Employment Brief – Spring 2018


Welcome to our latest round up of employment law and cases. In this edition we consider the important judgment relating to shared parental leave and whether it is discriminatory to pay enhanced maternity pay but only statutory shared parental pay. We have also considered the important changes in relation to the tax treatment of payment in lieu of notice and the latest cases on perceived discrimination and the effective date of termination. Finally we have also issued some practical guidance for employers on the GDPR.

If you have any questions on the matters raised in this briefing please speak to your usual contact in the Employment & Pensions Team.

Click here to read Devonshires full briefing.

Features articles listed below.

Shared Parental Leave & Discrimination

Direct Discrimination: Ali v Capita

Mr Ali’s wife suffered from post natal depression and had been advised to return to work to deal with this. Mrs Ali transferred the balance of her maternity leave to Mr Ali under the statutory shared parental leave scheme. Under Capita’s shared parental leave policy, Mr Ali was allowed to take two weeks’ fully-paid paternity leave following the birth of his child, followed by a number of weeks’ annual leave.

Mr Ali asked Capita for his shared parental leave pay to be enhanced and for him to be paid the same higher rate as a woman on maternity leave. He raised a grievance which was rejected. He then issued proceedings claiming both direct and indirect discrimination.

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Payment in Lieu of Notice (PILON)

Taxation of Termination Payments.

From April this year, all payments in lieu of notice (PILON) payments are now subject to tax.

This change is designed, in the words of the government, to “simplify and tighten” the rules around the taxation of termination payments and represents is a significant change from the previous position where different arrangements applied depending on whether there was a PILON clause in the employee’s contract.

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Perceived Disability Discrimination

Disability under the Equality Act

A person is disabled for the purposes of the Equality Act 2010 (‘the Act’) if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. This means that just having a particular medical condition does not automatically mean that a person is disabled as the effect on their abilities must be considered.

However, progressive conditions do fall under the definition of disability. These are conditions which have some impairment or effect on a person’s day to day activities currently and are likely to have a substantial adverse effect in the future.

If an employer treats an employee or applicant less favourably because of a disability, this will be in breach of the Act. They will also be in breach should they treat an employee less favourably because they perceive that person to have a disability, even if that person does not actually have a disability.

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Effective Date of Termination: Cosmeceuticals Limited v Parkin

When does a dismissal occur?

Under the Employment Rights Act 1996, an employee will be dismissed if their contract is terminated by the employer, with or without notice.

In assessing whether a dismissal has occurred, the tribunal will consider whether the employee’s contract has been withdrawn or removed from them and whether this has been communicated to the employee. For example, removing an employee from the payroll, issuing a P45 or ending the current post in order to offer a new position have all been found to amount to dismissals.

Although the employer’s conduct or words in terminating the contract does not have to be completely unambiguous, the tribunal will take into account whether an objective observer would consider the employee had been dismissed.

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GDPR is here

Data Protection and Retention Policies

The GDPR makes wide ranging changes to the basic data principles and the rights of individuals in relation to data. A new Data Protection Act, which will sit alongside and expand upon some areas of the GDPR, is also due to be brought into law in May 2018.

This means that data protection policies written to comply with the Data Protection Act 1998 will need to be updated. For example, any internal data protection policies will need to replace reference to the principles under the 1998 Act with the principles under the GDPR and should cover the bases on which the organisation will process personal and sensitive information.

Additionally, any internal data protection policy should cover how the employer will deal with criminal records information relating to staff, the obligations on employees to comply with the policy and consequences for failing to do so, and who employees should contact if they wish to exercise any of their rights or to report a data protection breach.

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