technicians asserted that their first and last journeys of the day also amounted to working time. The Advocate General gave his opinion and stated that he considered that the first and last journey should be considered to be working time. He reached this conclusion based on the fact that traveling is an integral part of being a worker with no usual workplace, the journeys are subject to the authority of the employer and as travel is essential in the performance of the duties, it must be regarded as forming part of the “activity or duties” of those workers.

The ECJ agreed with the Advocate General and noted that not taking the journeys into account could have health and safety repercussions. It was also noted, in response to the companies’ concerns, that because the workers are “at the employer’s disposal” for the time of the journeys, they should act under their employer’s instruction and cannot use that time freely to pursue their own interests.

This ruling could have a significant impact on those companies who employ mobile workers who spend a lot of time travelling between customers. The main impact would be on working time and rest breaks. One consideration will be whether staff should be asked to opt out of the Working Time Directive’s 48-hour working week given that the first and last journeys will have to be taken into account.

If you require any advice or support on this issue, please feel free to contact our expert team of employment solicitors.

Written by
Edward Aston
15th September 2015

 

No Longer Reclaimable – Statutory Sick Pay

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The Government is to launch a new Health and Work Service that will offer a helpline and website from April 2015. This will also provide for free occupational health assessments where the employee has been off sick for a period longer than 4 weeks. The idea is that it will help employers save money by getting employees back to work quickly.

As they say there is no such thing as a free lunch. There is a sting in the tail which has not been overly publicised. The Government currently has a percentage threshold scheme whereby employers could reclaim any amount of statutory sick pay which exceeded 13% of its national insurance contributions in any month. This costs the State an estimated £50 million a year. This has been abolished from 6th April 2014 so the savings from this scheme will fund the new Health and Work Service next year. The rationale for abolishing it was that it gave employers an incentive not to encourage long term sick workers back into the workplace.

Certainly in the interim this will create an additional costs burden on employers. The rate of SSP will also increase at the same time by 1% so to £87.55 up from £86.70 per week. Another change is to the administration of sick pay and the government will abolish the statutory sick pay record-keeping obligations and allow employers to keep records in a flexible manner more suited to their organisation.

Written by
Edward Aston
11th April 2014