01 July 2021

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases


Bayliff v Fileturn Ltd

The employment tribunal (ET) has evaluated the calculation of notice pay whilst furloughed before the law was changed in July 2020.

The job retention scheme was introduced in March 2020 to assist businesses suffering a downturn as a result of the coronavirus pandemic and associated lockdown restrictions. The scheme involved placing employees on ‘furlough’, meaning they remained on their employer’s payroll but did not carry out work for their employer, with the government covering 80% of their wages.

Guidance on the use of the furlough scheme was fast-changing, with new information regularly being released. One such issue was that of calculating pay for employees on furlough who were also serving notice. Initial guidance had been unclear on whether they should receive 80% of their wages or if this should be 100%, which would have necessitated their pay being topped up by the employer.

On 30 July 2020, the UK government announced that it would be changing the law to clarify this, outlining that the calculations for statutory notice pay should be based on pre-furlough pay and not the reduced 80%. This came into force on 31 July 2020.

As with much of the changing guidance at the time, this particular change only led, unfortunately, to further confusion. Specifically, a question was raised as to whether this new rule would apply to notices being served prior to 31 July 2020. No new guidance was published to clarify this point.

In this case, the employee was furloughed under the scheme and received 80% of his wages. Around a month later, he was given notice of his employment being terminated. The employer provided 80% of his notice pay up until 30 July 2020 and, in line with the changing law, from this date he was provided 100%.

The employee later brought a claim to a tribunal for unlawful deduction from wages. He claimed that he should have been paid 100% for the entirety of his notice period.

The tribunal dismissed the claim. In their judgment, they stated that as the new law came into force on 31 July 2020, it only applied to notice pay calculations from that specific date. Any calculations that took place prior to this did not need to be retrospectively increased as a result. When applied to the employee’s situation, this meant that he had been correctly paid his full notice entitlement and his claim therefore could not succeed.

 

Rodgers v Leeds Laser Cutting Ltd

The ET has held that an employee was not automatically unfairly dismissed following his refusal to come into work during the first coronavirus lockdown.

The claimant commenced work in a warehouse in 2019, which was described as being ‘the size of half a football pitch’. Generally, he would work with around five other people. In early 2020, just before the first coronavirus lockdown, one of his colleagues displayed symptoms of Covid-19 and was sent home to isolate.

Following the implementation of lockdown on 23 March 2020, the warehouse remained open as it was not on the government’s list of workplaces that needed to close. The organisation put mitigation measures in place to help stop the spread of the virus, which included social distancing, regular cleaning of workstations, staggered start and finish times, and the voluntary use of facemasks.

Two days later, the claimant self-isolated due to a cough which, as he was unable to get a Covid-19 test at the time, attributed it to the dust in the warehouse. He later sent his manager a text, informing him that he was going to stay off work ‘until the lockdown had eased’ as he did not want to risk bringing the virus home to his children, one of whom had sickle cell anaemia. The manager replied with, ‘okay mate, look after yourself’.

No further communication took place between the claimant and the organisation until 24 April 2020, when he discovered that he had been dismissed for unclear reasons. As a result, he brought a claim to the tribunal for automatic unfair dismissal on the basis of his ‘reasonable belief’ that the warehouse posed a serious and imminent threat to his family’s health.

The tribunal dismissed his claim. In forming their decision, they carefully evaluated whether the claimant did have a ‘reasonable belief’ as outlined in the legislation. Whilst they accepted that he had significant concerns about the ongoing pandemic, in particular how this could impact his children should they catch the disease, they also called into question his actions as a result of this.

Crucially, the claimant had failed to specify to the organisation why he felt the workplace was unsafe and indeed had only outlined his intention to remain at home until lockdown was eased. He had refused to come into the warehouse despite agreeing that he would have been able to socially distance and had also failed to demonstrate why the other measures taken to keep staff safe, such as the additional cleaning, did not go far enough. The tribunal considered this to be ‘vague’ and ‘contradictory’ evidence.

The tribunal did, however, take issue with how the claimant was dismissed and noted that, whilst he had not been ‘automatically’ unfairly dismissed, had he been able to bring a claim for unfair dismissal, it likely would have succeeded.

 

Price v Powys County Council

The employment appeal tribunal (EAT) has held that a man on shared parental leave, who was paid less than a woman on adoption leave, was not discriminated against based on his sex.

In this case, the claimant inquired as to what pay he would receive should he take 37 weeks of SPL following the birth of his child. After being told he would be paid at the statutory rate, he decided not to proceed.

The organisation had a policy in which employees could receive enhanced maternity and adoption leave pay; in other words, they were paid more than the statutory minimum and, therefore, more than a man on SPL.

The claimant later brought a claim of direct sex discrimination to the ET, and identified two possible comparators:

  • a female employee on maternity leave who was receiving maternity pay
  • a female employee on adoption leave receiving adoption pay.

The ET dismissed his claims when considering both comparators.

When looking at the first comparator, the ET outlined that being on shared parental leave was materially different to a woman on maternity leave. Although the ET accepted that between the claimant and the second comparator there were more comparisons, and addressed five specific points put forward by the claimant, it ultimately held that the positions were not materially the same; meaning the claim had to fail.

The claimant appealed to the EAT against the rejection of the second comparator, but this was dismissed, too. The claimant argued that as the purpose of both forms of leave was to facilitate childcare, a comparison should be possible for the purposes of the law.

The EAT found that that the purposes of adoption leave went beyond childcare. As outlined in the Adoption and Children Act 2006, adoption leave is important for the forming of a parental bond following the placement, and as such was different to the position of SPL.

The EAT went on to evaluate the five material differences that the claimant had put before the original ET, which had been dismissed, to see if the lower court had erred in its ruling. Their conclusions were as follows.

The claimant had argued that neither of the forms of leave were compulsory, which the ET had disagreed with, finding that adoption leave was compulsory. However, the EAT concluded that it was not actually compulsory, meaning the ET had erred here.

The ET had found the fact that adoption leave could commence before the placement, but shared parental leave could not, which meant the two forms of leave were not comparable. The claimant had disputed this, saying that the fact adoption leave could commence fourteen days earlier than shared parental leave was not significant in the context of leave that could last 52 weeks. However, the EAT agreed with the reasoning of the ET.

The ET had found that adoption leave was an immediate entitlement upon the child’s placement, but shared parental leave was not. The EAT also agreed with this.

The claimant argued that as shared parental leave could only be taken with one partner’s agreement to give up maternity leave it was comparable to adoption leave where one partner has to agree to be the ‘main adopter’. However, the EAT found this argument problematic; a parent deciding not to be the ‘main adopter’ should not be seen as giving up an entitlement.

The ET had also found that the two forms of leave work differently, with the aim of giving parents greater choice when it comes to childcare. The EAT agreed. 


 

Featured in the July/August 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.