Shared Parental Leave and sex discrimination, the new Judicial Assessment regime and the duty to disclose non-British workers in your business.

The good

A new protocol has been introduced in the tribunal which will allow a Judge, with the agreement of the parties, to make a provisional assessment on the merits or otherwise of a case and remedy. The aim is to attempt to encourage settlement between the parties at an earlier stage in proceedings, saving everyone time and money. This is good news for employers who often feel that unrepresented parties would benefit from some practical guidance in the event of a claim lacking merit. However, it can equally apply where an employer’s defence is weak.

The assessment is given without an evaluation of the evidence and is not binding. It cannot be referred to if the case proceeds and the Judge in question can not ultimately be involved in the final hearing. Such assessment would only take place after the issues had been clarified and case management order timetabling issues such as disclosure of documents had been dealt with, usually during a preliminary hearing.

The bad

The Shared Parental Leave Regulations allow the parents to share the care of their child in its first year of life, by allowing the mother to forfeit part of her maternity leave and transfer some or all of it to the father, in one continuous block or in smaller chunks. Some employers allow the mother to take her share of any such leave at enhanced rates to mirror their company maternity policies. Network Rail adopted such a policy but indicated that male employees taking such leave would only receive payment at the statutory rate, in accordance with their minimum legal obligations . Both parents worked for Network Rail. Mr Snell, the father, claimed indirect sex discrimination. By the time of the hearing Network Rail conceded the policy was discriminatory and Mr Snell was awarded just short of £30,000, £6000 for injury to feelings and the remainder to cover the difference in pay rates.

Whilst the decision is not binding, it is interesting that the company decided to drop its argument that there was no discrimination as the correct comparator was a female taking shared parental leave who was neither the mother nor primary carer, and their argument that even if discriminatory, the policy was justified as a proportionate means of ensuring the retention of female employees in a male dominated environment. The arguments have never therefore been decided upon. Instead, employers are now even more likely to remove enhanced pay rates for shared parental leave in their entirety to remove any risk of claims, thereby making the likelihood of employees taking up such arrangements even less likely for financial reasons.

The ugly?

It appears that the Government has watered down proposals that would require employers to disclose details as to what percentage of their workforce is non-British, publish a breakdown of the nationality of their workforce and be required to provide training to British workers and recruit locally, rather than from abroad.

Suggestions had been made that employers that failed to comply could have been named and shamed by the Government. It has now been clarified that that would not be the case. The reasoning behind the idea is said to be a way of encouraging better behaviour and upskilling the local labour force. Critics have called it ‘unsettling’, suggested it will encourage xenophobia and would drive people and business out of British Society. A few have compared the policy to that metered out by Hitler’s Third Reich. Those businesses that rely heavily on the use of foreign workers will need to watch this consultation carefully.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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