HR Two Minute Monthly: Post-termination victimisation; covert recordings; ECJ on maternity rights; April employment law changes


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Summary: Our April update includes: a case on whether post-termination victimisation is prohibited under the Equality Act; a number of maternity related items, including dismissal for absence due to post-natal depression, an ECJ decision on maternity rights for intended mothers of babies born to surrogates and the new right to shared parental leave; a case dealing with the admissibility of covert recordings; and a reminder of the April employment law changes.

The 20-second summary

Our April update includes:

  • A case on whether post-termination victimisation is prohibited under the Equality Act.
  • A number of maternity related items, including dismissal for absence due to post-natal depression, an ECJ decision on maternity rights for intended mothers of babies born to surrogates and the new right to shared parental leave.
  • A case dealing with the admissibility of covert recordings.
  • A reminder of the April employment law changes.

The Equality Act 2010 prohibits post-termination victimisation

The Court of Appeal in Jessemey v Rowstock Limited has held that section 108 of the Equality Act 2010 extends to post-termination victimisation, allowing ex-employees to bring a claim of victimisation against their former employer.

Why the uncertainty?

Under the Equality Act 2010, ex-employees are protected against post-termination discrimination and harassment, but not (on the drafting of the Act) victimisation. This has caused uncertainty for employees and employers, and until now it was unclear whether this lack of express protection prevented ex-employees from bringing such a claim.

The Tribunal and the EAT held that they were prevented from allowing a post-employment victimisation claim by the wording of the Equality Act

Mr Jessemey claimed unfair dismissal and age discrimination against Rowstock following the termination of his employment. Mr Jessemey added a claim for post-termination victimisation when he received a poor reference from Rowstock after applying for a new job. The Employment Tribunal found that the reason for the poor reference was that Mr Jessemey had brought a discrimination claim against Rowstock. However, it said that it could not make a finding of post-termination victimisation as the Equality Act did not provide for it. Mr Jessemey appealed to the EAT, which also felt constrained by the wording of the Equality Act.

The Court of Appeal said there is a drafting error in the Equality Act

The Court of Appeal held that this hole in the protection offered to ex-employees under the Equality Act is an unintentional drafting error. It said that at the time the Equality Act was drafted, post-employment victimisation was unlawful and the Act was not intended to change the law. UK law would not be in line with European law if it did not provide this protection.

Giving references

References can be a contentious issue, and employers should take care when providing them, particularly in light of the Court of Appeal’s decision. Liability for references can arise whether the reference is given over the telephone or in writing, and employers may want consider putting a policy in place to ensure a consistent approach.

Dismissal of an employee absent due to post-natal depression was not discrimination

In Lyons v DWP Jobcentre Plus, the EAT has held that the dismissal of a woman who was absent due to post-natal depression following her maternity leave was not pregnancy or sex discrimination.

Dismissal following absence due to post-natal depression

Following the birth of her child, Miss Lyons was diagnosed with post-natal depression and was not well enough to return to work in September 2010 at the end of her maternity leave period. Miss Lyons’ absence continued and, in March 2011, DWP dismissed her for capability reasons. Miss Lyons brought various Employment Tribunal claims including pregnancy and sex discrimination.

… was not pregnancy discrimination

The EAT agreed with the Tribunal that Miss Lyons had not been subject to discrimination because of pregnancy or sex. Miss Lyons’ dismissal was not pregnancy discrimination because it took place after the end of her maternity leave, even though her depression arose during her maternity leave. Employees are only protected from pregnancy discrimination for acts that take place during the protected period, which is during their pregnancy and whilst on maternity leave.

… or sex discrimination

The EAT also held that Miss Lyons’ dismissal was not sex discrimination because she had not shown that she had been treated less favourably than a man who had been absent for a similar amount of time. However, the EAT made it clear that the employer could not take account of any absence due to maternity leave when considering the amount of absence justifying dismissal.

Dismissing for absence due to gender-related illness

This case is a reminder that pregnancy discrimination ends when a woman returns from maternity leave. All dismissals for sickness absence are fact specific and medical evidence will be highly relevant. However, just because a woman is suffering from a gender-related illness, such as post-natal depression, does not make her dismissal an act of sex discrimination provided that a man who was absent for the same period would be treated in the same way.

Covert recordings are admissible as evidence

The EAT in Punjab National Bank v Gosain has held that private discussions, which took place between the panel in the course of disciplinary and grievance proceedings, were admissible as evidence in Employment Tribunal proceedings.

Both public and private discussions were recorded

Ms Gosain attended grievance and disciplinary hearings with her employer, Punjab National Bank, before resigning. During the course of the hearings, Ms Gosain covertly recorded not only the hearings themselves, but also the private discussions of the decision-making panel, to which she was not a party.

The recordings were admissible as evidence in the Tribunal proceedings

Ms Gosain brought claims for constructive unfair dismissal, sex discrimination and harassment. As part of those proceedings, she disclosed the recordings. At a preliminary hearing, the Tribunal held that the recordings were admissible, and on appeal the EAT agreed. The private discussions between the panel were not their deliberations relating to the grievance and disciplinary hearing issues. Instead, they included an alleged instruction from the managing director to dismiss Ms Gosain and the manager hearing the grievance saying that he was deliberately skipping the key issues raised in the grievance.

But would it be the same in all cases?

