Articles | Employment bulletin December 2014

This month we look at the new system of shared parental leave, plus work-related illness, vexatious claims and the treatment of women on maternity leave during a redundancy exercise.

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Louise Smyth

Louise Smyth

Coming Soon – Shared Parental Leave

New rules apply from April 2015

Shared parental leave

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The new Shared Parental Leave Regulations 2014 finally came into force earlier this month. Under the Regulations, mothers and adopters expecting a child to be born or placed for adoption on or after 5 April 2015 can choose to end their 52 weeks’ maternity or adoption leave at any point (after an initial two weeks’ period of compulsory leave) and convert their remaining leave into shared parental leave which can be taken by both the mother or adopter and their partner or the father of the child in alternating or overlapping blocks.

To take shared parental leave the mother or adopter and their partner must satisfy certain eligibility criteria (which broadly mirror current requirements for maternity and additional paternity leave). Shared parental leave attracts statutory shared parental pay on the same terms as statutory maternity pay.

When requesting to take a block of shared parental leave, a qualifying employee must give their employer at least eight weeks’ notice in writing. Employers cannot refuse a request to take a continuous period of leave, but can refuse a request to take a number of separate blocks of leave. However, because up to three notices to take leave are permitted, qualifying employees can circumvent a potential refusal by serving three different notices in respect of three different blocks of leave.

The government claims that the introduction of shared parental leave will encourage parents to share the responsibilities for childcare more evenly. However, some commentators have speculated that cultural expectations and financial concerns may prevent many men from asking for extended leave to care for a new child.

Although employers cannot predict the popularity of shared parental leave, planning ahead for the new system may help to avoid potentially costly and time-consuming disputes. To help employers get up to speed, the government has published a brief employer guide (read more). Employers will also need to update their maternity, paternity, adoption and parental leave policies to encompass the forthcoming changes, which include the abolition of additional paternity leave. To learn more, come along to our New Year breakfast seminar, to be held in conjunction with CIPD (read more).

Liability for work-related illness

When is the employer at fault?

Work related illness

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When employees are suffering with work-related stress and other mental health illnesses brought on by their employer’s conduct, employers need to be wary of potential claims. A recent case in the Court of Appeal sheds some light on the key issues that courts and tribunals will consider in determining an employer’s liability.

The case concerned Mr Yapp, a former British High Commissioner in Belize. Following allegations of misconduct, Mr Yapp was unfairly withdrawn from his post, causing him to develop a depressive illness. Mr Yapp suffered losses as a result of his illness and brought a claim for damages against his employer. The Court of Appeal was asked to decide whether Mr Yapp’s losses due to his illness were too remote from the employer’s original breach of contract to justify recovery of damages.

Explaining the law on remoteness, the Court noted that different tests applied in contract and at common law. The test at common law, which was more favourable to Mr Yapp, was whether it was ‘reasonably foreseeable’ that he would suffer the illness he did as a result of his treatment.

The Court noted that while the withdrawal of Mr Yapp’s post was a major setback and bound to cause distress and anger, it was not tantamount to dismissal. Taking into account the absence of any evidence to suggest Mr Yapp might be particularly vulnerable, it held that Mr Yapp’s depressive illness was not reasonably foreseeable and that he was not entitled to recover damages at common law. As the test in contract was more exacting, it followed that he was also unable to recover damages for breach of contract.

While the decision may give some comfort to employers, the Court emphasised that each case will turn on its own facts. If an employer’s conduct is particularly devastating, even a robust employee could foreseeably develop an illness. Where an employee has a history of mental health problems, or appears vulnerable, employers should think carefully about the potential implications of serious disciplinary action.

Redundancy: when two become one

Do employees on maternity leave have special protection?

Two become one

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Section 18 of the Equality Act 2010 protects a woman from discrimination because she has sought to exercise, is exercising or has exercised her right to maternity leave. Regulation 10 of the Maternity and Parental Leave Regulations 1999 provides that where an employee is on maternity leave and cannot return to her role because it is redundant, she is entitled to be offered alternative employment. The work should be suitable and appropriate for her to do in the circumstances and should be on terms which are not substantially less favourable than her previous terms of employment.

