April Newsletter
Welcome
The newspapers have widely reported that the Duke of Sussex (Harry – 36, from Windsor) will take his full two weeks of paternity leave when the Duchess (Megan, 37, from Los Angeles) gives birth. A friend of the Prince (and with ‘friends’ like these…) helpfully told a newspaper “he doesn’t need to take paternity leave because he doesn’t work in the way most people do but he thinks it’s a very modern dad thing to do.” Harry hasn’t had a paid job since his Army post nearly four years ago and his voluntary Royal duties are funded by the Queen and Prince Charles so there may be some truth in that, albeit a tad literal.
It could even be a way of publicising the right of parental leave and not, as has been said, ‘virtue signalling’ on the part of the Duke. In any event, the big picture is missing from this – new dads can actually take up to 50 weeks of paternity leave (or, to give it its proper title, ‘shared parental leave’). So, far from taking his full complement, Harry is 48 weeks shy of it. Shared leave pay is currently 90% of pay for the first 6 weeks and £148.68 a week for the next 33 weeks. The two weeks paternity pay is a flat £148.68 per week. That may be the reason so many are put off from taking it (albeit possible Harry wouldn’t be troubled by this issue).
Currently only 2% of couples take advantage of shared parental leave. There is an argument that if men did take it up, it would lead to less discrimination against women in the workplace, particularly in the hiring process. 40% of mothers say they’ve been asked in interviews how motherhood might affect their work. A staggering 25% of bosses still think it’s ok to ask female interviewees if they plan to have children (Free Tip: don’t ask that question).
Online record of Tribunal judgments – the principle of open justice overrides a claimant’s right to privacy
The following case is a useful reminder to both employers and employees that for the past couple of years all judgments and written reasons will remain online indefinitely. Therefore, parties involved in Employment Tribunal proceedings may need to take this fact into account when considering whether they may want potentially unflattering or critical comments about them being publicly available.
There are only limited circumstances when this may not happen; reasons of national security or if it’s considered necessary in the interests of justice, to protect rights under the European Convention on Human Rights, or to protect confidential information.
In a recent case (Ameyaw v Pricewaterhousecoopers Services Ltd) the Employment Appeal Tribunal had to determine an application by a claimant to remove a judgment which referred to her disruptive behaviour at a preliminary hearing from the online register.
New ACAS guidance on neurodiversity in the workplace
ACAS has published new guidance on handling neurodiversity in the workplace. Neurodiversity refers to the different ways the brain can use and interpret information and manifests itself in such conditions as attention deficit disorder, autism, dyslexia and dyspraxia. The new ACAS guidance explains what neurodiversity is and highlights the different types of neurodivergence and the unique difficulties they may bring.
The guidance is a short read (2 pages) and sets out the importance of employers taking steps to support neurodiversity in their workplace, including steps for managers to take in response to neurodivergence. For example, managers should be supportive towards team members who disclose their neurodivergence and remember to keep all issues confidential. It suggests that, in order to identify the specific actions that should be taken for each individual, an assessment must be made about how neurodivergence affects them in particular. It sets out different experts who should be contacted if unsure about which adjustments to make.
In light of the current focus on wellbeing and support for unseen disabilities, it is worth a quick read.
Claire Helling, Senior Solicitor
Click here for ACAS guidance to Neurodiversity in the Workplace
Holiday pay – all change again
The calculation of holiday pay for employees and workers who undertake voluntary overtime is quickly becoming a very common issue for many employers. We’ve been running a Blog on the subject updating it as the law regularly changes (link below).
The position is clear for employees who work obligatory overtime. These employees are entitled to have that overtime taken into account when calculating holiday pay. This also applies where the employer is not obliged to offer overtime but, when it does, the employee is obliged to undertake it.
The situation is less clear for voluntary overtime (i.e. where the employer is not obliged to offer it and the employee is not obliged to do it). Following the Employment Appeal Tribunal’s decision in Dudley Metropolitan Borough Council v Willetts and others, voluntary overtime must be taken into account when calculating holiday pay, where the overtime is “normally undertaken”.
Timing is everything!!
The London South Employment Tribunal made a finding on 20th March 2019 that plumber Gary Smith, (who was involved in the high-profile Pimlico Plumber case in 2018 in which his status as a worker was confirmed by the Supreme Court) is not entitled to his alleged £74,000 arrears of holiday pay. It was found that he did not bring his claim in time.
The written judgment has not yet been published but it will be interesting to find out what was meant by the comment that the Claimant “should have made his claim for missed pay within three months of each holiday period” (as reported in the Guardian on 20th March 2019). We understand that Mr Smith will appeal the decision so this matter is by no means at an end. See below for details of our seminar on status being held at the Ageas Bowl on 1st May 2019.
Claire Helling, Senior Solicitor
May Seminar *SOLD OUT*
With the news Jess Varnish is appealing the decision in her ‘status’ case against British Cycling, the QC representing her is guest speaking at our seminar on 1st May, so it’s not surprising it’s a sell-out event! We’ll be speaking on other topics too, so we’re looking forward to seeing you all there.
Laura Kelleher, Trainee Solicitor
Reminder of statutory SMP, SSP etc changes
The April SMP, SSP, National Minimum wage and Living Wage etc. changes can all be found on our website at Key Fact and Figures.
And finally …
A senior Fire Chief believes that Fireman Sam is putting women off joining the fire service. She believes the images of men rushing into burning buildings does little to encourage gender equality. For the uninitiated, Fireman Sam is a cartoon character. I feel I should point out that (as all Fireman Sam fans will know) Penny Morris is also in the crew and she is terrific in any crisis, drives the rescue tender and lifeboat. And not wishing to overstate the point but she is also a fully trained coastguard officer. That’s not to mention Ellie, the youngest recruit.
Anyway, the real-life Fire Chief is campaigning to attract more women into the service because only 5% of firefighters in England are women. She says:
“Children’s shows like Fireman Sam don’t help to break down stereotypes either. Most of the job is nothing like it is portrayed. We do community and youth engagement work, where we need to be seen to be representative of the population.”
She has suggested that Fireman Sam should be renamed Firefighter Sam as part of a campaign to encourage more women to consider a role in the fire brigade. (Again, for the sake of balance and at the risk of sounding a bit nerdy, the team are always referred to as firefighters except for Sam.)
All of that said, fundamentally I agree with the Chief (again, the real-life one) regarding changing the name and having a more diverse crew, save that I …I mean children… like watching people (men or women) rushing into buildings and saving people. Watching Sam and his crew doing back-office or community relations work somehow doesn’t hold the same appeal…
