This month's news round-up is brought to you by Joanna Smart and covers: 'surrogacy leave' – the latest position; age discrimination and enhanced severance payments; changes to the 'right to accompanied'; the impact of fees in the employment tribunal and updates on the Judicial Review of the legality of tribunal fees and the introduction of employer 'penalties'.

'Surrogacy' leave?

Surrogacy is still a relatively new matter in the UK and, unsurprisingly, it has become a topic of legal challenge of late, in particular with regard to how mothers having a child through surrogacy are treated in the workplace.

As the law currently stands, neither maternity or adoption leave entitlement apply to a surrogacy arrangement and nor is surrogacy specifically referred to in the Equal Treatment Directive or European case law.
Recently two separate references have been made to the ECJ on the question of whether or not maternity leave may be taken by a woman having a baby via a surrogate arrangement/and the extent to which discrimination law extends to associative pregnancy discrimination.

  • The first case is Z v A Government Department and the Board of Management of a Community School; Z is a teacher in Ireland who decided to have her genetic child via a surrogacy arrangement and wished to take paid leave when the child was born. As her contract only set out rights to maternity leave and adoption leave she was not granted this leave.  Z brought sex and disability discrimination (she has a disability preventing her from giving birth) claims before the equality tribunal who then referred the matter to the ECJ.
  • The second case is C-D v S-T. C-D was employed by an NHS Trust and became a mother under a surrogacy agreement and, in doing so, began mothering and breastfeeding the baby within an hour of birth. Her employer offered support in the form of a career break, annual leave, reduced hours and unpaid leave but did not grant her maternity or adoption leave.  She brought claims before the employment tribunal who made a reference to the ECJ.

Although the facts behind each of these references are broadly similar, the opinions of the Advocate Generals involved in each - rather surprisingly and unhelpfully – gave contradictory opinions.

  • In Z v A Government Department and the Board of Management of a Community School Advocate General Wahl's opinion was that Z
  1. did not have an entitlement to maternity leave under the Article 2 of the Pregnant Workers Directive (92/85/EEC) ("PWD") (which defines the three categories of worker who are entitled to at least 14 weeks' maternity leave under national law: a pregnant worker; a worker who has recently given birth and a worker who is breastfeeding); and
  2. was not discriminated against because of sex or disability.

In C-D v S-T, Advocate General Kokott gave the opinion that

  • under the PDA, an intended mother who has a baby via a surrogacy arrangement does have the right to maternity leave.

Advocate General Kokott also gave an opinion on the amount of leave that the surrogate mother would be entitled to and, essentially, concluded that the leave taken by her must be deducted from that of the intended mother, and vice versa.

In light of these very different opinions it appears the legal position on surrogacy has not advanced much further and it is now up to the ECJ to decide which opinion, if either, it prefers and what steps it may take in response.  Therefore, at the current time, it is difficult to predict how, if at all, UK legislation may be affected by such an interpretation.

Despite this, however, this is an area on which we have already received related queries.  As the position is unclear, employers will need to tread carefully if faced with a request of this nature and seek advice on the best way to proceed.

Lockwood v Department of Work and Pensions: age related redundancy payments

As you may recall, this was a case which we reported in our February issue earlier this year. By way of a brief reminder, the EAT found that legitimate aims had been identified by the DWP in issuing different levels of severance payments depending on the age of the employee  (because the circumstances of younger employees are materially different to those of older workers) and therefore upheld the ET's decision that the less favourable treatment of Miss Lockwood was justified for the purposes of the now repealed Employment Equality (Age) Regulations 2006 (although this case was decided under old law, the same principles would apply to the Equality Act 2010).

Miss Lockwood subsequently appealed to the Court of Appeal on two grounds:

  • the ET/EAT erred in their approach to the comparator exercise by factoring in considerations that were either directly or indirectly related to Ms Lockwood's age; and
  • the ET/EAT ignored material factors when considering the justification issue; took irrelevant factors into account; and did not approach the question of justification with sufficient rigour.

The Court of Appeal upheld the first ground of appeal while rejecting the second. 

They held that the circumstances of older employees were not materially different to those of younger employees (in respect of everything except their age) and, therefore, a comparator could be established - which meant Miss Lockwood had suffered less favourable treatment.  However, in dismissing the second ground of appeal, the CA agreed with the EAT that the less favourable treatment had been objectively justified by the DWP. By way of a reminder, the justification relied on by DWP in awarding higher severance payments to older workers was a social policy objective of providing a financial cushion that reflected the additional problems older workers experienced after losing their jobs.

