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May 16 2019
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Alec Bennett looks at some key employment law developments which took place in February, including a delay to the response to the Modern Workplaces Consultation; an increase in statutory and tribunal payment figures; and two recent employment tribunal cases, the first of which looked at the complex area of protection from discrimination for those becoming parents through surrogacy and the second, at post employment victimisation under the Equality Act 2010.
The Department for Business Innovation & Skills (BIS) have now announced that the government's response to the Modern Workplaces Consultation will be delayed until spring 2012. This Consultation makes proposals for a new system of shared flexible parental leave, an extension of the right to request flexible working, revisions to the way annual leave is dealt with under the Working Time Regulations 1998 and compulsory pay audits for employers found guilty of pay discrimination.
On 1 February 2012, the Employment Rights (Increase of Limits) Order 2011 increased the rates of certain statutory payments and the limits applying to some employment tribunal awards.
In cases involving dismissal, the new figures will only apply where the effective date of termination falls on or after 1 February 2012.
In C-D v S-T, an employment tribunal has taken the decision to refer questions to the European Court of Justice about whether EU maternity and discrimination law protects a woman who becomes a mother under a surrogacy arrangement.
In the case the Claimant (who became a mother as the result of a surrogacy agreement) has argued that she should be entitled to paid maternity leave to bond with her baby, establish breastfeeding and maintain and develop her family life. This was following her employer’s initial refusal to grant her leave under its adoption policy and decision to offer support by way of a career break, annual leave, reduced hours and unpaid leave.
Specifically the Claimant argued that she had been:
She argued that her situation was equivalent to a genetic or gestational mother and she should therefore be protected by domestic legislation when interpreted purposively and consistently with the Directives.
Interestingly, the Claimant also argued in the alternative that she has been less favourably treated because of the pregnancy of the woman who gave birth to her baby. She likened this to a type of "associative discrimination" covered by discrimination law.
The ET held that domestic legislation does not apply to this situation and nor was there any specific reference to surrogacy in European law.
In these circumstances, the tribunal has made the unusual decision of referring to the ECJ the question of whether a mother expecting a baby through surrogacy is entitled to maternity leave and various benefits including paid leave.
Although still not a common occurrence in the UK (although it is not illegal, it is restricted and surrogacy arrangements are not legally enforceable) interest in surrogacy is on the increase and therefore it will be interesting to see how the ECJ responds on this already complicated issue.
In the recent case of Jessemey v Rowstock Ltd and another an employment tribunal has held that post-employment victimisation is not unlawful under the Equality Act 2010 (the Act). Although section 108 of the Act states that post-employment discrimination and harassment is unlawful, it expressly does not apply to acts of victimisation. Therefore, a claimant could not succeed with a victimisation claim based on an unfavourable reference provided by his former employer.
Following a dismissal from his employment, the Claimant brought age discrimination and unfair dismissal claims. His ex-employer then subsequently provided an unfavourable reference for him to an employment agency and as a result the Claimant lodged a further claim for victimisation.
The employment tribunal held that the unfavourable reference had been provided by the ex-employer as a result of the previous two claims having been brought against them and therefore satisfied the legal definition of victimisation. However, they went on to conclude that section 108 of the Act does not prohibit post-employment victimisation; in fact section 108(7) expressly provides that victimisation is not covered by the Act's post-employment provisions.
However, this may not be the end of the story. The pre Act
discrimination provisions, at one time, did not expressly protect
former employees but in the case of Rhys-Harper v Relaxion Group plc; D'Souza v London
Borough of Lambeth; Jones v 3M Healthcare Ltd  IRLR
484 the Supreme Court held post employment victimisation
was nonetheless covered. The claimant did not try to
argue that this case applied to the Act and so it remains to be
seen whether a different result would have been produced if that
decision had been considered by the ET. It is also important
to remember that post employment claims can be made be an
ex-employee for reasons connected to a reference from their
previous employer. Claims can be brought for negligent misstatement
where the content is deemed inaccurate; malicious falsehood if it
is maliciously untrue; or defamation if it disparages the
reputation of the subject.
Referees must therefore be able to justify and support any comments made in a reference and show that they honestly believe that the contents of a reference are true, accurate and fair. Employers should therefore ensure that have a clear policy regarding references, for example setting out who can provide them, under what circumstances and what the content can, or should, include.