Posted by Gemma Ospedale, Partner
Employment legal update #47
Our Employment & HR team brings its monthly review of new legislation, guidance and case law.
In this month’s legal update, our Employment & HR team cover:
- Notable changes to the CJRS guidance notes
- Addison Lee appeal stymied by Uber Supreme Court decision
Commentary on recent employment law tribunal cases:
- Calculation of a Week’s Pay Regulations is not retrospective.
- Paying a man on SPL less than a women on SAL is not discriminatory.
- Are penalties for compulsory vaccination policy a breach of human rights?
- Failure to pay Police officer allowance on maternity leave.
HMRC has made minor changes to various guidance notes relating to the CJRS.
Notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. The averaging method may only be used where an employee has a relevant reference day of 2 March 2021, the same as those with a relevant reference date of 30 October 2020.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days which are taken as family-related statutory leave, “statutory sick pay leave”; or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for the inclusive period May 2021 to September 2021.
- In cases of a TUPE transfer, employers need to ensure that information needed for future claims under the CJRS is passed on to the transferee.
- A further Treasury Direction in respect of the extension of the CJRS from 1 May to 30 September 2021 is awaited.
The link to the guidance can be accessed here
Addison Lee appeal stymied by Uber Supreme Court decision
Following the decision of the Supreme Court in the Uber case, the Court of Appeal has refused permission for Addison Lee to appeal against the decision of the EAT that their drivers were limb “b” workers and that the time they were logged onto the Addison Lee portal, but had not notified the company that they were taking a rest break, was working time under the Working Time Regulations. Initially permission had been given on paper but was stayed pending the outcome of the Uber case in the Supreme Court. When this was known, the court held an oral hearing – and refused permission on the basis that, following the Supreme Court decision, the case had no prospect of success.
Calculation of a Week’s Pay Regulations is not retrospective
In Bayliff v Fileturn Ltd an employment tribunal has held that the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (the regulations which stipulate how to calculate a week’s pay during the pandemic and furlough) do not apply to the calculation of an employee’s notice pay for the period before they came into force. Where an employee was given notice before the regulations came into force on 31 July 2020, and their notice continued after that date, their notice pay only had to be calculated in accordance with the regulations after that date.
This is believed to be the first available decision on this issue. Although not binding on other tribunals, it provides useful guidance for employers who only had minimal notice of the regulations coming into force, and had to quickly work out how to calculate employees’ notice pay in the light of them.
Paying a man on SPL less than a woman on SAL is not discriminatory
In Price v Powys County Council the EAT has upheld an employment tribunal decision that paying enhanced adoption pay but not enhanced shared parental pay is not discrimination on the grounds of sex. The reason for this is the fundamental difference in the requirements and purpose of the types of leave concerned.
The male claimant brought a claim of sex discrimination on the grounds that it was directly discriminatory to pay a man on shared parental leave (SPL) less than a woman on statutory adoption leave (SAL).
The tribunal did not agree and so he appealed to the EAT which held that the purpose of the two types of leave is fundamentally different. The purpose of SPL is facilitation of childcare and giving parents greater choice. In contrast, the purpose of SAL goes well beyond childcare alone to encouraging the formation of a parental bond and preparing and maintaining a safe environment for the child.
The EAT also upheld the tribunal finding that SPL and SAL operated in very different ways. SAL can only be taken in one continuous period, can begin before the placement of a child and was an immediate entitlement on the placement of a child; all of which contrasted with the regime for SPL, where the parents are at liberty to choose the point at which they switch over and which of them takes the statutory leave.
The EAT thus concluded that the tribunal had been right to find that a woman on SAL was not an appropriate comparator for a man on SPL. The correct comparator was a woman on SPL; but as she would have received the same pay as a man on SPL under the employer’s policy, there was no sex discrimination.
Penalties for non-compliance with compulsory national vaccination policy not a breach of human rights
Although fact specific, and particularly concerning children, the decision in Vavřička and others v Czech Republic in the European Court of Human Rights is of interest in the current discussion regarding whether or not vaccination for coronavirus should become mandatory. The Court held that imposing penalties for non-compliance with a compulsory national vaccination policy does not violate human rights.
The Czech Republic has a statutory requirement for children to be vaccinated against nine diseases. Six applicants complained to the court that they had been penalised for non-compliance for various reasons. The applicants alleged that this was a breach of the European Convention on Human Rights, including the right to respect for private and family life under Article 8 and the right to freedom of thought, conscience and religion under Article 9.
The court found that the compulsory vaccination policy interfered with the claimants’ rights under Article 8. However, this interference was justified. The policy had the legitimate aim of protecting against serious disease: vaccination protects not only those being vaccinated, but also those who cannot be vaccinated for health reasons and are reliant on herd immunity. Childhood vaccination had to be considered carefully, but the vaccines in question were known to be safe and effective.
Furthermore, the policy was proportionate. The fines for non-compliance were not excessive. Although exclusion from preschool meant the loss of an important opportunity, it was open to the government to implement an exclusion policy to protect children who could not be vaccinated, and the policy did not apply after the applicants reached mandatory school age. There was therefore no breach of Article 8.
In relation to Article 9, the court noted that the applications were not based on religion and so were concerned with freedom of thought and conscience. Since the evidence demonstrated that the applicants’ beliefs lacked the cogency necessary to attract protection under Article 9, these applications were inadmissible.
This case will be of interest to those monitoring developments relating to COVID-19. Commentators have already highlighted human rights concerns over compulsory vaccination and status certification; yet this case suggests human rights issues may not bar such policies. However, the outcome in this case was fact-specific. It concerned childhood vaccination against long-standing diseases with well-known vaccines.
Non-payment of allowance was not discrimination
In Commissioner of the City of London Police v Geldart the Court of Appeal has held that the failure of the police force to pay an allowance to a police officer on maternity leave was not discrimination on the grounds of sex. It held that the reason for the non-payment of the allowance was because she was absent; and the absence happened to be because she was on maternity leave.
As a serving police officer, the claimant was entitled to payment of a London allowance as a recruitment allowance in addition to her pay. When she went on maternity leave, the force mistakenly believed that this allowance constituted pay for the purposes of the relevant Police Regulations; and paid it at the same rate as her maternity pay. She brought a claim that she should be paid the allowance in full and that failure to do so was direct discrimination on the grounds of sex in accordance with section 13 of the Equality Act. The tribunal, endorsed by EAT, upheld her claim on the basis that the amount was properly an allowance and therefore not “pay”; and so she should be paid the allowance in full. The force appealed to the Court of Appeal.
The appeal was allowed in part. The Court of Appeal rejected the appeal against the decision that the allowance should be paid in full for the entirety of her maternity leave. However it upheld the fact that her failure to be paid was not because of sex discrimination. It accepted that she was not paid because of the force’s mistaken belief the allowance was “pay”; but agreed that the reason why she was not paid was because of “absence”. The Police Regulations state that pay is only due if the employee is ready and willing to work, subject to some exceptions; and the reason she was not paid was that she was unavailable for work. It just so happened that the absence was because of being on maternity leave. To that extent her sex was part of the cause of the non-payment; but ‘but for’ causation of this kind is not determinative.
Our Employment & HR team is on hand to steer businesses through the minefield that lies ahead. Contact Partner Gemma Ospedale:
020 7842 1496 Email us
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