"In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter [of Fundamental Rights maximum working hours] and by [the Working Time Directive], with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive." This judgment means that, in order to properly transfer the Working Time Directive into national law, a member state must require employers to keep records of hours worked. It appears that the Working Time Regulations , and the Northern Ireland equivalent, have therefore not properly transposed the Directive into UK law. The Government will have to amend both Working Time Regulations (or derogate from the Directive where allowed) to avoid the risk of claims against them for failure to transpose the Directive - if EU law remains in force in the UK of course.
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Shared Parental Leave and Sex Discrimination 29 May 2019
The Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall has held that it is not discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave, whether the claim is expressed as direct or indirect discrimination, or equal pay.
There were various claims put forward by both Claimants. Daniel Barnett’s employment law bulletin explains the Court of Appeal’s decisions as follows:
Direct Discrimination
The exception to a comparison between employees for "special treatment afforded to a woman in connection with pregnancy or childbirth" is wide enough to include enhanced maternity pay. The minimum of 14 weeks' leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks and:
"The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner."
Men on parental leave and women on maternity leave are therefore not in comparable positions for the purposes of Equality Act 2010 .
Equal Pay
A contractual difference in shared parental leave pay between men and enhanced maternity pay for women is properly be characterised as an equal pay claim. The clause in a contract providing women with a higher level of pay is more favourable to women than men.
The Equality Act 2010, however, provides that the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded elsewhere in the Act. Paragraph 2 of Schedule 7 to the act says:
"A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."
For the same reasons as direct discrimination, that is wide enough to include enhanced maternity pay. As a result, there is no claim for equal pay as it is specifically excluded by Equality Act 2010 .
Indirect discrimination
There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. The exception for equal pay in paragraph 7 of schedule 2 therefore means that an indirect discrimination claim cannot be brought either.
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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