Shared Parental Leave and Pay – Part 1: Eligibility

Shared parental leave and pay was introduced in December last year and will become available in respect of children born, or placed for adoption, on or after 5 April 2015.

What does this mean for employers?

The new scheme applies to all employers and allows qualifying employees to share the 52 weeks available for maternity leave between mother and father.  Similarly, the right will also extend to spouses, partners and civil partners of mothers or those who adopt.  This three part series is intended to give an overview of the system of shared parental leave and pay.  The first part deals with eligibility – who qualifies for shared leave and pay?

Who is eligible for shared parental leave and pay?

The eligibility requirements vary slightly as between leave and pay.  As with maternity leave and pay, it is possible that an employee could qualify for one but not the other.  Similarly, it is possible that in some circumstances only one parent will qualify for shared leave or pay.  Here are the requirements:-

For leave

  • The person must be an employee with 26 weeks’ continuous service as at the 15th week before the expected week of childbirth
  • They must share the main caring responsibility for the child with their spouse/partner/civil partner
  • The mother must be entitled to statutory maternity leave (“SML”) and must have cut short that entitlement – a mother will not qualify for shared parental leave if she does not qualify for SML
  • Where the mother does not qualify for SML, her husband/partner/civil partner may still qualify for shared leave if the mother is eligible for statutory maternity pay (“SMP”) or maternity allowance (and she curtails that entitlement)
  • The father/spouse/partner/civil partner must satisfy the employment and earnings test (which requires them to have been an employed or self-employed earner for any 26 weeks out of the 66 weeks prior to childbirth, and with average weekly earnings of at least £30 in any 13 of those 26 weeks)
  • The person must give a notice of entitlement and a booking notice to the employer (part 2 will cover notices in more detail)

For pay

  • The conditions above must be satisfied, subject to the following additions:-
  • The mother must be eligible for SMP – a mother will not be eligible for statutory shared parental pay if she does not meet this requirement
  • Where the mother is not eligible for SMP, the father may nonetheless qualify for statutory shared parental leave if the mother is entitled to maternity allowance and curtails that entitlement
  • An employee must satisfy the lower earnings limit for class 1 NICs (currently £111 per week) in the 8 weeks ending with the 15th week prior to expected childbirth. Note that this test is the same as that currently used to assess eligibility for SMP and statutory paternity pay.

The next part of this series will cover notice and booking leave.

Jack Boyle
Senior Solicitor – Employment Law

New Statutory Benefit Rates

New Statutory Benefit Rates

Last week, the Government announced new benefit rates for 2015.

With effect from 5 April 2015:

  • the standard rate for Statutory Maternity Pay (SMP) will increase from £138.18 per week to £139.58 per week;
  • the rate for Ordinary and Additional Statutory Paternity Pay (OSPP & ASPP), Statutory Adoptive Pay (SAP), Statutory Shared Parental Pay (SSSPP) will also increase from £138.18 to £139.58 per week.

With effect from 6 April 2015:

  • the rate for Maternity Allowance (MA) will increase from £138.18 to £139.58 per week;
  • the rate for Statutory Sick Pay (SSP) will increase from £87.55 to £88.45 per week.

Employers should be alerting their payroll to these changes now.

Jack Boyle
Senior Solicitor – Employment Law

Ridin’ Solo – ACAS Code and Companions

Any employee who is summoned to a disciplinary hearing or grievance meeting by their employer is entitled to bring a companion to the meeting.  This right stems from statute and is echoed in the ACAS Code of Practice.  The companion may be either a work colleague or trade union official.

The ACAS Code expressly states that to exercise the right to be accompanied, the employee must make a “reasonable request”.  Examples of possible unreasonable requests include employees from remote geographical areas where a more local companion is available, or a companion who might prejudice the meeting itself.

The legislation which creates the right to bring a companion says nothing about reasonableness – the right is absolute so long as the person is either a work colleague or trade union official.  Given the inconsistency between the ACAS Code and the legislation, which one should trump the other?

Guidance was offered by the EAT in Toal and another v GB Oils Ltd where it was held that the employer acted unlawfully in insisting that the employee brought a different companion from the employee’s chosen companion.  The right to bring a companion is absolute and cannot be fettered by the ACAS Code’s reference to reasonableness.

An employer who breaches the obligation to allow a companion can face an employment tribunal claim.  The tribunal has discretion to award compensation capped at two weeks’ pay (which is also subject to the cap of £464 per week).  It was suggested that Toal should be awarded £2!

Perhaps not high value claims however employers should be aware that employees have free reign to select who they wish as a companion so long as they are within the goalposts of being work colleague or trade union official.  A failure by the employer to play by the rules could potentially impact on the fairness of the dismissal.

An amended version of the ACAS Code, to reflect the outcome of Toal, was placed before Parliament last week.

Jack Boyle
Senior Solicitor – Employment Law

Fore-Caste for Caste Discrimination

What is Caste discrimination?