In a recent case, a claimant worked for Sefton Borough Council (SBC) who undertook a redundancy and reorganisation exercise. One of the changes made was to abolish the claimant’s role, as well as that of a colleague, Mr Pierce, replacing them with a new combined role. Both employees were notified that they were at risk of redundancy, at which time the claimant had begun maternity leave. SBC interviewed both employees and decided that Mr Pierce was better qualified for the new role. They offered him the position, dismissing the claimant as redundant. The claimant argued that the dismissal was automatically unfair because the new role was a suitable alternative vacancy which SBC were obliged to offer her under Regulation 10, and that it was directly discriminatory under Section 18.

SBC argued that the claimant’s rights under Regulation 10 were not engaged as she was not redundant until they had decided who would be taking on the new role. The Employment Appeal Tribunal (EAT) disagreed, stating that the claimant was redundant once SBC had decided that two roles would be replaced by one and her rights were accordingly engaged at that point. The EAT held that the new role was a suitable alternative vacancy which should have been offered to the claimant. It found that SBC’s failure to offer the claimant the new role was a breach of Regulation 10.

The EAT remitted the second part of the claim back to the previous Tribunal on the basis that it had assumed wrongly that a breach of Regulation 10 meant there must also have been a breach of Section 18 (i.e. discrimination). The EAT found that to make such an assumption went beyond the language of the statute and that, while the claimant’s maternity leave was the context for her unfavourable treatment, it did not automatically follow that her unfavourable treatment was “because of” her maternity leave.

Employers need to be aware of when an employee will be deemed redundant to ensure that protection enjoyed by women on or recently returned from maternity leave is considered before offering alternative employment and/or letting anyone go.

Tackling Vexatious Claimants

Attorney General fights back

Attorney General fights back

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The Attorney General has the power to apply to the Employment Appeal Tribunal (EAT) for a Restriction of Proceedings Order against a serial vexatious litigant, to prevent him or her making further claims. An application can be made if a person habitually, persistently and without any reasonable grounds institutes vexatious proceedings (whether or not against the same or different respondents).

Last month the Attorney General brought proceedings against Mr Groves on the basis that he had persistently and without reasonable grounds issued vexatious applications. Mr Groves had brought nineteen claims and numerous appeals within a period of five years, including eight claims against the Ministry of Justice within a single year.

The EAT reviewed the claims Mr Groves had brought previously. In several he had pursued appeals without any prospect of success, whilst many of the claims he had made involved either identical or very similar complaints. In reaching its decision the EAT took into account the significant inconvenience and harassment caused to the Respondents on the receiving end of Mr Groves’ claims. The EAT noted that there was a pattern to Mr Groves’ claims: Mr Groves applies for a job, he is turned down, and he accuses the employer of some form of unlawful discrimination or another. The EAT further noted that in some instances, Mr Groves had shown very little genuine interest in securing the job applied for. A number of claims by Mr Groves had also been withdrawn, but only after the respondent had been put to the inconvenience and expense of pleading answers to them. The EAT held that Mr Groves’ appeals were plainly misconceived and were brought as “a knee-jerk reaction...to any adverse decision made against him”. It granted a restriction order to prevent him issuing any further vexatious proceedings.

This is not the first decision of its kind. Earlier this year the EAT issued an order preventing a claimant from bringing any further employment claims for an indefinite period after he had brought 30 claims within a period of 4 years, none of which were successful.

Although it is rare for a Tribunal to grant a restriction order, these cases demonstrate that the Tribunal is willing to make such an order where claimants display clear and consistent examples of vexatious behaviour.

And Finally, Merry Christmas…

A reminder not to wake up with an employment law hangover.

christmas party

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The Employment team at FSP wish you all a very merry Christmas. As the festive period gets into full swing, do remember that our timely advice last Christmas still holds true (read more)