HR briefing

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.

In the courts

Recording working time

In our March update, we looked at an European Court of Justice (ECJ) case in which the Advocate-General had given an opinion stating that employers must keep a record of all working time, not just in relation to night work and the 48-hour limit (the current UK requirement under the Working Time Regulations 1998). The ECJ has now upheld that opinion, concluding that the Working Time Directive obliges employers to set up an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured". The UK regulations therefore appear to be deficient in only imposing relatively limited record-keeping obligations on employers. This is one of a number of deficiencies that have been identified in litigation - several aspects of the UK holiday pay regime are also inconsistent with the Directive's requirements. Where UK law is incompatible with EU obligations, the government typically seeks to amend the defective UK legislation.  Working time is, however, a particularly contentious area in which there has been no legislative development since the last white paper and consultation in 2011. It remains to be seen what approach government will take to the latest developments.

Territorial scope of UK employment law

Many employers have highly mobile workforces. A critical question is when UK employment law will protect UK national working overseas; a question made harder by the lack of any specific drafting in the primary UK employment statutes as to their territorial scope. In general, employees will fall within the ambit of UK employment legislation if the connection between their employment and the UK regime is sufficiently strong, and stronger than the connection with any other country's system of law. The categories of employee who might typically come within that include expatriate employees posted abroad or employees working in a UK enclave overseas. The Court of Appeal has recently applied these concepts to an employee seconded from the Foreign Office to the EU's mission in Kosovo. The employee sought to bring whistleblowing detriment claims in the UK against both the Foreign Office and the colleagues she had accused of wrongdoing. The Court concluded that the only point of commonality between the claimant and her colleagues was their work in Kosovo, so that Kosovan law was the most appropriate employment regime in this case. Each case is highly fact-specific, and clients with mobile workforces should consider at an early stage which law is likely to apply to which employees so that they can manage those employees in compliance with the relevant regime.

Shared parental leave

The Court of Appeal has given its first judgment on the important question: is it discriminatory to enhance maternity pay, but not pay for shared parental leave (SPL)? Its decision was an emphatic no. In relation to direct discrimination, the Court held that the Equality Act's special treatment provision (in s.13(6)), and the fundamental difference between the two types of leave - maternity leave being a measure promoting the health and safety of mother and child, SPL being a childcare system - meant there could be no proper comparison between them. The Court found the complaint was essentially a contractual one - pay being enhanced in one circumstance but not in the other. That brought the claim within the scope of the equal pay, which contains the same special treatment provision allowing beneficial terms for women in connection with pregnancy or childbirth. That provision was a total defence to any equal pay claim. The pay disparity was not really indirect discrimination either, as both men and women on SPL would be entitled to the same benefits. However the Court noted that even if there had been indirect discrimination it would have been objectively justified by the public policy of protecting women who have recently given birth. The employers in this case therefore won a convincing victory. Although leave to appeal to the Supreme Court has been sought by the employees, this judgment will give employers more confidence in structuring maternity, paternity and SPL policies to suit the particular demands of their own workforces, rather than being compelled to adopt the same pay methodology for each type of family-friendly leave.

In the news

Pregnant workers and new mothers

The Trade Unions Congress and Maternity Action have produced a guide for employers to highlight some of the risks facing pregnant workers or those who have recently given birth. The guide includes recommendations to limit unsociable working hours, limit commuting times, control workplace temperatures and limit stress. The last of those is likely to be the most difficult to implement in practice.

Separately, the Women and Equalities Select Committee has endorsed the government's proposal to extend the protection currently available for those on maternity leave where a redundancy situation arises. The right to be offered a suitable alternative role (if one exists) is currently only available during maternity leave, but the government intends to increase the period until six months after the employee returns to work. The committee's report also endorses the proposal to extend that same degree of protection to employees on adoption leave and shared parental leave. The committee's chair, Maria Miller MP, has also introduced a Bill reflecting those proposed changes to the law, but going further by prohibiting redundancies entirely in the protected period. That would substantially change the present position, and the Bill's progress through Parliament will be closely watched.