provide enhanced pay in circumstances where it also provided a generous enhancement to maternity leave pay.
Shuter originally lodged a claim for direct and indirect sex discrimination after claiming he was unfairly financially disadvantaged during his five-month period of advanced paternity leave. He took additional paternity leave from 15 July to 6 December 2013 after his partner returned to work following maternity leave. During Shuter’s additional paternity leave, Ford paid him the statutory rate of pay, which was the lesser of £136.78 per week or 90% of average earnings. At the same time, Ford operated an enhanced maternity pay scheme, in which mothers were paid 100% of their basic pay for the 52 weeks of maternity leave. Shuter argued that this difference meant he lost approximately £18,000 compared to a woman receiving enhanced maternity pay. The employment tribunal rejected his claim on the basis that Shuter had chosen the incorrect comparator in identifying a female employee who had taken maternity leave. The correct member comparator would have been a female employee applying for additional parental leave, for example the partner of a woman who had given birth.In this situation, Ford would have paid the female employee the same as Shuter. Therefore, there was no direct discrimination because both man and woman were paid at the same level while on additional leave. The indirect discrimination claim also failed. The tribunal did not accept the Ford employee’s argument that a number of European cases had broadened the concept of maternity leave after 20 weeks to something more akin to childcare leave. On considering whether it was justified, however, Ford successfully argued that this practice of not paying enhanced paternity pay was necessary in order to achieve a legitimate aim, which was to increase the number of woman it employed, which had a male-dominated workforce.
Future Loss of Earnings and Pension Losses
29 September 2014
Is the simplified approach to pension loss appropriate where an individual would have remained a member of a final salary scheme to retirement, but whose only future pension entitlement following dismissal was likely to take the form of a money purchase scheme?
We are grateful to Daniel Barnett for passing on Chesca Lord’s summary of the Court of Appeal decision in Griffin v Plymouth Hospital.
Mrs Griffin, a bone densitometrist, successfully brought complaints of constructive unfair dismissal and disability discrimination. The employment tribunal found that with reasonable adjustments she would have been able to continue in employment indefinitely, but would not now work for the Trust or as a clinical technician again. Following an appeal on remedy, a remitted employment tribunal projected that the Claimant would equal her earnings but for discrimination within a 12-year time frame, excluding evidence of subsequent unpaid employment on the strict terms of the remittal. The Court of Appeal approved this approach. However, the Court of Appeal found that in applying the simplified approach to pension loss, the employment tribunal misdirected itself. The key question was the likelihood the Claimant would have remained in the Trust's final salary pension scheme to retirement. The employment tribunal erred in treating the Claimant's age as decisive and failed to consider her specialist skills, the job market, and her medical condition, which made the substantial loss approach the only appropriate one in the circumstances. There was no basis for the finding that she would join another final salary scheme in future.
CIPP Policy News Journal
08/04/2015, Page 123 of 521
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