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What Cases and Upcoming Changes Should Those in the HE Sector Be Aware of in 2019?

on Tuesday, 12 February 2019.

In this article we have selected a few of the significant cases and proposed employment law changes which will affect many employers but will be of particular interest to HEIs.

Is it Discriminatory on the Ground of Sex for an Employer to Enhance Maternity Pay But Not Shared Parental Pay?

In Capita Customer Management Ltd v Ali and another the Employment Appeal Tribunal (EAT) held that failure to pay a male employee enhanced parental pay, where the employer offered female employees enhanced maternity pay, was not direct sex discrimination. For the purposes of this claim, the EAT considered that the employee, Mr Ali, could not seek to compare himself to a woman on maternity leave because the purpose of maternity leave was for the protection of pregnant workers and those who have given birth or who are breastfeeding. Conversely, the purpose of shared parental leave is to care for the beneficiaries' child and, therefore, the correct comparator was a woman who wished to take shared parental leave. As a woman on shared parental leave would have been afforded the same treatment as Mr Ali, the claim failed.

However, in Hextall v Chief Constable of Leicestershire Police and another the EAT considered the same question under a claim of indirect sex discrimination, stating that such a practice could amount to indirect discrimination because fathers can only take shared parental leave whereas mothers have a choice of taking maternity leave or shared parental leave.

Both of these cases have been appealed and are due to be heard in the Court of Appeal on 1 May 2019.

Back when shared parental leave was introduced in 2014, many HEIs will have had enhanced maternity pay policies in place and will have considered whether to offer enhanced shared parental pay too. However, these cases are only now emerging to consider the implications of not offering enhanced shared parental pay, and HEIs should keep policies under review in light of these developments.

Is it Correct to Use a Percentage of Actual Hours Worked to Calculate Holiday Pay for Part-Time Staff?

On 2 May 2019 the Court of Appeal will consider the case of Brazel v The Harpur Trust to decide whether employers can calculate holiday payments for part time workers on the basis of a percentage of the hours worked. The EAT in this case considered that the approach of using a percentage of hours worked to calculate holiday was in fact wrong, and that it should be calculated on the basis of a 12 week average before the holiday is taken in accordance with the Employment Rights Act 1996.

Some HEIs will use the concept of calculating holiday pay as a percentage of hours worked for casual and short term workers, and will be interested to hear the outcome of this case as to whether that approach can be considered to be correct or not.

Is Suspension a Neutral Act or Could it Amount to a Breach of Trust and Confidence?

In Agoreyo v London Borough of Lambeth the High Court considered whether suspension of a teacher, purportedly to allow for an investigation into alleged misconduct to take place, was a neutral act or constituted a breach of mutual trust and confidence.

The case involved an experienced teacher who had been suspended after being accused of using excessive force to restrain two children in her class. The High Court considered that the suspension was a "knee-jerk" reaction by the employer, and had breached the implied term of mutual trust and confidence. An interesting point was that the employer in this case said that the reason for the suspension was to ensure a fair investigation, rather than in order to protect the children, and the employer had not explained why there could not be a fair investigation without suspension.

It is common for employers to suspend employees where there have been allegations of misconduct, particularly where the allegations are serious, and employers may do so without giving it too much thought. The outcome of this case will serve as a reminder of the factors an employer should take into account before suspending an employee.

The Court of Appeal heard this case on 29 January 2019 and the Judgment is currently awaited.

Is it Discriminatory to Base an Ill-Health Pension on Part-Time Hours Introduced as a Reasonable Adjustment for an Employee?

In Williams v The Trustees of Swansea University Pension and Assurance Scheme the Supreme Court held that a disabled employee, who retired on the grounds of ill health aged 38, was not subjected to unfavourable treatment when his final salary pension was calculated with reference to his reduced working hours which had been introduced by the University as a reasonable adjustment in respect of a disability. The employee had worked for the University for 13 years, the first 10 years on full time hours and the final 3 years on reduced hours. He claimed that his pension should have been calculated on the basis of his full time hours, and the failure to do so amounted to discrimination arising from disability.

This decision will be a welcome clarification for HEIs who are faced with considering ill health retirement for employees, and where such reduced hours have been introduced to help the employee cope with ill health.

Gender Pay Gap

The next gender pay snapshot will take place on 31 March 2019 for the public and charitable sectors, with the deadline for producing the report being 30 March 2020. Press coverage at the time of the first reporting deadline highlighted that women seemed to fare worse in the HE sector than in other sectors. Therefore, HEIs should prepare for greater scrutiny of the data in line with any actions proposed in earlier reports for addressing any pay gap. They should also consider the narrative that will go along with the data which should set out the context of any continuing gender pay gap, the progress made, and how further improvements will be achieved.

Ethnicity Pay Reporting

The Government recently consulted on introducing a further pay reporting scheme in relation to ethnicity, and the outcome to the feedback is expected shortly. Whilst it is unlikely that, if introduced, such reporting will come into effect in 2019, HEIs should be prepared for greater discussion and scrutiny around this topic. With the experience of gender pay gap reporting, universities should start to consider the impact which ethnicity reporting could have on their institution and whether diversity measures should be considered well in advance of such reporting becoming mandatory.

The Good Work Plan

The Government's Good Work Plan proposes a number of key changes in employment, the majority of which may be relevant to HEIs:

  • The right to request a fixed working pattern for those who do not have one, with entitlement to make a request arising after 26 weeks of a non-fixed pattern.
  • A new test for employment status for self-employed workers, so that the test for the purposes of employment law and tax are the same.
  • Employers will be required to provide employees and workers with a written statement of terms and conditions on the first day of work.
  • The break in continuity of employment will be increased from one week to four weeks, making it easier for temporary workers to accrue the two years' qualifying service needed for a claim of unfair dismissal.
  • For calculating a week's pay, the reference period for variable pay will increase from 12 weeks to 52 weeks. This means that holiday pay calculations should be less affected by short term variations in pay.
  • Agency workers will have a right to claim equal pay as their permanent counterpart.
  • The threshold for employees to set up information and consultation arrangements will be lowered to 2% of employees, subject to the existing minimum of 15 employees.

Sexual Harassment

The Government has expedited a review into the use of non-disclosure agreements in the workplace due to the concern that harassment and bullying has been covered up by so-called 'gagging clauses'. This may result in legislative changes.

Further, the Government will also be consulting on a mandatory duty to protect workers from sexual harassment, how to tackle third party harassment and the protection of interns and volunteers.

For more information, please contact Katie Hurst in our Higher Education team on 0121 227 3751.

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