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Employment Update for Small Businesses
June 2019

Dear Subscriber

This month, we have a couple of interesting case reports – one from Europe and one from our own Court of Appeal.  Discrimination in favour of women on maternity is the argument in one case, and there is worrying news from Europe that could create a headache for employers.

Also, Lindsey would like to say a big thank you to those of you who sponsored her Yorkshire Three Peaks challenge, she successfully completed the challenge and easily passed her sponsorship target, but she wouldn’t say no to any further contributions if anybody would like to support two excellent charities by clicking here.

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Peter Etherington
Tel: 01664 668164


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Peter Etherington
Maternity Pay v Shared Parental Pay
Can employers pay different rates?
Most women on maternity leave are entitled to Statutory Maternity Pay (SMP) but some employers choose to provide an enhanced level of maternity pay. Some of them have had enhanced schemes for many years which predate the introduction of Shared Parental Leave and Shared Parental Pay (ShPP), and they may pay just the statutory level for men (and women) who take Shared Parental Leave. There have been a number of claims from men in recent years arguing that this difference between enhanced maternity pay and ShPP amounts to sex discrimination.

Two claims (Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall) have now been heard in the Court of Appeal which has decided that this does not amount to direct or indirect sex discrimination, nor does it amount to a breach of equal pay (the legal requirement to pay men and women equally for work of equal value). The Court of Appeal confirmed that women on maternity leave are in a special position that does not bear comparison with anybody else. Maternity leave is granted to women in connection with childbirth, and is not (as was argued) merely intended to give them time off to care for a child in a similar way to Shared Parental Leave. So the claims of discrimination, which compared women on maternity leave with men on Shared Parental Leave, have been rejected.

If you have an enhanced maternity pay scheme for your employees, this decision provides reassurance and confirms that you do not have to enhance other types of leave to bring them in line with the level of maternity pay.

Must You Record Actual Hours Worked?
Working time compliance – are changes imminent?
The European Court of Justice (ECJ) has recently decided a question on working time which could have significant consequences for employers in the UK. The EU’s Working Time Directive was brought into UK law by the Working Time Regulations, and they set out restrictions on working hours, entitlement to breaks and rest periods, etc. In Federacion de Servicisos de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the CCOO trade union argued that the employer is obliged to record the actual hours worked by staff on a daily basis in order to comply with the Working Time Directive. The ECJ agreed saying that otherwise it would not be possible to determine “objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime”. That would mean it would be impossible to establish with any certainty whether the rights conferred by the Working Time Directive were being complied with by the employer.

The Working Time Regulations do not place such a requirement on employers in the UK, so the Government may now have to amend the Regulations to properly comply with the Working Time Directive. The ECJ has left it for member states to determine what form any system of recording time should take. It may, however, be possible for the Government to derogate from the Directive to avoid such a change but that is not certain at the moment.  We will keep you updated!

National Minimum and Living Wage Rate​s
The current National Living Wage and National Minimum Wage rates are:

  • £8.21 per hour for workers aged 25 and over
  • £7.70 per hour for workers aged 21 to 24
  • £6.15 per hour for workers aged 18 to 20
  • £4.35 per hour for workers aged 16 and 17
  • £3.90 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.