Qualifying Armed Service

There was much (well some) fanfare following Redfearn v UK [2012] ECHR 1878 when the qualifying period for unfair dismissal was removed where the sole or principal reason for dismissal was due to a person’s political affiliation. It didn’t become “automatically unfair” so could still be an “ordinary” unfair dismissal on normal principles, although presumably it would have to be argued as some other substantial reason; the sole or principal reason not being one of the usual list of conduct, capability etc.


Whilst not entirely overlooked, a similar provision is likely to be quietly introduced in respect of members of the Reserve Forces – something that was envisaged by craighrb on my last blog on the subject.


Section 48 of the Defence Reform Act 2014 introduces an identical right in respect of dismissals where the sole or principal reason for the dismissal of an employee:

is, or is connected with, the employee’s membership of a reserve force…

 The provision is not yet in force. The only commencement order currently made does not apply to the new right. There has been discussion about how much further the employment rights of reservists could be extended. In the second reading debate, the then Shadow Secretary of State for Defence raised the prospect of what would appear a right not to be subjected to detriments on the same grounds. There was a proposal in committee to amend section 39 of the Equality Act 2010 so that discrimination in employment on the basis of membership of the reserve forces would become unlawful. That proposal. as well as a proposal to give the right to time off for training, were both defeated; the latter both in the Commons and in the Lords.


What could have been a wide ranging change has remained quite narrow. It’s also of questionable value bearing in mind the right to reinstatement contained in the Reserve Forces (Safeguard of Employment) Act 1985. In practice, any member of the reserves is going to be much better off getting what is (in most cases) going to be a guaranteed return to a job. Bearing in mind that on average fewer than 10 employees are reinstated each year, and bearing in mind that there are no fees to start a Reinstatement Committee case, the new change to the qualifying period seems to be very much the poorer relation.

ET fees income: don’t spend it all at once, Chris

In recent months, faced with a strong aversion to transparency and openness on the part of the Ministry of Justice, there has been much speculation about just how much money the Ministry is making from its justice-denying ET fees regime. Well, there has been in my house. Back in 2012, officials indicated that they were looking to receive at least £10 million a year in ET fees, whilst the Ministry’s original ‘cost recovery’ target of 33 per cent implied an annual fee income nearer to £25 million. But, with the startling drop in the number of claims since the introduction of fees in July last year, even the lower of these two figures has looked increasingly unrealistic.

In May, the justice minister, Shailesh Vara, declined to answer a parliamentary question by shadow justice minister Andy Slaughter seeking a fee income figure to date, on the grounds that “financial information relating to fees and remissions in the ET system will be published [in July] by HMCTS in its Annual Report and Accounts”.  Well, that 108-page report, covering the financial year 2013-14, has now been published by HMCTS.  And, buried away on page 85, there are some interesting figures on ET fee income and remission up to 31 March 2014.

In the eight-month period 29 July 2013 to 31 March 2014, gross income from ET fees was £5.149 million, of which £0.680 million (13.2 per cent) was foregone in fee remission.  That represents an actual ‘cost recovery’ of just 6.7 per cent of the ET system’s total cost of £76.364 million, well below the Ministry’s original target of 33 per cent.

The proportion of fee income foregone in fee remission (13.2 per cent) is also strikingly low, given that, as late as September 2013, the Ministry was predicting that 31 per cent of all ET claimants would qualify for full (25 per cent) or partial (six per cent) fee remission.

Furthermore, we already know, from one of the parliamentary questions by Andy Slaughter that the Minister did deign to answer in May, that the Ministry spent £4.4 million on new IT systems to “support the processing of fee receipts and remission applications across the ET system”. Take that away from the net fee income (gross income – remission) of £4.469 million, and Chris Grayling was left with just £69,000 to cover the staff and other operational costs associated with processing fees and remission applications over the eight months up to 31 March 2014.

In short, it seems highly likely that the Ministry made a net loss on ET fees in 2013-14. Clearly, things can only get better from now on, as most of that capital expenditure of £4.4 million will not be repeated in 2014-15 and beyond. And, of course, the above figures take no account of the operational cost savings to the Ministry associated with tumbleweed blowing through near-empty ET hearing rooms – the real policy intention. As recent speeches by BIS minister Matt Hancock and others have indicated, the Conservative side of the Coalition Government, at least, appears to be very pleased with the overall impact of the ET fees regime, including the 80 per cent drop in claims.

