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.

Something else BIS missed about TUPE

The new fangled TUPE provisions contain the express ability for an employer at Reg 4(5B) to change a term incorporated from a collective agreement where (a) the variation takes effect more than one year after the transfer and (b) after the variation rights are no less favourable overall.  The problem is that complying with these requirements causes significant problems with an often overlooked section of TULRA 1992.

TUPE continues in 5(C) that “Paras (5) and (5B) do not affect any rule of law as to whether a contract of employment is effectively varied“.  Which got me thinking as to other rules of law.

One of the ones it appears BIS did not think about was Section 145B of TULRA 1992.  To save a quick rummage through the statute books, section 145B gives individuals the right not to have their employer make an offer to have any term of employment no longer determined by a collective agreement.

So, for example, individuals transfer to a new employer which wants to have nothing to do with collective agreements or trade unions.  The new employer grumbles (they usually do) but abides by the immediate terms of the collective agreement to remain on the right side of TUPE.  It then avails itself of the ability to change under TUPE 4(5B).  It makes sure the offer is not less favourable and in certain circumstances is actually more favourable as they are offering better benefits (e.g. PHI).  It would appear, however, to fall straight into the prohibition in Section 145B TULRA.

The remedy for a breach of s.145B appears somewhat confusing. Or at least it did to me.  There is the financial element (£3,600 for the employers temerity for simply making an offer in compliance with TUPE but having forgotten about s.145B and simply having made the offer) in 145E(3), which I’m calling the “temerity award”.  Then

“(4)Where an offer made in contravention of section 145A or 145B is accepted—
(a)if the acceptance results in the worker’s agreeing to vary his terms of employment, the employer cannot enforce the agreement to vary, or recover any sum paid or other asset transferred by him under the agreement to vary;
(b)if as a result of the acceptance the worker’s terms of employment are varied, nothing in section 145A or 145B makes the variation unenforceable by either party.

After a bit of double reading (and a diversion as to whether “worker’s agreeing” is grammatically correct), I would suggest (a) deals with the worker agreeing to vary, e.g. at a future point in time, but not actually varying; and (b) with when the variation has actually occurred.

If an employer complies with TUPE it can vary terms incorporated from a collective agreement, but if this means the individual will not be covered by that collective agreement then s.145B applies and prohibits the change.  But if the individual has actually varied their terms the change is effective.  If, however, the individual has not yet varied, they can presumably cherry pick the best terms and refuse to implement the variation.  Which is a bit odd or appears to contradict what Reg 4(5B) of TUPE is trying to achieve.

The only ways in which the employer avoids paying the £3,600 temerity award are, as I see it, presumably either to negotiate collectively with the trade union it does not recognise over the collective agreement it did not sign.  I can’t see a union agreeing to the change to the collective agreement.  This leaves the employer in the position of making the offer, paying the award and only then implementing the change if the employees do actually vary the contract.  Alternatively the wording of 145B(1)(a) appears to sanction picking off individual employees two by two (readers can insert their own Noah’s ark joke here) if the variations are different.

I’m unsure as to what irks me most about this.  That TUPE doesn’t work with s.145B, that I’d forgotten about s.145B altogether or that the employer will need to take a temerity award gamble on each employee’s contract it wishes to vary.  Or something else.  It might be the grammar.