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Risk assessments for breastfeeding mothers

The European Court of Justice (CJEU) has held, in the recent case of Otero Ramos v Servicio Galego de Saude, that failure to conduct an appropriate risk assessment for a breastfeeding employee amounts to sex discrimination.

The employee in this case was an accident and emergency nurse who had made a request for an adjustment to her working pattern on account of her breastfeeding. Her concerns included the complex shift rotation system, exposure to ionising radiation, healthcare-associated infections and stress. She requested an adjusted shift pattern and preventative measures to be implemented. Her employer issued a report stating that her work did not pose any risk to her breastfeeding her child and rejected her request for an adjustment to her working conditions.

The employee filed a claim for sex discrimination against her employer, alleging that the risk assessment carried out by her employer did not comply with the requirements of EU law which provides measures to improve health and safety for pregnant and breastfeeding workers. The CJEU found that the employer had failed to perform an individual assessment of the employee’s circumstances, as required under the legislation, and rather it had conducted an assessment of the employee’s role as an accident and emergency nurse.

Accordingly, the CJEU held that failure to properly assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of EU law must be regarded as less favourable treatment and constitutes direct sex discrimination.

Risk assessments for breastfeeding mothers

Parental bereavement leave bill published by the government

On 13 October 2017, the government published the Parental Bereavement (Pay and Leave) Bill. This will offer two weeks' paid leave to any employed parent who loses a child under the age of 18.
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Parental bereavement leave bill published by the government

Shared parental pay – equal rights for fathers in sex discrimination claim

In Ali v. Capita Customer Management Ltd, the employment tribunal upheld a father’s claim of sex discrimination on the basis that his employer’s policies gave fathers on shared parental leave fewer rights to full pay than mothers on maternity leave.

Under Capita’s family-friendly policies, female employees were entitled to the option of 14 weeks’ full pay on maternity leave, while fathers were entitled to two weeks’ full pay on paternity and shared parental leave. This created particular difficulties for Mr Ali. His wife, who had intended to take maternity leave, suffered from post-natal depression and was advised by her doctors to return to work in order to recover from it.

Mr Ali asked Capita whether he could take leave to look after their child instead. Capita responded that he could take shared parental leave but would only be entitled to statutory pay, not full pay. As a consequence, Mr Ali decided not to take shared parental leave, but took other types of leave instead. His problems were then compounded by a line manager who did not appreciate how to appropriately handle an employee in a sensitive situation such as that of Mr Ali.

The tribunal held that Mr Ali was subjected to direct sex discrimination, since a female comparator in the equivalent situation would have been entitled to full pay. Capita plans to appeal the case to the EAT, referring to other cases where the EAT has supported enhanced payment rights for female employees over male employees while on leave.

As a first instance tribunal decision, this is not binding. We would recommend that employers await some appellant authority on the issue before making any changes to their existing shared parental leave policies.

Shared parental pay – equal rights for fathers in sex discrimination claim

Sisters doing it for themselves?

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Sisters doing it for themselves?

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights. This may mean, for example, that they are studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national gets permanent residence they may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, they are no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. The Advocate-General considered that the treatment of Mr Lounes’ wife (the dual national) should be no less favourable than before her naturalisation, or than would be granted to her if she were forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the court will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalising as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

EU family members’ rights

Women returners

Of the thousands of professional women currently on a career break, around 427,000 want to return to work at some point in the future. However, research shows that, upon returning to work, three in five women could end up in lower-skilled jobs and 29,000 women returners would prefer to work more hours but are unable to do so due to the lack of flexible working opportunities (click here for link to PWC’s report on women returners). At the end of January the Women and Work All Party Parliamentary Group (APPG) launched its first annual report on this very topic. The report analyses the barriers that a career break of more than six months can present to women returners and makes recommendations, both to employers and to the government, on how they can better support these women. The report also highlights the economic advantages of increasing the employment numbers of women with dependent children (many of whom take maternity leave and additional time off to care for their children). It states that an increase of five per cent could generate around £750 million in increased tax revenue and decreased benefit spending.

  1. The recommendations made by the APPG include:
    Equalising Statutory Maternity Pay (SMP) and Statutory Shared Parental Leave Pay so that couples are not penalised financially for taking Shared Parental Leave (SPL), which would therefore, hopefully, encourage take up of SPL.
  2. Bringing Maternity Allowance in line with SMP to ensure that self-employed women are not disadvantaged.
  3. That workforces with more than 250 employees should:
    1. have a carers policy detailing organisational support available for those with caring responsibilities;
    2. consider having a return to work policy; and
    3. consider having a returner programme to offer training, guidance and advice to returners.
  4. That employers should promote best practice through a flexible working Kitemark scheme with official accreditation and assessment.
  5. The introduction of penalties for employers who limit flexible working unnecessarily.
  6. That secondary schools and sixth forms should ensure information about self-employment and entrepreneurships is on the curriculum.

