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EAT gives landmark judgement on shared parental pay

This month, the Employment Appeal Tribunal (EAT) has handed down its judgement on a direct sex discrimination case involving shared parental pay.

In other case law, the Supreme Court held there was an implied term in all contracts of employment as to the point that a notice period begins.

Shared parental pay was not direct sex discrimination
The Employment Appeal Tribunal (EAT) has recently decided that paying women on maternity leave more than men on shared parental leave was not direct sex discrimination.

The ruling was based on the determination that a woman who has given birth is entitled to special treatment in connection with the childbirth that cannot be compared to a man on shared parental leave.

November Budget

Philip Hammond delivered the first November Budget for 21 years on the 22 November 2017. Although expected to be a duller affair than normal, there were a number of employment initiatives outlined that organisations need to be aware of.

The Chancellor confirmed the minimum wage increases that will take effect from April 2018.

National living wage, the rate for workers aged 25 and over, will increase by 4.4 per cent from £7.50 to £7.83 an hour.

Over a year, this increase will give a full time worker a £600 pay increase.

The government has also accepted the Low Pay Commission’s recommendations for national minimum wage (NMW) increases. From April 2018, the following increases will apply:

Workers aged 21-24 – NMW will increase from £7.05 to £7.38 an hour
Workers aged 18-20 – NMW will increase from £5.60 to £5.90 an hour
Workers aged 16-17 – NMW will increase from £4.05 to £4.20 an hour
Apprentice rate – will increase from £3.50 to £3.70 per hour
The Budget was used to repeat the government’s commitment to deliver three million apprenticeship starts by 2020 through the operation of the apprenticeship levy. The levy, introduced in April 2017, requires organisations with an annual turnover of more than £3 million to pay 0.5 per cent of their pay bill in to a digital levy account. This money is then available to spend on apprenticeship training for 24 months before expiring.

The Chancellor announced the government will review the flexibility levy payers have to spend their money. Although no further details were announced, this may look at extending the time organisations have to spend the money in their levy account or improve the way group structures can share their levy payments.

A new National Retraining Scheme will be introduced. The government will work in partnership with the Trade Union Congress and the Confederation of British Industry to develop a scheme that supports workers with retraining during their working lives. It will provide the opportunity to gain skills that are necessary for future workplaces. At first, the scheme will focus on certain sectors and will initially look to provide retraining on construction and digital skills.

In the Budget document, it was further announced that the government will publish a discussion paper in response to Matthew Taylors review on ‘Modern working practices’. This paper will explore the options available to clarify employment status tests for both employment rights and tax.

Mindfulness in the workplace – taking a grassroots approach

One of the workplace wellbeing success stories of recent years has been the rise to prominence of mindfulness. A form of meditation that has moved well beyond its Buddhist origins, mindfulness is widely practised all over the world. Much more than a celebrity lifestyle fad, it has been embraced by bastions of the UK establishment. Oxford and Bangor Universities have been researching the impact of mindfulness since 2008 – adding to a substantial evidence base confirming its effectiveness.

In political circles, a Mindfulness All Party Parliamentary Group has explored how mindfulness can contribute to society more broadly, resulting in it being introduced into schools and prisons. For good measure the MPs created a policy institute; The Mindfulness Initiative.

This has produced an influential business case for mindfulness in UK workplaces, to encourage and support companies interested in making it available to employees.  A great many have done so.

Google, IKEA, General Motors and the insurance giant Aetna are some of the major corporations that have embraced mindfulness. It has gained traction in the financial sector too, with Lloyds, Goldman Sachs, RBS, Bank of England, Credit Suisse, Deutsche Bank, and HSBC among the banks that have offered it to their staff.

With so many large corporations on board, it’s fair to say that mindfulness has gone mainstream.

But there is no right way to bring mindfulness into the workplace.

What is important is that it is introduced in a way that aligns with the culture and values of the organisation. Some businesses offer it to all employees on a voluntary basis.

In others the focus is on senior leaders through the introduction of a “Mindful Leadership” programme. Mindfulness can also be rolled out through apps that are offered for free or as part of an employee benefits package.

An employee-led approach is much less common.

This typically involves the business supporting mindfulness initiatives that develop naturally from the enthusiasm of employee-led groups.

These spread gradually through the organisation as awareness and commitment widens. In some cases the extent of company support amounts to little more than providing room space for practice but it can extend to more sophisticated approaches.

One particularly innovative example of this has taken place at HSBC. There are useful lessons for other businesses in how they have gone about it, so I’m going to look at it in some detail.

From small beginnings

Mindfulness at HSBC was initiated through the efforts of Mari Lewis – a senior IT Architect for the bank in Sheffield, who practised mindfulness regularly.

