Employment law updates: important changes for employers

18 May 2021

Shared parental leave

The EAT has upheld an employment tribunal decision that it was not sex discrimination for an employer to pay a man on shared parental leave (SPL) less than a woman on adoption leave.

In this case, Mr Price decided not to proceed with his application to take 37 weeks SPL after his wife completed her two weeks’ compulsory maternity leave, when he was told that he would only be entitled to receive statutory shared parental pay (ShPP) and not the enhanced pay which employees on statutory maternity leave (SML) or statutory adoption leave (SAL) were entitled to receive under the employer’s family policy. He claimed that this amounted to direct sex discrimination.

Following the Court of Appeal decision in Ali v Capita Customer Management Limited, the EAT held that Mr Price’s position was materially different to someone on maternity leave because the purpose of the leave is different. The Court of Appeal in Ali had only considered SMP and not SAL, however EAT held the purpose of adoption leave is also different to SPL and goes beyond providing childcare. The EAT held that the more appropriate comparator for Mr Price was a woman on SPL and, as she would also only be entitled to statutory ShPP, there was no sex discrimination.

Although this decision may provide some reassurance to employers with policies which provide a different level of pay for SPL compared to SML or SAL, it demonstrates why the uptake of SPL has been low. The government has consulted on how to reform the parental leave and pay system but we await any further developments.

NMW and sleep-in shifts

The long awaited Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) was published on 19 March 2021.

The cases considered whether workers who sleep-in, and are only required to awake in the night to carry out duties if needed, are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Supreme Court took a purposive approach to the meaning of the NMW regulations and agreed with the Court of Appeal that the care workers were merely available for work during their sleep-in shift, rather than actually working, and they were therefore only entitled to the NMW for time spent awake and working.

(Royal Mencap Society v Tomlinson Blake)

(Shannon v Rampersad and another (T/A Clifton House Residential Home))