So I don’t expect Chris Grayling to be the least bit bothered about the somewhat less than impressive financial figures noted above. To my mind, their primary significance lies in the implications for any alternative fee regime that might be brought in by any alternative government elected in May 2015. Assuming the number of claims remains at much the same (low) level as now, a net fee income over eight months of £4.469 million implies an annual net income of some £6.7 million. Unless that £6.7 million can be found from savings made elsewhere in the Ministry’s budget, any alternative fees regime is likely to have to generate at least most of it.

Then again, the Lord Chancellor may be humiliated by UNISON in the Court of Appeal later this year, and this blog post will not even rate a footnote in history. I’ll settle for that.

Does the hand that rocks the cradle get the pay?

One of the perils of being an employment lawyer is sometimes you spend time thinking about a conundrum caused by changes to the law before concluding it probably ultimately does not matter. The rights a man might have to any enhanced pay during shared parental leave is probably another one of those situations. If an enhanced maternity pay scheme provides for full or enhanced pay for, say, the first 26 weeks of maternity leave, what rights does a man who takes shared parental leave have to the same benefit when his time off is during that period?

The father could argue he has been directly discriminated against on the basis the mother would have received the enhancement. But I am not so sure. Is the correct comparator in this situation a woman on maternity leave, or a woman on shared parental leave? If a man on shared parental leave cannot compare himself to a woman on maternity leave his direct discrimination claim stops there. It is clear that there is nothing in the Equality Act to prevent a comparison being made between a man on shared parental leave and a woman on maternity leave; as the EAT said in de Belinwe see no conceptual objection to a man bringing a sex discrimination claim by reference to the more favourable treatment of a colleague on account of her being pregnant or on maternity leave. Those are, as the Claimant says, gender-specific criteria, and discrimination by reference to them is, other things being equal, sex discrimination“. It is arguable, however, that the more appropriate comparator is a woman on shared parental leave. But as the ECJ in Roca Alvarez commented, the positions of male and female parents of a young child are comparable with regard to their possible need to reduce their daily working time to look after the child, which lends support to the argument that there is no reason why a woman on maternity leave could not be an appropriate comparator.

Assuming that comparison can be made, section 13(6) of the Equality Act comes in to play. It specifically states where it is a man complaining of discrimination “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.“.
The scope of that special treatment is, however, restricted as the EAT in de Belin and the ECJ in Roca Alvarez made clear. Shared parental leave allows either parent to take time off to care for the baby once the two week compulsory maternity period is at an end that suggests a distinction between maternity leave (time off to recover from the physical trauma of childbirth and to breast feed) and parental leave (time off to care for the child); at some point after the birth, maternity leave must be more akin to Roca Alvarez/ Makin parental leave. Arguably therefore the special treatment exception cannot allow an employer to treat women on maternity leave more favourably than, for example, a father who takes time off to be the primary childcarer when his child is 3 months’ old. There may be arguments to be had about the point at which ‘special treatment’ is no longer necessary, but I suspect any judicial attempt to define the exact point as being anything other than the 2 weeks immediately after the birth might be as laughable or as concerning as the old cases on a maternity comparator.

Ultimately, however, the reason all this may end up being legally interesting (if you’re a geek) but largely irrelevant is that presumably the man’s claim succeeds in any event as one of indirect discrimination. If the enhancement is paid to anyone on “maternity leave” (as most policies describe it) this is a provision, criterion or practice for the purposes of Section 19 of the Equality Act with which a man cannot comply. A man is clearly put at a disadvantage as he does not receive the enhanced maternity pay. I do not consider that an employer could sustain a justification for the different treatment for the same reason that the special treatment argument fails; at some point after the birth, maternity leave is actually more akin to Roca Alvarez/ Makin parental leave and there is no reason for treating women on maternity leave more favourably than men on shared parental leave which does not rely on the very gender stereotypes regarding care of children which shared parental leave is intended to work towards eradicating.

Comments and thoughts welcome. I have not seen anything where anyone nails their colours to the mast on the direct/indirect point.  But query whether that’s because it doesn’t matter.