She enjoyed the benefits herself and wanted to establish whether there was appetite among her colleagues to form a regular group. In 2012, she solicited interest in her workplace, through an onsite lunchtime stall, signing up 15-20 staff. Mari, an experienced mindfulness practitioner, led the sessions and the interest grew.

Five years on, 350 employees have been through her Sheffield programme.

In 2014 Mari, along with a colleague Jane Daniels, oversaw the development of an employee-led mindfulness network, and the creation of a mindfulness intranet site. A launch event for the network was held at the bank’s Canary Wharf HQ, introduced by one of the bank’s global heads, with a special interest in mental health.

With 500 employees participating, many dialling in from HSBC sites round the world- at the time, this may have been one of the largest ever-corporate mindfulness events,

Soon mindfulness sessions were being set up at other HSBC sites across the UK where experienced volunteers were available. Support for the developing network was gained from the UK bank’s Head of HR. Since then there have been many mindfulness events, often involving external speakers. The network membership has now grown to over 1000 employees.

But more was needed if mindfulness was going to succeed long-term. An internal leadership project group raised the profile of mindfulness further, gaining support and funding from the UK Head of Benefits and Reward, who holds responsibility for the HSBC UK’s new wellbeing strategy.

This financed a multi-stranded mindfulness programme that will be rolled out across the bank through the remainder of 2017. This includes access to a mindfulness app and the training of 25 mindfulness champions. The use of a ‘train the trainer’ approach will ensure the supply of future champions is sustainable.

The programme also includes, at HSBC’s request, research into its impact.

To embed it further, mindfulness has also been introduced, as an option, into the Banks’s “mental health pathways”, which is the process by which mental health cases are managed at HSBC.

This also includes occupational health and the private health insurance provider.

Following an impressive re-launch event in July 2017, the process of recruiting the champions is underway, to take mindfulness at the bank to the next level.  In September 2017 HSBC received a Parliamentary award in recognition of the achievements of the mindfulness network

Mindfulness from the bottom up 

What impresses me most about this approach is that it has evolved organically through the commitment of dedicated enthusiasts, fired by a wish to communicate the benefits of mindfulness to others.

Spread in this way, the introduction will only succeed if it elicits enough interest from colleagues.

And because it is initiated by employees, it is hard to argue that mindfulness is being introduced for faddish reasons, or that it is being hijacked to suit corporate ends – a frequent criticism of corporate programmes.

Finally, whilst large organisations, might baulk at commissioning mindfulness training for a workforce of many thousands, employee-led rollouts are easily scalable and relatively inexpensive, once a cohort of internal trainers is in place.

Mindfulness in UK businesses is on an upward curve.

There are many different ways it can be offered in the workplace. What HSBC has done seems both innovative and cost effective and demonstrates that sometimes wellbeing programmes succeed best when they originate with the staff themselves.

Read more about how mindfulness has taken off among UK businesses and the different approaches they are taking to make it available to employees, in Bank Workers Charity’s whitepaper Mindfulness at Work: On an Upward Curve.

 Paul Barret

Statutory rates

Statutory maternity pay (SMP):

First six weeks – 90 per cent of employee’s average weekly earnings.

From 3 April 2016: Remaining weeks – £139.58 or 90 per cent of employee’s weekly earnings if this is lower
From 2 April 2017: Remaining weeks – £140.98 or 90 per cent of employee’s weekly earnings if this is lower

Statutory adoption pay (SAP):

First six weeks – 90 per cent of employee’s average weekly earnings.

From 3 April 2016: Remaining weeks – £139.58 or 90 per cent of employee’s weekly earnings if this is lower
From 2 April 2017: Remaining weeks – £140.98 or 90 per cent of employee’s weekly earnings if this is lower

Statutory paternity pay (SPP):

From 3 April 2016: Two weeks – £139.58 or 90 per cent of employee’s weekly earnings if this is lower.
From 2 April 2017: Two weeks – £140.98 or 90 per cent of employee’s weekly earnings if this is lower.

Statutory shared parental leave pay:

From 3 April 2016: £139.58 or 90 per cent of employee’s weekly earnings if this is lower
From 2 April 2017: £140.98 or 90 per cent of employee’s weekly earnings if this is lower.

National Living Wage

From 1 April 2016, a new National Living Wage for workers aged 25 and over was introduced. In November 2016, the government announced new rates for all five categories of worker, to take effect from April 2017. For more information see our Recent and forthcoming legislation page.

