Employment Law Update – February 2020
We are pleased to provide you with the Herrington Carmichael employment law update for February 2020.
This is a key note summary of some of the main developments in employment law in the last month.
1. Bereavement Leave
The Government has published new draft legislation to provide a statutory minimum level of paid leave for parents who suffer the loss of a child. This is proposed to be in force from 6th April 2020.
The legislation will create a right to two weeks’ leave if a working parent loses a child under the age of 18, or suffers a still birth after 24 weeks of pregnancy. Leave can be taken either in a block of two weeks, or in two separate blocks of one week. Workers who have been employed for a continuous period of at least 26 weeks at the statutory rate of £148.68 per week, or 90% of average weekly earnings, where this is lower. Workers who have not been employed for a continuous period of at least 26 weeks will still be entitled to two weeks’ unpaid leave.
Whilst many employers do already provide bereavement leave for far wider circumstances, it is not necessarily standard practice. These changes will provide some, albeit limited, protection for all workers. It is recommended that employers review their existing policies in light of the change here.
2. Off payroll rules going ahead
The Government has launched a review into the upcoming off payroll rules which are set to come into force from 6th April 2020. The Financial Secretary to the Treasury, Jesse Norman, however, has stated that: ‘the purpose of this consultation is to make sure that the implementation of these changes in April is as smooth as possible’. This should end all speculation of a possible government U-turn on the off-payroll rules.
Under the new legislation, the private sector will be brought in line with the public sector in relation to the IR35 tax regime, which will imply new requirements on to fee-payers in a consultancy arrangement. The new legislation will shift the burden of determining an individual’s employment status from the individual, to the end user.
For the best possible chance of avoiding liability, companies should now be considering how their business is structured and how they currently engage with contractors or consultants.
3. Disability Discrimination – Tesco Stores Limited v Tennant
The Employment Appeals Tribunal has held that when bringing a disability discrimination claim, a Claimant must show that their condition had a ‘long-term effect’ at the time of the alleged act of discrimination. In Tesco Stores Limited v Tennant, the Claimant brought proceedings for disability discrimination and harassment based on actions she alleged her employer took from September 2016. The Employment Tribunal found that the Claimant was disabled at the relevant time of the alleged acts of discrimination, finding specifically, that from 6th September 2016, she suffered an impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities and was ‘long-term’ under the Equality Act, because by September 2017, it had lasted 12 months.
Tesco appealed on the basis that in order to claim disability discrimination, the Claimant must be disabled at the time of the alleged act. As the required effect of the impairment would have had to have lasted 12 months before she could be considered disabled, the EAT held that the Claimant was only disabled and could therefore only bring claims as from 6th September 2017.
It is important to note that the definition of ‘long-term’ under the Equality Act may also be satisfied as being likely to last at least 12 months. Had the Claimant’s condition been considered likely to last at least 12 months in September 2016, her claim may have been successful. However she did not have such a prognosis at the relevant time.
When bringing or defending a discrimination claim, it is important to carefully consider whether the impairment meets the definition of disabled under the Equality Act. This case has confirmed that when relying on an impairment having lasted for at least 12 months, this must be the position at the time of the alleged acts of discrimination or there must be a clear indication that the condition will likely last for at least 12 months.
4. Samira Ahmed equal pay claim
The BBC presenter, Samira Ahmed, has been successful in bringing an equal pay claim against the BBC. The claim was on the grounds that she was paid £440 per episode of Newswatch, while the male presenter, Jeremy Vine, was paid £3,000 per episode of Points of View.
The Employment Tribunal found that Samira’s work was “like work”, or work of equal value to Jeremy’s and rejected the BBC’s argument that the presenters’ roles were not comparable. Further, the Employment Tribunal stated that “the BBC found itself in difficulties in this case because it did not (and, to an extent, still does not) have a transparent and consistent process for evaluating and determining pay for its on-air talent.”
Whilst this judgement does not change the application of the law which has seen a number of high profile equal pay claims of late, it will likely increase the awareness of these types of claim further. This case underlines the importance of employers to have adequate and objective processes in place to determine pay rates.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.