Gordons Legal Employment Update – 20 April

Friday 20th April 2018

Talking while under oath – a warning for witnesses!

In the recent case of Chidzoy v BBC, the Claimant discussed his evidence during a break in the Tribunal hearing and the entire case was struck out.

Gordons had recent experience of this in the Employment Tribunal when acting for a respondent.  Very briefly, we were at a preliminary hearing to argue the point that the claim had been brought out of time and that the Tribunal had no jurisdiction to hear the claim.  The Claimant was in the process of giving his evidence in chief when the Judge called a short break.  The Judge specifically said to the Claimant that he should not discuss his evidence with his solicitor during the break and reminded the Claimant that he was still under oath.  When we stepped out of the Tribunal into the reception, we witnessed the Claimant and his solicitor having a conversation which continued when they went into the Claimant’s waiting room.  This was reported to the Judge.  In the end, it wasn’t necessary to raise this issue again and we were successful in getting the claim struck out, because it was out of time.


The BBC case serves as a harsh reminder to anyone who may be asked to give evidence in Tribunal, including witnesses for employers, that they must be extremely careful about who they talk to during breaks in proceedings while they are in the process of giving evidence.  Even a short conversation (which mentions something dealt with in the evidence) can have serious consequences.


Do you have to pay a man on shared parental leave a sum equivalent to enhanced maternity pay?

The Shared Parental Leave (SPL) Scheme was introduced following the Children and Families Act 2014; it allows parents to share (if they wish) up to 50 weeks of leave. At the same time, the Government introduced a statutory shared parental pay scheme which allows mothers and fathers (or adopters and partners) to share up to 37 weeks of the pay.  Take up of shared parental leave has been very low.

In the case of Capita Customer Management Ltd v Ali and another, the Claimant was paid statutory pay for shared parental leave and not the enhanced package which was offered to female employees who took maternity leave.  The Claimant argued that this was direct discrimination, as he was being treated less favourably because of his sex.

The Employment Tribunal (ET) agreed; however, that the Employment Appeal Tribunal (EAT) allowed Capita’s appeal against the direct discrimination finding.  The EAT said that the purpose of maternity leave is for the health and wellbeing of the expectant and new mother whereas shared parental leave is for the care of the child. Moreover, payment to a woman who has recently given birth and is on maternity leave at a higher rate than that given to parents of either sex on shared parental leave falls within section 13(6)(b) of the Equality Act 2010, which provides that it is not unlawful to afford special treatment to a woman in connection with pregnancy or childbirth.  In addition, the correct comparator in the direct discrimination claim was a female employee on shared parental leave rather than maternity leave, in which case the female employee would have been paid the same as the male employee.



SPL gives employees who are parents a new, more flexible way to take leave in the first year after the adoption or birth of a child.  Men are being encouraged to take a greater role in caring for their babies, and the choice of which parent should take on the greater burden of looking after a child should be made free from the assumption that the mother is always the best person and best placed and to do so.

This decision will mean that, in some circumstances, where the mother is entitled to enhanced maternity pay, there is little financial incentive for the father to take shared parental leave.  That said, this decision will come as a relief to the many employers who, on the introduction of shared parental leave, chose to maintain their enhanced maternity pay policies but only offer shared parental leave at statutory pay.


General Data Protection Regulations – Are you ready?

The date for the new General Protection Regulations (GDPR) coming into force is less than one month away!

We have been advising our clients on a variety of queries and concerns and have been providing a wide range of documents to suit their needs.  We also offer to our clients a suite of core documents for GDPR compliance in the UK.

Please do not hesitate to get in touch with us if you need any assistance with GDPR or you would like us to review what you have done so far.