The Claimant, Ms D, and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the Employment Tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child. Following a preliminary reference by the Employment Judge, Advocate-General Kokott suggested the Court should find that a commissioning mother has the right to receive maternity leave under the Directive, even when she does not breastfeed the child. However, the Court has held that although maternity leave is intended to protect the special relationship between a woman and her child, the grant of maternity leave pursuant to the Directive presupposes that a worker has actually been pregnant and given birth to a child. The Court also found that an employer's refusal to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive. CIPP comment The court did say that member states were free to apply more favourable rules for the benefit of commissioning mothers; not unlike UK maternity, paternity and adoption pay where the employer can also apply more favourable terms than the statutory entitlement. The Children and Families Act 2014 was recently approved by Parliament and from 2015 intended parents in surrogacy arrangements in the UK will also qualify for adoption leave and pay.
Equal Pay
25 March 2014
In equal pay cases does a Limited Liability Partnership (LLP) qualify as an 'associated employer' under s1(6) of the Equal Pay Act 1970 (now the Equality Act 2010) for the purpose of identifying a comparator employed by a different entity?
Daniel Barnett’s Employment Law Bulletin summarises a recent case.
The Court of Session in Glasgow City Council v Unison looked at an outsource by Glasgow City Council, whereby services for parking enforcement and direct care services (care, cleaning, catering and related services) were transferred into LLPs set up to operate those outsourced services and the women who transferred wanted to rely upon male comparators still employed by Glasgow council. The court accepted that LLPs were companies in the broader sense (rather than the narrower Companies Act 2006 definition) and could be considered an associated employer on that basis. Employers who deal in any outsourcing model (particularly where equal pay claims have been more common in recent years such as local authorities) need to be diligent to avoid inadvertently assuming large financial liability for latent equal pay claims that may have arisen outside of their knowledge and control.
Implied Terms and Redundancy Payments
27 March 2014
CIPP Policy News Journal
16/04/2014, Page 131 of 519
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