The Employment Appeals Tribunal recently held that although caste discrimination is not expressly stated as a protected characteristic in terms of the Equality Act, it may amount to discrimination. The term ‘caste’ is an Indian concept and is used to identify a number of different concepts. Primarily it is a social network made up of varying levels of class. A person’s class in the network is often hereditary and dependent on their forefathers rank, occupation, economic position etc. Government figures estimate that there are between 50,000 and 200,000 people in the UK who are declared to be part of the lowest caste. Caste discrimination occurs when people are treated less favourably by people of a different caste, often simply because they were born into a group of ‘lower social standing’.

Protected Characteristics

The Equality Act provides protection for nine separate protected characteristics. These are:

  1. age,
  2. disability,
  3. gender reassignment,
  4. marriage and civil partnership,
  5. pregnancy and maternity,
  6. sex,
  7. sexual orientation,
  8. religion or belief and
  9. race

If a person is treated differently for any reason outwith these nine protected characteristics, then they cannot technically raise a claim for discrimination. There has however been a recent trend in extending the scope of these characteristics. It was decided that it was possible to be discriminated against on the grounds of obesity. Now the potential for discrimination has been extended further to possibly include caste discrimination.

The decision

Under the Equality Act, race can include colour, nationality, ethnic origins or national origins. It was held by the Employment Appeal Tribunal in the case Chandhok v Tirkey that although caste is not specified as a protected characteristic, elements of caste identity may form part of someone’s ethnic origins. This would particularly be the case if their caste identity was hereditary or contained an identifiable ethnic identity. Whether someone’s caste identity will qualify for discrimination will be decided on the individual facts before a tribunal. In the past however ‘ethnic origins’ has been given a wide meaning, making it more likely for caste identity to be protected by the Equality Act.

What now?

Although cases in which caste discrimination will qualify as direct discrimination will be decided on a case by case basis, depending on whether the identity is hereditary or not, we would err on the side of caution.

Beware that although caste discrimination is not strictly covered by the Equality Act, it may still be held to be discrimination.

Be aware of any potential claims in your company and encourage people to use your grievance procedures, where appropriate.

Be fair when you receive any grievances from employees. Train your managers to treat each grievance seriously and reasonably.

Andrew Wallace
Trainee Solicitor – Employment Law

Bad Weather Policies: Let it Snow!

Desperate Dan looked like he will be needing a lemsip later today…

This morning’s drive into work was fairly terrifying.  When I left Newport, the road was black however by the time I reached the centre of town, the roads were white.  Does this snow fall spell the beginning of the cold weather?  If so, employers would be well advised to consider the repercussions of the bad weather.

Absent employees – No dough

Employees are required to attend work even in extreme weather conditions.  If an employee is unable to attend work because of bad weather, an employer is generally entitled to treat the absence as unauthorised and is under no obligation to pay that employee.  Having said that, it is always preferable to make employees aware of any bad weather policy prior to the bad weather and best practice would be to have the policy clearly outlined in writing.  Employers would be well advised to consider creating bad weather policies to cover these scenarios.  Such policies should address how the employer will treat lateness due to bad weather and what will happen with regards to pay.

Closed workplace – No go

If an employer requires to close its premises at short notice due to extreme bad weather, in the absence of express written agreement the employer still requires to pay its employees their salary.  Even if there is no work available as a result of bad weather and office closure, it would be unlawful to withhold pay without the employees’ consent in writing.  Some employers have “lay-off” clauses in their staff contracts.  Such clauses can permit employers to lay-off employees without pay.  However these clauses can be relatively complicated and an employer should take legal advice about such a clause before attempting to operate such a clause.

Untruthful employees – No snow

Occasionally employees will exaggerate the extent of the bad weather in their locality and might suggest that the snowfall is heavier than it is, in an attempt to enjoy an extra duvet day.  If an employer discovers that an employee has lied about the weather in an attempt to avoid attending work, the employer would be entitled to take disciplinary action against that employee on the basis of misconduct.  Before taking such action however, the employer would still require to conduct a full investigation and then reach a fair decision regarding the appropriate disciplinary sanction based on its reasonable belief.

School closures – No show

Whilst there is statutory protection for employees who require to take emergency leave as a result of childcare arrangements, school closures do not generally fall within this category.  Emergency leave is available when there is an “unexpected disruption to childcare” and, unless there are specific applicable circumstances, this does not expressly include a school closure.  Having said that, employers should try and be as flexible as possible with employees who are unable to attend work due to school closures.  Employers might want to encourage employees to work from home on such occasions.  Alternatively employers might want to permit employees to make up the time at a later date.  It would however be important for an employer to adopt a consistent approach when dealing with such situations.

Ultimately the handling of bad weather procedures is an opportunity for employers to enhance staff morale and productivity in the workplace by considering solutions to the climatic conditions.  Experience demonstrates that employers who deal with these issues in a fair manner have a happier, healthier workforce.  I have my fingers crossed that today’s weather was the worst of it!

Simon Allison
Partner – Employment Law