that pay accrued equally from day-to-day, and the sum to withhold was the smaller 1/365th. The Court held that the sum withheld was to be calculated on the basis of the contractual terms, and noted that although the Apportionment Act applied, it did not require the principle of equal daily accrual of salary to be applied: 'provided it is plain from the terms of the contract that the principle of equal daily accrual is not intended to apply, that should be sufficient to exclude the principle even though there may be difficulty in resolving precisely how the pay is related to the work performed' (para. 43).
It was noted that the cost implications of the judgment across the education sector would be around £300,000 per strike day.
Discriminatory to refuse maternity leave for gay dads 29 May 2015
A ground breaking employment dispute in South Africa has confirmed that it is discriminatory to refuse maternity leave to gay men who become parents through surrogacy.
With thanks to Eversheds for the details of the case - MIA v State Information Technology Agency (Pty) Ltd .
This recent decision of the Labour Court concerned a married gay couple who had entered into a surrogacy agreement with a woman to carry a baby for them. It was agreed between the two parents that one of the men would take on the role of the “mother” by taking immediate responsibility for the baby after its birth. In anticipation of the birth he applied to his employer for four months’ maternity leave. This was contested by the employer on the basis that the Basic Conditions of Employment Act only contemplated granting maternity leave to female employees. The employer eventually granted him two months’ paid adoption leave and two months’ unpaid leave. This, according to the applicant, amounted to unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation in terms of the Employment Equity Act. The court agreed and found that the right to maternity leave is not only linked to the physiological welfare and health of the child’s mother but also considers the best interest of the child. In addition, because our law allows for same-sex marriages and regulates the rights of parents who enter into surrogacy agreements, employer’s policies pertaining to maternity leave should recognise or be interpreted to adequately protect the rights that flow from the Children’s Act and the Civil Union Act. Accordingly, the court was of the view that there is no reason why a gay man who becomes a parent through surrogacy and assumes the role of primary care giver should not be entitled to maternity leave for same amount of time as birth mothers. Consequences Legally, it is envisaged that the legislation may have to be amended to broaden the definition of maternity leave. This judgment not only extends the rights of men who are fathers to be in same-sex marriages, but also opens the door for heterosexual fathers, who will be the primary caregivers for their babies, to argue that they too are entitled to maternity leave.
Another important consideration is the maternity rights of parents who adopt new-born babies, as it is arguable that in light of this judgment that the primary caregiver should also be entitled to full maternity leave.
Concluding Remarks It is advisable that employers consider aligning their company’s policies with the shift in affording both male and female primary caregivers equal opportunity to claim maternity leave. If they don’t, employers may face potential exposure to similar claims which may prove to be a costly exercise - not to mention a losing battle.
Whistleblowing: Meaning of Disclosure 5 June 2015
Can disclosures that are not protected disclosures be converted into them by linking them together?
No, held the Employment Appeal Tribunal (EAT) in Barton v Royal Borough of Greenwich , dismissing the Claimant's appeal.
With thanks to Daniel Barnett’s employment law bulletin for the following case summary.
CIPP Policy News Journal
25/04/2016, Page 69 of 453
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