maternity leave

Dismissed pregnant woman loses European court case

Following a claim by a pregnant woman who was made redundant by Spain’s Bankia, the ECJ has ruled that the dismissal was lawful.

 

What do you need to know

Whilst the dismissal of a pregnant worker is prohibited under the EU Directive 92/85, and covers the time between conception and the end of maternity leave, there are some exceptions.

If a pregnant worker is dismissed, but the reason for the dismissal is not connected to pregnancy, then the move does not infringe upon EU law.

Under EU law, an employer must state in writing the reason for their decision to make a collective redundancy.

They must then inform the pregnant worker of the criteria used to decided who will lose their jobs.

In this case, the dismissed pregnant worker was informed that she had been given a low score in a company assessment.

 

Lessons learned

The case is not just a reminder of the rights of pregnant workers, but also the importance of documentation.

If you’ve got to make a group of employees redundant, then you need to be clear about the basis for which you are choosing who stays and who goes.

On top of this, you need to be clear with pregnant workers, by communicating with them personally and in writing, that the reason for their redundancy is not based upon their pregnancy. Any ambiguity could be potentially harmful in the long run, so document everything well.

For plain-English, expert advice on any of the above, you can contact Alison here.

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5 of the biggest employment law cases in 2016

There have been many key judgements made in employment law over the past 12 months including cases on: employment status in the gig economy, childcare vouchers during maternity leave, enhanced shared parental pay, provision of rest breaks and the Acas code on disciple and grievance. But what were the biggest cases in 2016? We’ve highlighted five of them in a nutshell….

Uber: Employment Status in the Gig Economy

The first, in what is likely to be a string, of cases dealing with employment status in the gig economy, Aslam and others v Uber BV and others was one of the most talked about employment law cases of 2016. The successful bid by Uber drivers to be recognised as ‘workers’ and not self-employed meant that they are now able to access some employment rights such as to receive the national minimum wage and be paid annual leave. Uber was severely criticised by the employment tribunal for covering the truth about its relationship with its drivers.

Peninsula Business Services Ltd: Childcare vouchers during maternity leave

A controversial decision made by the Employment Appeal Tribunal (EAT) in the Peninsula Business Services Ltd vs Donaldson case led to it concluding that the childcare vouchers provided by way of salary sacrifice should be treated as remuneration NOT non-cash benefit. It decided that the phrases “salary sacrifice” was confusing and said that “it is in reality not a sacrifice but a diversion of salary, which the employee has earned but which is redirected prior to it being placed in the employee’s pay packet, in order to purchase vouchers.” Much to the surprise of many, the HMRC has written to the Childcare Vouchers Providers Association to say that this judgement of the EAT means that employers are no longer legally required to provide childcare vouchers during an employee’s maternity or adoption leave. Also, if they are to remove vouchers during maternity leave it will no longer be sex discrimination.

Abellio London Ltd: Provision of rest breaks

Earlier in the year a case asked is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal? The Grange v Abellio London Ltd case brought into question the scope of the right for workers to take a rest break. The EAT stated that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. According to the EAT, an employee who accepts the lack of rest break reluctantly, but doesn’t protest, is still in a position to bring a working time claim to the tribunal.

National Rail: Policy on enhanced shared parental pay

An employment tribunal awarded £28,321 to a National Rail employee (Snell) over his employer’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but only paying statutory shared parental pay to partners and secondary adopters. It has lead to questions about whether it is discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave. In the Snell vs National Rail case, the decision made by the ET in this case shows that the Tribunal do not look favourably on male and female parents being paid differently during shared parent leave. Read more here.

Phoenix House Ltd: Acas code of discipline and grievance

In the Pheonix House Ltd v Stockman and another case this year, controversy was caused when the EAT held that employers do not have to follow the Acas code where there is ‘some other’ substantial reason for dismissal. This conflicted with an earlier EAT decision in the Lund v St Edmund’s School, Canterbury case. This conflict suggests that there will soon be many other cases on the application of the Acas code where there has been a breakdown in trust and confidence.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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