UK - CABLE: Current Awareness Bulletin

SHARED PARENTAL LEAVE

Ali v Capita Customer Management Ltd ET/1800990/16 Whether shared parental pay should match enhanced maternity pay

A new father wanted to take shared parental leave (SPL) to care for his baby because the mother had received medical advice to return to work so she could recover from postnatal depression - but he was only entitled to statutory shared parental pay, while mothers could take 14 weeks' enhanced maternity pay. The claimant argued that, after the two weeks' compulsory maternity leave, a man caring for his baby should get the same pay as a woman performing that role.

The tribunal concluded that in the particular circumstances of this case, the claimant had suffered direct sex discrimination.

Practical point

There are conflicting decisions at Tribunal level on this issue but it seems likely that this decision is an indication of how tribunals will respond to a sex discrimination claim by a father who intends to take on the role of primary carer after compulsory maternity leave, where a female comparator would receive enhanced maternity pay.

This case is a reminder that, with the number of new mothers and fathers seeking to enjoy SPL rights gradually increasing, employers should consider and review any enhanced pay provisions they provide, and whether or not there is differential treatment depending on the exact type of leave taken, and under what circumstances.

Click here for a detailed update on this decision.

HOLIDAY PAY

King v The Sash Window Workshop Ltd and another C-214/16 Carrying over annual leave entitlement

The claimant, engaged as a commission-only salesman, was self-employed and not entitled to paid holiday. After his dismissal, he brought a claim for paid leave for the entire 13 year period he had been engaged.

The tribunal concluded the claimant was a 'worker' and should be paid the leave he was entitled to take even though he didn't in fact take it. On appeal, the Court of Appeal referred this issue to the Court of Justice of the European Union. The Advocate General (whose decision is not binding but gives a good indication of the likely outcome of the case by the Court) said that unless the claimant was permitted to take paid annual leave, he was entitled to receive payment for holiday he hadn't taken for the whole 13 year period.

Practical point

If this Opinion is followed by the Court, it will be significant for gig-economy employers as it could result in those employers being required to pay...

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