The Court of Appeal's decision is a welcome one and aligns with that made by the Supreme Court in Seldon v Clarkson Wright and Jakes where it held that a law firm had legitimate aims (staff retention, workforce planning and dignity) which could potentially justify its compulsory retirement of a partner at the age of 65. Please see the May 2012 issue of Employment Eye for a summary of the Seldon case.

The Lockwood decision has also clarified the correct approach to identifying the comparator, affirming that the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all respects as the claimant save only that he, or she, is not a member of the protected class (which, in this case, was age).

The right to a companion & the Acas Code

Acas have announced that they will be amending their Code of Practice on Disciplinary and Grievance Procedures to reflect a recent EAT decision which held that the right to a companion at a grievance meeting is an absolute right, and not subject to any requirement of reasonableness. 

The case in question wasToal and another v GB Oils Ltd, which unexpectedly gave a judgment which was in direct conflict with the following wording in the Acas Code regarding the reasonableness of companions

"What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site".

The case concerned a dispute between two workers and their employer over their choice of companion for a grievance hearing.  Specifically, it focused on whether that choice of companion had to be 'reasonable' or whether it was only the 'request to be accompanied' that had to be reasonable. In the case, the employer argued that it was not reasonable to have a companion who could be prejudicial to the hearing. The EAT rejected this argument and held that there was no requirement for the choice of companion to be reasonable so long as they fell within the 'approved categories' under the Employment Relations Act 1999, which includes trade union officials, certified union representatives or fellow workers.

As can be seen from the above extract, the judgment does not align with the existing Acas Code.  Fortunately, after some deliberation, Acas have now announced that they will be amending their Code of Practice in the light of Toal; although wording has not yet been released.  Whilst the position under the Code is currently unclear, employers may be reassured that in Toal it was suggested that compensation for breach of the right to be accompanied should be a token amount where the loss or detriment to the employee as a result has been minimal (£2 was suggested).  Employers may also wish to note that the request for a companion is subject to a requirement to be reasonable (for example, it must be made in good time) and meetings may only be postponed for up to 5 days if a worker proposes a reasonable alternative time because their chosen companion cannot attend a meeting at the time proposed by the employer.

Until Acas updates its Code, employers may wish to review their disciplinary and grievance procedures to ensure any requirement for 'reasonableness' in relation to the choice of a suitable companion is removed.  If, however, you are unsure about whether, or how, your policies should be amended, please contact me or another member of the employment team.

Employment tribunal statistics

Hot on the heels of the last month's news round-up, the Ministry of Justice have published Employment Tribunal statistics for the second quarter of 2013 (July – September 2013).  Crucially, therefore, this quarter includes two months following on from the introduction of fees in the Employment Tribunal which came into force on 29 July 2013.

These statistics can be found in full here  but, in summary, it appears that despite a sharp increase of claims received in June and a high number in July (which one can safely assume was as a result of Claimants wanting to get claims in before the fees were introduced on 29 July 2013), the numbers in August and September fell.

Whilst the data does look encouraging from the point of view of employers, on the basis that fewer claims are being lodged, these figures should be read with some degree of caution.  This is because a claim is not considered as accepted in the tribunal until the fee is paid, or remission granted and, therefore, this may increase the time it takes to enter cases onto the system and so cause a delay in reporting. Therefore figures may well be revised upwards in the coming months.

Judicial Review of ET Fees

The UNISON legal challenge to the introduction of fees in the employment tribunal – as reported in our June news round-up – was heard last week but was not concluded, and will resume on 4 November 2013.
Alongside this challenge by UNISON, a Scottish solicitors practice, Fox & Partners, also brought judicial review proceedings against the introduction of fees.  However, in light of the listing for the UNISON challenge, the Court of Session has taken the decision to stay the judicial review proceedings brought by Fox & Partners on the basis it raised the same issues as the judicial review brought by UNISON in the High Court in London.

Date for employer penalties announced

The government has announced that it intends to implement section 16 of the Enterprise and Regulatory Reform Act 2013 (ERRA) in January 2014.  This is the section of the ERRA that relates to fines for employers who seriously breach their workers’ rights where there are “aggravating features”. The additional penality will be 50% of any award, with a cap of £5,000, but this would be halved if paid within 21 days.

 If you want to talk about this article please contact Joanna Smart.  

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