2019 Half Year Review: The Employment Laws that Shook UK Businesses

Nicola Mullineux

Nicola Mullineux

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25 Jul 2019

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Since tribunal fees were abolished back in 2017, the amount of claims brought by employees has grown.

We’re just past the half-way mark for the year, and yet 2018 already feels like a distant memory. Not least because there have been some unprecedented shake-ups to employment law, and so we thought it’d be prudent to take a look at three of the most significant cases that we’ve seen so far in 2019.

Enhanced maternity pay policies not sex discrimination

CC of Leicestershire Police v Hextall / Ali v Capital Customer Management

In this joint appeal in May, the Court of Appeal held that the act of offering enhanced maternity pay to eligible pregnant, female employees but not enhancing shared parental pay didn’t discriminate against male employees.

This was because the circumstances of maternity leave are materially different from that of shared parental leave.

The Court outlined that the purpose of the enhanced maternity leave was for more than just childcare – it was to provide a mother opportunity to recover from the birth and bond with her child.

They went on to explain that equality law allows special treatment to women who have just given birth, which cannot be challenged.

This decision likely brought relief to many employers who offer enhanced rates of maternity leave and pay, confirming that they can continue to do so lawfully.

That said, employers should remember that there remain cultural calls for family friendly pay to be equalised to ensure all working parents are not making child caring decisions based on financial difficulties.

Employers must record the actual number of hours worked each day, including overtime

Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE

In another May decision, the European Court of Justice (ECJ) held that the Working Time Directive (WTD), which outlines the law on maximum working hours and minimum rest breaks, required employers to introduce a system which clearly records all of these hours in order to ensure compliance with the law.

This ruling caused a lot of confusion and panic. We’ll explain what this means, but first, let’s take a look at how the ruling came about.

Here, Spanish trade unions had brought an action against Deutsche Bank as the Bank were only recording hours worked as overtime.

Agreeing with the opinion of the Advocate General, the Court explained that using a system which records all hours worked each day was necessary to prove that employers are not breaching their WTD obligations, such as the 48-hour working week maximum.

Now, it remains to be seen what changes the UK government will make in light of this decision.

Current UK law on working time only requires employers to maintain ‘adequate’ records to cover certain areas.

That said, future enforcement of record keeping will now be done in line with this ECJ ruling and employers would be wise to review their current record keeping processes and consider if these need to be updated or amended.

Including voluntary overtime in holiday pay

East of England Ambulance NHS Trust v Flowers

In this long-awaited June judgement, the Court of Appeal upheld an earlier decision from the Employment Appeal Tribunal (EAT), finding that voluntary overtime needs to be taken into account when calculating holiday pay if it’s ‘sufficiently regular and settled’.

Although this decision only applies to the four weeks of annual leave provided by the Working Time Directive, and may yet still be appealed to the Supreme Court, employers are now encouraged to consider if any voluntary overtime worked is ‘regular’ and ‘settled’.

The Court did not provide clear guidelines on how to determine this and employers are advised to use a degree of common sense.

The more frequently the individual works the overtime, the more likely it will be viewed as ‘regular’.

The consideration for whether it has become ‘settled’ realistically will be if it is considered typical overall. Where it is irregular and unforeseen, it is not likely to count.

Expert Support

Have any of the cases above impacted your workplace? Or, are you unsure if they will? Speak to a Croner expert today on 01455 858 132 for clarity, and ensure your business remains compliant in the face of ever-changing employment law.

About the Author

Nicola Mullineux

Nicola Mullineux, as Group Content Manager, leads a team of employment law content writers who produce guidance and commentary on employment law, case law and key HR developments. She has written articles for national publications for over 10 years and regularly helps to shape employment of the future by taking part in Government consultations on employment law change.

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Nicola Mullineux

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