The EAT held that the fact that the recordings were made covertly did not make them inadmissible. The key is to strike a balance between the need to hear relevant evidence and the public policy arguments about preserving the confidentiality of private panel deliberations at grievance and disciplinary hearings. Here, the recordings were not of the private deliberations of the issues in hand, but ‘banter’ about the employee. The decision may well have been different if the recordings had captured the formal deliberations of the panel.

Employers should be wary

Employers should consider prohibiting covert recording expressly at grievance and disciplinary hearings. However while this may deter some employees, it is unlikely in itself to make such recordings inadmissible. Employers should ensure that all discussions are confined to legitimate issues relating to the grievance or disciplinary hearings.

Mothers of children born by a surrogate are not entitled to maternity leave

The ECJ in CD v ST and Z v A Government Department and another has held that the intended mothers of babies born through surrogate arrangements are not entitled to statutory maternity leave, even if the intended mother breastfeeds the child. The ECJ said that the women had not be subjected to sex discrimination as they were not treated any differently to the intended fathers of such children. In addition, in Z v A Government Department and another, the ECJ found that a woman who was unable to have children because she had no uterus was not discriminated because of disability.

Refusal of paid leave led to discrimination claims

In both case, the intended mothers of babies born to surrogates applied to their employers for paid time off work to care for their babies. The intended mother in CD v ST began to breastfeed the baby within an hour of its birth by the surrogate. In Z v A Government department and another, Z was unable to become pregnant herself because she had no uterus so had to use a surrogate to have the child.

Both were refused leave by their employers. CD brought claims including sex, and pregnancy and maternity discrimination in the Employment Tribunal. Z brought claims for discrimination on the grounds of gender, family status and disability in the Irish Equality Tribunal. Both Tribunals made references to the ECJ.

The ECJ said that EU law protected the birth mother only

The ECJ held that the purpose of maternity leave under the Pregnant Workers Directive is to protect the health of a birth mother who is in a vulnerable physical state. It said that while it is also intended to protect the bond between mother and child, this presupposes that the woman has been pregnant and given birth. Therefore although CD breastfed the child and the Pregnant Workers Directive specifically protects a worker who is breastfeeding, CD was not entitled to protection because she had not given birth to the child.

There was no sex or disability discrimination

The ECJ held that the treatment of the women was not discrimination because of sex or disability. It said that as intended fathers of babies born to surrogates were treated in the same way as the intended mothers, there was no sex discrimination and any refusal of maternity leave was not based on the women’s gender. There was also no discrimination because of disability because Z’s inability to have a child did not prevent her from having access to, participating in or advancing in employment. Therefore her condition did not constitute a disability under the EU Equal Treatment Framework Directive.

Future protection for intended parents

The Children and Families Act 2014 allows the Government to make regulations to give intended parents rights to adoption leave and pay, and from 1 October 2014, intended parents are expected to be entitled to time off to attend two of the surrogate’s antenatal appointments.

Children and Families Act 2014 receives Royal Assent

On 13 March 2014, the Children and Families Act 2014 received Royal Assent. The Act brings in several key changes to family leave, most notably it sets out the framework for parents to take shared parental leave from 5 April 2015.

Other changes include:

  • The extension of the right to request flexible working. With effect from 30 June 2014, this right will be available to all employees with 26 weeks’ service and the current statutory regime for considering a request will be abolished.
  • The right for partners to take unpaid time off work to attend a maximum of two antenatal appointments. This right comes into effect from 1 October 2014.

Draft regulations on shared parental leave and pay published

The Government has published draft regulations, which set out further detail on how the Government’s proposals for the new shared parental leave and pay system will work and which build on the Government’s response to its earlier consultation. The new leave will apply to babies due or children placed for adoption on or after 5 April 2015.

The regulations were subject to a small window of consultation – less than two weeks – which has now closed. The latest factsheet in our BLP: Looking Ahead series on shared parental leave focuses on the key points from the draft regulations.

Huge response to zero hours contracts consultation

A recent Government consultation on zero hours contracts received a huge reaction – with over 30,000 responses received. Zero hours contracts enable an employer to call upon an employee whenever they are needed, with the employee only being paid for the hours worked.

Two of the key issues in the consultation were the use of exclusivity clauses (which prevent an employee working for another employer while on a zero hours contract) and the lack of transparency of terms. Acas and CIPD both consider that exclusivity clauses are detrimental, and the CIPD has called for the Government to ban them.

Employment Tribunal statistics show significant drop in claims

Employment Tribunal statistics for the period October to December 2013 published recently by the Ministry of Justice show a 79% reduction in the number of Tribunal claims filed in the period, as compared with the same period in 2012, and a 75% reduction on the previous quarter.

Many commentators consider that this significant drop in claims is as a result of the introduction of Tribunal fees in July 2013. Given the dramatic nature of the decrease, this may give opponents of fees grounds to challenge their introduction.

Employment law changes come into effect on 6 April 2014

As detailed in our March 2014 edition of HR Two Minute Monthly, a number changes to employment law come into effect on 6 April 2014 including:

  • The introduction of Acas early conciliation for most Tribunal claims.
  • Financial penalties of up to £5,000 for employers who lose in the Employment Tribunal.
  • The abolition of discrimination questionnaires (subject to transitional arrangements).
  • The increase in the unfair dismissal compensatory award cap and the maximum week’s pay.
  • Increased rates of statutory family leave pay and sick pay.
  • An increase in Employment Tribunal fees for some claims, including equal pay, and failure to inform and consult under TUPE, following their mis-categorisation when the fee regime was first introduced.

To help you keep abreast of these changes and plan accordingly, see our timeline of key dates.


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