From 1 October 2016:
Workers aged 25 and over: £7.20 an hour
Workers aged 21 and over: £6.95 an hour
Development rate for workers aged 18-20: £5.55 an hour
Young workers rate for workers aged 16-17: £4.00 an hour
Apprentice rate: £3.40 an hour

From 1 April 2017:
Workers aged 25 and over: £7.50 an hour
Workers aged 21 and over: £7.05 an hour
Development rate for workers aged 18-20: £5.60 an hour
Young workers rate for workers aged 16-17: £4.05 an hour
Apprentice rate: £3.50 an hour

Statutory sick pay

From 6 April 2016: £88.45
From 6 April 2017: £89.35

Redundancy pay

For details of statutory redundancy payments and guaranteed pay see the Compensation limits listed above.

The GOV.UK website has an interactive tool to help calculate redundancy pay.

National Minimum Wage and National Living Wage

1 Apr 2017 – National Minimum Wage and National Living Wage

The following NLW and NMW hourly rates apply from 1 April 2017:

  • Workers aged over 25 years (NLW): £7.50.
  • Workers aged 21 to 24 years: £7.05.
  • Workers aged 18 to 20 years: £5.60.
  • Workers aged 16 to 17 years: £4.05.
  • Apprentices (under 19 years, or in the first year): £3.50.

From 2017, changes to both the NLW and NMW rates will take place in April.


There were a number of measures of importance to employers in the budget, including a small change to the taxation of termination payments, following a government consultation last year. From April 2018, termination payments (for redundancy, for example) in excess of £30,000 which are already subject to income tax will also be liable for employer National Insurance Contributions.
“It has always seemed bizarre that although income tax became payable on amounts over £30,000, national insurance contributions did not,” commented employment partner Chris Holme, from law firm Clyde & Co. “The announcement that employers NICs will now be payable on these amounts seems quite logical. Unfortunately it will lead to an increased cost for employers, but we can’t see this having a huge impact on the number of settlements because the very important tax break for the employee (the first £30,000) it seems will remain – and that is to be welcomed.”
Other measures announced in the budget included a consultation in May 2016 on extending shared parental leave and pay to working grandparents, which will also consider options for streamlining and simplifying the existing shared parental leave procedures.
More details on the apprenticeship levy were also announced. Employers with an annual wage bill of more than £3 million will pay a 0.5 per cent apprenticeship levy from April 2017, but will also receive a 10 per cent top-up to their monthly levy contributions from the government, in addition to a £15,000 allowance they can offset against the levy payment.
The government’s Tax-Free Childcare scheme will begin rolling out in early 2017, and the existing Childcare Vouchers scheme will close to new entrants from April 2018.

National living wage

From 1 April the new National Living Wage (NLW) is payable to workers aged 25 and over. The introductory rate is set at £7.20 an hour and is expected to rise to over £9 by 2020. BIS guidance on ‘Calculating the minimum wage’ has been updated to reflect the new wage. The Low Pay Commission will continue to advise the government on appropriate increases annually.
The government announced in February that over 90 employers had been ‘named and shamed’ for not paying the NMW. From 1 April the penalty for underpaying the minimum wage will double to 200 per cent of the arrears owed to each worker if the debt is not cleared within 14 days.
Just before the Budget in March, Chancellor George Osborne announced the following increases to the National Minimum Wage (NMW) from 1 October 2016:
•    Workers aged 21-24 rate rises from £6.70 to £6.95 an hour
•    Workers aged 18-20 rate rises from £5.30 to £5.55 an hour
•    Workers aged 16-17 rate rises from £3.87 to £4.00 an hour
•    Apprentices under 19 (or in first year of apprenticeship) rate rises from £3.30 to £3.40 an hour.
From 2017 both the NLW and the NMW will change on 1 April.
Phil Allen, employment partner at law firm Weightmans, commented that the size of the NMW increases was “something of a surprise”, and pointed out that from October they “will narrow significantly this age-related minimum pay gap”.
Chris Rowley, professor of human resources at Cass Business School predicted that the NLW would have a greater effect on small businesses, the accommodation, food services, retail and agriculture sectors, and on employers providing administrative and support services. “Worryingly, some firms have already looked at ways around the NLW, such as cutting benefits and perks, taking on younger workers, using apprenticeships and self-employment as convenient fig-leaves,” he said.
Kristie Willis, an employment solicitor at law firm BTMK, warned that employers attempting to minimise the NLW’s effects by recruiting younger employees “may amount to age discrimination.” She also thought that any businesses trying to engage contractors rather than employees in order to avoid paying it “should seek careful advice before doing this to ensure that any contractors are not actually considered workers under the NMW rules. If employers fail to comply, the overall maximum penalty is £20,000 per worker.”
Angela Wright, senior lecturer in human resources management at Westminster Business School, said there was a concern that a rise in the lowest pay rate could “trigger pay claims from others in the organisation, particularly those paid just above the new rate. Companies may find it beneficial to move to pay structures which use pay ranges, rather than the single point or spot pay rates used by some large retailers, so they can manage the introduction and development of the NLW more effectively.”

