Gordons Legal Employment Update – 19 January

Friday 19th January 2018

Time running out to publish gender pay gap data

With time running out until organisations with 250 or more employees are required to publish their gender pay gap data, employers should now be compiling relevant data and carrying out the necessary calculations if they have not already done so.

As a reminder, private businesses and public bodies are required to publish their data both on their own website and the Government’s gender pay gap website by 4 April 2018 and 30 March 2018 respectively.  At the time of writing only 620 (out of an estimated 9,000) organisations have published their data, which can be found here.

Comment:      With organisations that do not comply with their duty to publish their gender pay gap data potentially facing unlimited fines and convictions (according to the enforcement plan published by the Equality and Human Rights Commission), it is imperative that organisations take the appropriate steps now to ensure compliance.

If you require any advice in respect of gender pay gap reporting, please contact the Employment Team.


What constitutes an “equivalent period of compensatory rest”?

The Working Time Regulations (WTR) provide that, where a worker’s working time is more than 6 hours, he/she is entitled to an uninterrupted rest break of at least 20 minutes.  However, workers in certain specified roles are excluded from that provision and in circumstances where those workers are required to work during a period which would otherwise be a rest break, the WTR provide that they are entitled to “an equivalent period of compensatory rest”.  It fell to the Employment Appeal Tribunal (EAT) in Crawford v Network Rail Infrastructure Limited to consider the features of “an equivalent period of compensatory rest”.

Mr Crawford worked 8-hour shifts as a railway signalman for Network Rail.  He had no rostered breaks but was expected to take breaks when there were naturally occurring breaks in his work, during which time he remained on call.  He brought a claim in the Employment Tribunal (ET) against Network Rail, arguing that the breaks he was allowed were insufficient.

In rejecting the claim, the ET first found that Mr Crawford’s role was such to entitle him to “an equivalent period of compensatory rest”, then concluded that the breaks he was allowed fell within that definition, largely because their aggregate duration exceeded 20 minutes in any given shift.  Mr Crawford appealed on the basis that “an equivalent period of compensatory rest” must comprise one period of at least 20 minutes.

The EAT allowed Mr Crawford’s appeal, holding that if a period of rest is to be properly described as “equivalent” and “compensatory”, it must have the characteristics of the period of rest it is equivalent to and compensating for, one such characteristic being its uninterrupted duration.  Therefore the EAT agreed with Mr Crawford that he should be given one period of at least 20 minutes rather than several shorter breaks.

Comment:      This case emphasises the importance of employers ensuring that their workers are able to take adequate breaks, and confirmed that, where a worker’s break is interrupted, he is entitled to begin his break again following the interruption.   However, the EAT did also note that, in circumstances where a worker entitled to “an equivalent period of compensatory rest” is on call during his break, this does not automatically render the break insufficient; it is the length of the break which is important.


Unambiguous Impropriety

Pre-termination negotiations between employer and employee are in general ‘without prejudice’, meaning they are not admissible as evidence in any subsequent tribunal claim.  An exception to this rule, considered by the Employment Appeal Tribunal (EAT) in Martin v McDevitt and Community Legal Services, is where the exclusion of such evidence would serve to conceal an act of ‘unambiguous impropriety’.

Mr McDevitt, who suffers from cerebral palsy, was summarily dismissed from his role as Legal Assistant with Community Legal Services in September 2015, following which he commenced claims for notice pay, holiday pay, wages, disability discrimination and a failure to comply with the duty to make reasonable adjustments.  During the Early Conciliation process (communications usually being without prejudice and non-disclosable), Community Legal Services sent an email to Mr McDevitt threatening to ensure that “the local political establishment, local employers and the public” were made aware of Mr McDevitt’s attempt to “enrich himself based on a claim that has no basis whatsoever.”

The Employment Tribunal found the content of the email to be an example of unambiguous impropriety and consequently to be admissible in evidence.  The Community Legal Services appealed.

The EAT held that the Employment Tribunal had erred by assessing the issue on whether or not the words contained in the email were unambiguous; the issue should be decided on whether the statement as a whole in the email is unambiguously improper.  The matter was remitted back to the same Employment Tribunal to reconsider in light of the EAT’s findings.

Comment:      The judgment from the EAT shows that there is a high threshold for pre-termination communications to constitute ‘unambiguous impropriety’.  In particular, the EAT held that, in settlement negotiations, it is acceptable for a respondent to:

  • draw attention to the fact that a tribunal hearing is in public and that the press may be there;
  • draw attention to the fact that the press may be notified that the case is to be heard; and
  • to state that it intends to take the position that the claims against it are spurious.

However, it is likely that whether the statements are found to be unambiguously improper or not will depend on the context and whether they are deemed to be excessively threatening.


Fixed term contracts and unfair dismissal

In Royal Surrey County NHS Foundation Trust v Drzymala the Employment Appeal Tribunal (EAT) considered whether an employer’s compliance with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations renders the dismissal of a fixed-term employee fair.

Ms Drzymala was a doctor employed by Royal Surrey County NHS Foundation Trust (‘the Trust’) on a series of fixed-term contracts.  Eventually her contract was not renewed.  Ms Drzymala brought a claim for unfair dismissal against the Trust.

The EAT upheld the decision of the first-tier tribunal that the dismissal was unfair, finding that the Trust’s compliance with the non-discrimination provisions contained in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations was not sufficient in itself to render the dismissal fair.  In this case the Trust had not adequately discussed with Ms Drzymala any potential alternative roles within the Trust and had not given Ms Drzymala the right to appeal against the decision not to renew her fixed-term contract.

Comment:      When taking the decision not to renew fixed-term employees’ contracts, employers should ensure that the decision is fair in all the circumstances.  This case confirms that this type of dismissal is no different from others to the extent that it must be both substantively and procedurally fair in order to be lawful.


Updated Acas guidance on pregnancy and maternity discrimination published

Acas have published updated guidance on pregnancy and maternity discrimination, with a view to reducing the chance of such discrimination occurring in the workplace and providing practical advice to employers on how such discrimination should be dealt with.  The full guidance can be found here.

From the beginning of her pregnancy to the end of her maternity leave, a woman is protected from pregnancy and maternity discrimination, defined as being treated unfavourably because:

  • of her pregnancy;
  • of any illness related to her pregnancy or absence because of that illness;
  • she is seeking to take, is taking or has taken maternity pay and/or leave; and/or
  • her employer does not want her to return to work because she is breastfeeding.

The Acas guidance identifies areas where pregnancy and maternity discrimination may occur, from the recruitment of staff through to selection for redundancy, and gives advice on best practice to avoid such situations arising.

The guidance recommends that employers ensure they have a pregnancy and maternity policy and implement pregnancy and maternity awareness training for staff. The guidance concludes by cautioning against stereotyping women who are pregnant or on maternity leave.

Comment:      The fact that the number of calls to Acas relating to pregnancy and maternity is rising shows that despite the legal protections in place, pregnancy and maternity discrimination in the workplace remains an issue.  The updated guidance from Acas is useful for employers and employees alike in clarifying the rights and obligations of all parties involved.


If you require any advice on your obligations in respect of staff who are pregnant or on maternity leave, please do not hesitate to contact a member of the Employment Team.