Pay up in pregnancy period
UK law says that employers must calculate statutory maternity pay (SMP) using a set formula. This stipulates that SMP has to be based on the woman's normal weekly pay during an eight week reference period ending with the 'qualifying week'. This is the 15th week before the woman is due to give birth.
In Alabaster v Woolwich plc & the Secretary of State for Social Security, however, the European Court of Justice has just decided that employers now have to include any pay rises that come into effect after that 'qualifying week'.
Mrs Alabaster, an employee of the Woolwich Building Society, went on maternity leave on 8 January 1996. She started to receive SMP from the week beginning 7 January.
On 12 December 1995 Mrs Alabaster received a pay increase with effect from 1 December. However, this increase was not reflected in the calculation of her SMP because it came after the relevant period for calculating normal earnings - in her case 1 September to 31 October 1995.
In January 1997 she brought a tribunal complaint against the Woolwich arguing that the failure to pay her the salary increase constituted sex discrimination. After two tribunal rulings in Mrs Alabaster's favour, the Court of Appeal asked the ECJ two questions:Â
- does the calculation of a woman's SMP have to take into account any general pay rise awarded after the end of the reference period but before her maternity leave is completed, even when the pay award itself is not backdated to a date within the reference period?Â
- if she is entitled, how is the pay rise to be taken into account in calculating (or recalculating) the pay due to her during maternity leave?
The ECJ said that any pay rise awarded after the beginning of the period covered by her reference pay must be included in the calculation to decide the amount of pay owed to the woman during her maternity leave. This entitlement is not limited to cases where the employer agrees to backdate the pay award to a date that falls within that period.
In Maria Paz Merino Gómez v Continental Industrias del Caucho the European Court of Justice (ECJ) has ruled that a pregnant worker does not have to take her annual leave during the period of her maternity leave. It also confirmed that this principle applies even when the woman's maternity leave coincides with a period of annual leave that applies to the whole workforce - in this case, a general shutdown.
This is because the purpose of the entitlement to annual leave is different from that of maternity leave. The Working Time Directive must therefore be interpreted as meaning that where the dates of a worker's maternity leave coincide with those of the entire workforce's annual leave, the requirements of the directive relating to paid annual leave cannot be met.
The Employment Relations Bill has now completed its passage through the Commons, and was introduced into the Lords at the end of March.
If it becomes law, one of the new provisions will result in the burden of proof being shifted to the employer to show the reason for the dismissal in trade union dismissal cases, if the employee has less than one year's service. There will be new clauses dealing with intimidation of workers during a ballot for trade union recognition (or derecognition).
In addition, the bill contains measures to improve the operation of the statutory recognition procedure and to simplify the law on industrial action ballots and ballot notices.
The Secretary of State will also have powers to make funds available to independent trade unions to modernise their operations (see LELR 87). Click here to view the chronological stages of the Bill: bills.ais.co.uk/DH.asp?title=d#7.
Instead of following an EAT decision that rolled-up holiday pay can be legal (Marshalls Clay Products v Caulfield, LELR Issue 82), an employment tribunal has decided to refer the issue to the European Court of Justice.
Two questions have been referred in the case of Robinson-Steele v RF Retail Services Ltd:Â
- whether the EC Working Time Directive precludes employers from making 'rolled-up' contractual payments to a worker that include an element of holiday pay, but that do not relate to specific periods of leave taken by the workerÂ
- whether employers should be given credit for such payments if a claim is brought against them for holiday pay.
Under section 163 of the Trade Union and Labour Relations (Consolidation) Act, an employment tribunal can order an employer to continue employing a trade unionist who has been dismissed, if two conditions are satisfied. The first is that the application is lodged within seven days of the dismissal; and the second that the case is likely to succeed.
The benefit for the employee of the interim order is obvious. He or she continues to receive pay and benefits until the full hearing, but does not have to work.Â
In Dowling v Berkely Logistics, the EAT has held that if there is a TUPE transfer after the interim order is made, the individual does not transfer over. This is because the so-called continuation of employment is a 'statutory fiction', and the individual is not, in fact, an employee immediately before the transfer took place.
The DTI has produced figures showing that employers are granting eight out of ten requests to work flexibly from parents with young children.
The statistics show that since last April - when the law was introduced - almost a quarter of the parents who are eligible have taken advantage of the new right.Â
And employers are turning down far fewer requests. The figures show that prior to April 2003, employers were refusing about a fifth of requests. That figure has now almost halved - to 11%.
But the figures also show that only 10% of those asking for a change are men, compared to 16% of women. All in all, about 13% of employees have asked to work flexibly.
The most common requests were for part time and flexi working. To find the survey, go to www.dti.gov.uk/er/inform.htm; scroll down to Other Publications, and look under 'Results of the first flexible working employee survey'.
The House of Lords has reached its first decision on workplace stress - in the case of Barber v Somerset County Council.
Although a borderline case, their Lordships overturned the decision of the Court of Appeal that the employer was not in breach of the duty of care to their employee. It said that Mr Barber suffered a breakdown caused by job-related stress.
By a majority, it decided that the Court of Appeal had not given enough weight to the fact that Mr Barber had been off work in May 1996 for three weeks with no physical ailment or injury. During that time, a doctor certified that his absence was due to stress and depression.
The senior management team should have made more effort to resolve the problems he faced at work. For instance, by reducing his workload in order to help him return to work. That, coupled with the feeling that the senior management team was on his side, might have made a real difference. In any event Mr Barber's condition should have been monitored and, if there was no improvement more drastic action taken. Mr Barber's appeal was therefore allowed.
The case was one of four heard as a composite appeal.