Recent case law on monitoring, dismissal and references

Recent case law on monitoring, dismissal and references
A Romanian case on Yahoo messaging at work prompts a flurry of press reports, constructive dismissal is tested in the EAT, and an adverse verbal reference leads to successful disability discrimination claims against both former and prospective employers
Online monitoring
A recent decision of the European Court of Human Rights, Barbulescu v Romania, caused a sensation in the UK press. Headlines such as The Telegraph’s ‘Bosses can snoop on workers’ private emails and messages, European court rules’, were typical of the press coverage. But this is not the whole story.
The case involved an engineer in charge of sales for a Romanian company who was caught by his employer using a Yahoo Messenger account, set up to enable him to answer client enquiries, for his own purposes. He was messaging his girlfriend and his brother and some of the messages related to his sexual health. Using the account for personal messages breached company policy but Barbulescu claimed his employer had infringed Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights by ‘snooping’ on his messages and using these as a reason to dismiss him.
The court decided it was reasonable for Barbulescu’s employer to check the Yahoo account, especially since its original search was for client-related communications, and employees were aware such accounts were not for personal use.  It ruled in the employer’s favour, deciding on balance that the employee’s privacy rights had not been breached.
Andrew Dyson, a partner in DLA Piper’s data protection and privacy group, said the case clarifies that monitoring employees’ online activity is legitimate if employers have concerns about employee behaviour, but that it has to be carried out “in a proportionate manner and in line with a clearly articulated policy set out to all members of staff”.
Employment partner at law firm CMS Sarah Ozanne, said the decision “doesn’t mean that UK employers are able to freely pry on their employee’s personal communications. The facts of this case are very specific. But it is a warning to employees that they cannot assume that their personal communications at work won’t be monitored, and a salutary reminder to employers that they cannot do so unfettered.” Employers had to act with “reasonableness and proportionality,” she said. She also pointed out that while the decision must be taken into account by UK courts, they are not bound by it..
Sue Kelly, a partner in the employment team at Winckworth Sherwood, said this area of law was a “minefield” for employers, and while it was possible to limit the risks by using written policies, “there is a limit on how far employers can go, and a blanket ban on any private emails or messages being sent at work, or routine scrutiny of all such communications, is likely to be a disproportionate interference with employees’ right to privacy under the Human Rights Act.”
Richard Fox, head of employment at law firm Kingsley Napley, said the facts in the case dated back to 2007 so it did not necessarily strike at the heart of the main problem for employers in this area now, which concerned employees using their own phones and tablets for work purposes during working hours.
“What can employers do to ensure that employees remain focused on their work?” he asked. “Are they able to check personal devices to see that electronic exchanges taking place in work time are genuinely of an emergency nature, and are not excessive in terms of time? That, I suspect, will be the next issue to be clarified for employers.”
Constructive dismissal
A case in the Employment Appeal Tribunal (EAT), Frenkel Topping v King, has confirmed that it’s not easy for employees to establish they have been constructively unfairly dismissed. The claimant in the case did succeed in this but failed to prove her treatment was a reaction to her ‘whistleblowing’, for which compensation is uncapped. Her allegations of poor treatment included unfair criticism of her performance in front of colleagues and threats to increase her working hours.
The EAT emphasised that the employer’s actions in such cases must be “really serious” and amount to “conduct with which an employee could not be expected to put up”. Charles Wynn-Evans,‎ a partner at Dechert, said for a claim to succeed, the employer must have behaved ‘in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust’ between employer and employee.
“Some employer treatment will obviously constitute constructive dismissal,” he said, “such as failing to pay agreed remuneration or reducing an employee’s status without reasonable or proper cause. But in other cases, such as generalised poor treatment, a change of reporting lines and so on, the situation may be far from clear cut.”
The case Pnaiser v NHS England and Coventry City Council involved a disabled candidate who had a job offer withdrawn when her former line manager told her prospective employer over the phone that she had had significant time off work and might struggle with pressure in the new role. An agreed reference had been part of the employee’s settlement terms with her previous employer. The EAT found both employers had discriminated against her because of her disability.
Dechert partner Charles Wynn-Evans said the case demonstrates the risks for employers deviating from agreed references and that a disabled employee may still have a claim even if disability is not the only reason for an adverse reference. He said prospective employers receiving comments related to a candidate’s sickness absence “may need to consider what further investigations are necessary before a decision is made to withdraw a job offer”.