Man successfully claims sex discrimination for failure to pay enhanced shared parental pay

Statutory shared parental leave of up to 50 weeks and shared parental pay of up to 37 weeks are available for qualifying parents. In the recent case of Ali v Capita Customer Management Ltd an employment tribunal considered the issue of whether an employer’s failure to pay enhanced shared parental pay amounted to sex discrimination.

Mr Ali was employed by Capita Customer Management Ltd as a result of a TUPE transfer from Telefonica. Female employees who transferred to Telefonica were entitled to maternity pay of 14 weeks’ basic pay, followed by 25 weeks’ statutory maternity pay. Male employees who transferred were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”.

Mr Ali took two weeks’ paid leave following the birth of his daughter. His wife was diagnosed with post-natal depression and advised to return to work. When Mr Ali asked Capita what his rights were, he was told that although he was eligible to take shared parental leave, he would only be paid statutory shared parental leave pay. Mr Ali argued that he should have the same rights as the female employees who had transferred from Telefonica and lodged a sex discrimination claim.

The tribunal upheld Mr Ali’s claim for direct sex discrimination on the basis that the enhanced maternity pay offered to female Telefonica employees was not special treatment afforded to them in connection with childcare/childbirth, but was special treatment for caring for a new-born baby. The appropriate comparator was therefore a hypothetical female colleague who took leave to care for her child after the two week compulsory maternity period.

This is only a first instance decision and the tribunal’s ruling conflicts with a first instance decision on a similar case in Hextall v Chief Constable of Leicestershire Police. We understand that both decisions are being appealed.

Employment tribunal awards employee £2 for breach of right to be accompanied

In Gnahoua v Abellio London Ltd an employment tribunal awarded an employee £2 for a breach of the right to be accompanied at a disciplinary hearing under S.10 of the Employment Relations Act 1999.

The employer had a policy of refusing to allow two brothers, who were both PTSC union officials, to accompany employees at disciplinary or grievance meetings.  The reason for this was that an employment tribunal had awarded costs of £10,000 against the men for vexatious conduct in connection with a claim one of them had brought against the company.  The vexatious conduct related to the fact that one of the men had falsified the date on a witness statement. One of the brothers had also used threatening behaviour towards the company’s staff.  As a result, the company refused to permit Mr Gnahoua to be accompanied at his appeal hearing by one of the brothers.

The tribunal held that whilst an employee has an unfettered right to be accompanied at a appeal hearing by his chosen companion (as long as the companion comes within the permitted categories of employed trade union official, certified trade union official or colleague), the employer had strong grounds for refusing to allow Mr Gnahoua to be permitted by his chosen companion.  Furthermore, Mr Gnahoua had not suffered any detriment as a result of his rights being breached, as the company had conducted his appeal hearing in a considerate and thorough fashion, listening to his arguments carefully and taking his long service into account.

Whilst this case will provide some comfort to employers who find themselves in situations where they have a particularly good reason for refusing to allow an employee to be accompanied by a specific individual, the circumstances were very unusual. As a decision to refuse to permit an employee to be accompanied by his chosen companion is likely to be a breach of the Employment Relations Act and may affect the overall fairness of the employer’s actions, it should not be taken lightly.

Non-compete clause assessed in light of parties’ expectations of promotion

A restrictive covenant will be void as being in restraint of trade, unless the employer has a legitimate proprietary interest to protect and the scope of the clause is reasonable in all the circumstances. The reasonableness of a restrictive covenant is assessed at the time it is entered into.  In Egon Zehnder Ltd v Tillman the High Court considered whether a restrictive covenant which was agreed to in 2004 was enforceable 13 years later, after the employee had been promoted several times.

Mrs Tillman joined Egon Zehnder Ltd (EZ), an executive search company, in 2004.  She had previously worked as an investment banker and was recruited to work in EZ’s financial services group.  Mrs Tillman’s starting salary and bonuses were higher than usual, as she was expected to be a rising star. After five years, she was promoted to partner and later to Global Head of Investment Banking. In 2017, Mrs Tillman resigned and informed the company that she wished to start working for a firm in New York that did similar work.

The company sought an injunction on the basis that Mrs Tillman would be in breach of a non-compete clause which was in the contract she signed when she joined the company in 2004.  Mrs Tillman argued that the non-compete clause had been unenforceable at the time she started employment, as it went further than reasonably necessary in light of her original duties as a consultant.

The High Court held that it was legitimate to take into account the fact that an employer may have been grooming an employee for promotion and that individual may have greater access to clients and confidential information than would otherwise be expected.  As a result, the restrictive covenant was enforceable against Mrs Tillman and the injunction was granted.

This decision will not help employers who are seeking to enforce old restrictive covenants which were entered into at a time when there was no contemplation of promotion.  It may be useful for employers who can demonstrate that they recruited an individual with a clear intention that the employee would be promoted. However, it is risky for an employer to attempt to rely on restrictive covenants which were entered into many years ago.

The safest course of action is to ensure that appropriate restrictive covenants are included in employment contracts for senior employees and that employees are required to enter into fresh restrictive covenants following any promotion, if the existing ones are no longer adequate.

For more information, please contact Jayne Harrison or Emma Tegerdine