At this stage the recommendations are just that – recommendations – and it is unclear whether the government or employers will act on any of them. However, clearly there is an increasing and ongoing dialogue regarding recognising the value of women in the workforce and recognising that career breaks are valuable. As Flick Drummond MP said at the APPG launch, “if we want to be a happier and more successful country, we must appreciate that some people take time out of the workplace for either caring responsibilities or to pursue other interests”.

The full APPG report can be found here.

Women returners

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016

Helping mothers of premature babies manage their leave and return to work

In our article published yesterday in HR-Inform we consider whether a change in maternity law is needed to help mothers of premature babies manage their leave and return to work.

Click here to read the full article.

Helping mothers of premature babies manage their leave and return to work

Backing the bump

In the wake of recent press coverage highlighting the vast discrepancy between how employers believe they are treating pregnant employees and how such employees feel that they are actually being treated, the Equality and Human Rights Commission has launched a national campaign to encourage knowledge sharing and best practice in relation to pregnancy and maternity workplace issues.

The “Working Forward” campaign, which is being spearheaded by leading companies such as Barclays, Ford, Royal Mail, BT Group and the Nationwide Building Society, is aimed at making workplaces “the best they can be for pregnant women and new mothers” although fathers, and hopefully employers, will also benefit from the initiative.

Employers are asked to sign up and pledge their support on a voluntary basis. The Equality and Human Rights Commission has identified four key areas that can make a real difference to the experiences of employers and employees alike. Employers are recommended to take action in as little as two of these areas as a starting point. The four areas are:

  1. Demonstrating leadership from the top down: emphasising the importance of awareness of gender diversity and equal opportunity policies at all levels of the business and engendering a culture which is based on such awareness so that it becomes engrained in every aspect of the business;
  2. Ensuring confident employees: who feel able to talk about pregnancy and maternity-related issues without fear of discrimination or detriment;
  3. Training and supporting line managers: so that they can offer the support necessary to all employees who have, are going to have or are considering their options in terms of childcare responsibilities; and
  4. Offering flexible working practices: we have already seen a change in, for example, the flexible working regime to provide more employees with access to such rights, along with the introduction of shared parental leave. However, the Working Forward campaign stresses the importance of building upon such legislative changes and ensuring that flexibility is encouraged in practice and that employers realise the benefits that can flow from more flexible and agile working.

Whilst action in only two of these areas is suggested at first, it seems that once action is taken in even just one of these areas, positive steps relevant to the remaining three areas will flow from this.

The campaign forms part of a broader recognition of the issues and possible discrimination facing pregnant women and new mothers and it seems that steps are, finally, being taken to address such inequality. For example, the House of Commons Justice Select Committee has also recommended a review of the three-month time limit for bringing a pregnancy-related discrimination claim. Whilst it is hard to determine at what point this additional protection should end, it is hoped that such an extension will provide further support for women in the workplace and, most importantly, reinforce the importance of equality for all, in all aspects of employment.


Backing the bump

Keeping up with the Germans?

The Women and Equalities Committee has demanded that the government publish a detailed plan to tackle the issue of pregnant women and mothers being forced out of work by employers’ outdated attitudes.

Pregnancy and maternity discrimination is often covert and regularly disguised as redundancy. It can be gradual and intensifying, or much more sudden (usually almost immediately following disclosure of pregnancy or return to work). Sometimes employers choose to discriminate by omission, perhaps failing to address health and safety concerns they would previously have been proactive about. The covert nature of this discrimination can make it more difficult for a mother to evidence the poor treatment and feel that her only choice is to leave her role. Research by the Department for Business Innovation and Skills and the Equality and Human Rights Commission suggests that pregnant women and mothers now face more discrimination than they did a decade ago.

In Germany, women and expectant mothers can only be made redundant in specified circumstances. The protection applies from the beginning of pregnancy until four months after childbirth. Dismissals will only be approved (by the state) in rare cases such as gross misconduct by the worker or the employer getting into severe financial difficulties. Increased protection from redundancy is just one of the recommendations the Committee has put forward in the UK for consideration by the government. They have cited the German system as a positive example. It is not to say that any changes would precisely mirror the German system, but would keep the UK in line with its peers. Other recommendations include:

  • potentially extending the three-month time limit for bringing a claim in pregnancy and maternity discrimination cases;
  • substantially reducing tribunal fees for discrimination cases;
  • extending maternity-related rights to casual, agency and zero hours workers;
  • an easily accessible and formal mechanism to compel employers to deal with concerns that a mother’s or baby’s health is being put at risk by their work; and
  • the Health and Safety Executive requiring employers to undertake individual risk assessments when they are informed that a women who works for them is pregnant, has given birth in the past six months, or is breastfeeding.
  • Theresa May has promised a bold, new positive role for the UK in the world. However, this is just one example whereby it remains helpful to understand how our neighbours are working to achieve best practice in common areas. No doubt the government will want to liaise with key interest groups in the UK before formalising any proposals.
Keeping up with the Germans?