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Suzanne Horne

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Employment Law takeways for November


Employment law takeaways: our bitesize legal updates for busy HR professionals, provided by Suzanne Horne of Morrison and Foerster. This month, it’s mostly maternity and dismissal, but there’s something to be said for football too...

  1. Gisda Cyf v Barratt  – Dismissal by post only effective when employee reads the letter or has reasonable opportunity to read the letter
  2. Kulikaoskas v (1) MacDuff Shellfish and (2) Mr Watt  – Male employee could not bring a claim for associative discrimination on grounds of partner’s pregnancy
  3. Roca Álvarez v Sesa Start España ETT SA  – ECJ decision may result in UK employers having to offer enhanced benefits during additional paternity leave

Gisda Cyf v Barratt – Dismissal by post only effective when employee reads the letter or has reasonable opportunity to read the letter

On 19 October 2006 Ms Barratt was suspended from her employment with Gisda Cyf, after it was alleged that she behaved inappropriately at a private party. On 28 November 2006, a disciplinary hearing was held.  At the end of the hearing Ms Barratt was told that she could expect to receive a letter on 30 November which would inform her of the outcome of the hearing and that she was at risk of dismissal. Her sister had recently given birth and so on 30 November 2006 she went to visit her. As a result, she was not at home when a letter from Gisda Cyf arrived for her later that day by recorded delivery. Her boyfriend’s son signed for the letter. On 3 December 2006 she returned home late in the evening. On 4 December 2006 she was given the letter. The letter informed her that she had been summarily dismissed for gross misconduct. Ms. Barratt appealed the decision but she was unsuccessful. On 2 March 2007 she issued proceedings in the employment tribunal for unfair dismissal and sex discrimination. The issue, which went all the way to the Supreme Court, was whether her effective date of termination was 30 November 2006 or 4 December 2006. If the effective date of her termination was 30 November 2006, her claim for unfair dismissal would be out of time as it would not be within three months of the effective date of termination. 

The Supreme Court held that the effective date of termination was 4 December 2006 as this was the date that Ms Barratt read the letter or had had a reasonable opportunity to read the letter.  As a result, Ms Barratt’s claim was in time.

Takeaway: This case illustrates that communicating the outcome of the decision by letter alone can create uncertainties for HR. Whilst the case relates to a claim of unfair dismissal, it is also relevant to the cut-off date for the last payment of salary and eligibility for company benefits. A practical solution would be to communicate the outcome of the meeting in person at the time but Paragraph 17 of the ACAS Code of Practice on Disciplinary and Grievance Procedures provides that an employer should decide the outcome of the disciplinary meeting "after the meeting" and inform the employee in writing. Therefore, HR should consider arranging a further meeting with the employee, sending the letter by recorded delivery with express instructions that only the addressee can sign for the letter or telephoning the employee to confirm receipt. 

Kulikaoskas v (1) MacDuff Shellfish and (2) Mr Watt – Male employee could not bring a claim for associative discrimination on grounds of partner’s pregnancy

Mr Kulikaoskas and his partner were both employed for less than one month in MacDuff’s shellfish factory.  They were both dismissed. At the time of their respective dismissals, Mr Kulikaoskas’ partner was pregnant. He claimed that he was dismissed because of his partner’s pregnancy after an incident in which he was questioned as to why he was assisting her in lifting heavy weights in the factory. Mr Kulikaoskas claimed that his dismissal was contrary to section 3A of the Sex Discrimination Act 1975 (the "SDA") which prohibits pregnancy discrimination by relying upon an analogy with the ECJ disability discrimination case of Coleman v Attridge Law. Therefore, the EAT had to decide if associative discrimination applies where one person suffers less favourable treatment because of the pregnancy of another person.  To do so, it would have to find that European law required section 3A of the SDA to be "read" as requiring the Court to do so.

The EAT held that European law did not require it and it considered that there was, so to speak, a separate code that deals with pregnancy and maternity.

Takeaway: As of 1 October 2010 the SDA was replaced by the Equality Act 2010 (the "EqA").  It is interesting to note that if the claim were brought under section 13 of the EqA, Mr Kulikaoskas may in fact have been allowed to proceed with his claim as section 13 of the EqA prohibits direct discrimination because of a "protected characteristic".  Under Section 4 of the EqA, pregnancy and maternity are protected characteristics.

Roca Álvarez v Sesa Start España ETT SA – ECJ decision may result in UK employers having to offer enhanced benefits during additional paternity leave

Under an old Spanish law to encourage breast feeding, female employees are entitled to time off during working hours to bottle or breast feed their baby. Male employees are only entitled to take the time off if the child’s mother also has employment status. In this case, the male employee brought a claim as he was refused the time off as his wife was self-employed. The issue as to the lawfulness of the legislation was referred to the ECJ. The ECJ held that the legislation was contrary to the Equal Treatment Directive as a female employee only had to be employed whereas for a male employee to take the time, he and his wife both had to have employment status.

Takeaway: As is evident from the above, any differential in treatment of men and women is always susceptible to challenge. As of 3 April 2011, eligible employees who are fathers of babies born on or after this date will be entitled to take additional paternity leave and may be entitled to additional paternity pay. Commentators are suggesting that this case could be used as a basis for a claim by a male employee to enhanced benefits during the additional paternity period where the employer offers its female employees enhanced maternity benefits. HR needs to ensure that policies and the staff handbook are updated to reflect this new law. It will also need to consider its approach to more problematic issues such as bonuses, pay rises and any enhanced benefits offered to its employees.

And finally… An own goal for Wayne?
Wayne’s £250,000 a week pay deal must be the most successful employee negotiation of these straightened times but the numbers involved will inevitably result in an analogy with the bankers. I’m told the fans on the terraces are already trying to work out what rhymes with banker…


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