Employment Law

What is Shared Parental Leave (“SPL”)?

SPL is a new entitlement for eligible parents of babies due, or children placed for adoption, on or after 5th April 2015.

SPL enables parents to share the caring responsibility evenly, or have one parent take the main caring role, depending upon their preferences and circumstances.

The amount of leave available is calculated using the mother’s entitlement to Maternity Leave/Adoption Leave which allows her to take up to 52 weeks of leave.  If she reduces her Maternity Leave/Adoption Leave entitlement then she and or her partner may opt into SPL and take any remaining weeks as SPL.

Eligibility criteria

To quality for SPL for one or both parents, the mother must:-

1. Have a partner.

2. Be entitled to maternity leave/adoption leave; or to statutory maternity pay/adoption pay or maternity allowance; and

3. Have curtailed, or given notice to reduce, their maternity leave/adoption leave or their pay/allowance.

The parent who intends to take SPL must:-

1. Be an employee;

2. Share the primary responsibility for the child with the other parent at the time of birth or placement for adoption; and

3. Have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.

In addition a parent wanting to take SPL is required to satisfy the “Continuity of Employment Test” and their partner must meet the “Employment and Earnings Test”.

(i)         “the Continuity of Employment Test”

The person has worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date/matching date and is still working for the employer at the start of each leave period.

(ii)         “the Employment and Earnings Test”

In the 66 weeks leading up to the baby’s expected due date/matching date, the person has worked for at least 26 weeks and earned an average of at least £30.00 a week in any 13 weeks.

Sometimes only one parent will be eligible. For example a self-employed parent will not be entitled to SPL themselves but they may still pass the Employment and Earnings Test so their partner, if they are an employee, may still qualify.

If both parents are employees and both meet the qualifying requirements then there will be a joint entitlement and the parents will have to determine how to divide the leave and entitlement once the mother has decided to curtail her maternity/adoption leave.

Shared Parental Pay (“SPP”)

A mother, subject to certain criteria, will be entitled to statutory maternity pay/adoption pay/maternity allowance up to 39 weeks.  If the mother gives notice to reduce her entitlement before she has received it for 39 weeks then any remaining weeks could become available as SPP.

To qualify for SPP an employee needs to have met the “Continuity of Employment Test” as above and their partner must meet the “Employment and Earnings Test” as above.  In addition the employee must also have earned above the lower earnings limit in the 8 weeks leading up to and including the 15th week before the child’s due date/matching date and still be employed with the same employer at the start of the first period of SPP.

Currently the lower earnings limit is an average salary of £111.00 for the 8 weeks prior to the 15th week before the expected due date or matching date.

Currently SPP is paid at the rate of £138.18 per week or 90% of your average weekly earnings (whichever is lower).  SPP will increase to £139.58 per week from the 5th April 2015.

SPL Policy

To ensure consistency in making and responding to notifications regarding SPL it is very useful for employers to set out the notification arrangement and the employees’ rights in a policy.

A policy should include:-

1. A statement advising that all notices for a continuous period of leave, from eligible employees, will be accepted and that all request for discontinuous leave will be considered.

2. The amount of notifications to book/vary leave available to the employee.

3. How employees should inform their employer of their entitlement to SPL, who the notification should be sent to and what should be included in it.

4. How a notice to book leave will be handled.

5. The time limits for dealing with a notice to book SPL.

6. SPL “in touch” days.

7. Contact during SPL.

8. The payments an employee may be entitled to while on SPL.

9. Where to find forms and further information.

If you need advice regarding shared parental leave or assistance with drafting a company policy then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or Gemma Mayer on 01755 722261 or email gemma.mayer@maplessolicitors.com

The use of social media (e.g. Facebook, Twitter etc) is increasing and employers cannot ignore the potential effect of it.  As employers you need to know what action you can take against employees who commit social-media related misconduct either in the course of their work or in their personal life.

There has been a recent case in the Employment Appeal Tribunal (“EAT”) which gives some help in this regard, although employers should be aware that all cases are fact sensitive.

In Game Retail Limited –v- Laws, Mr Laws was employed as a risk and loss prevention investigator with responsibility for over 100 retail stores.  He opened a personal Twitter account and began to follow the Twitter accounts of those stores in order to monitor their activity, although his account did not specifically associate him with his employer.  One local manager in fact tweeted an encouragement to other stores to follow Mr Laws and 65 stores did so.

About 12 months after the Twitter account was opened, an anonymous store manager notified one of Game’s regional managers about allegedly offensive and abusive tweets that Mr Laws had posted.  An investigation was conducted and Mr Laws was found guilt of gross misconduct.  He was summarily dismissed and Mr Laws made a complaint to an Employment Tribunal for unfair dismissal.

At first instance the Employment Tribunal Judge found in Mr Laws favour.  He examined the tweets in detail and accepted that customers and employees of Game might have been shocked or offended by them.  However he considered that two main factors made the dismissal unfair.  Firstly the tweets were posted for private use and it had never been established that any member of the public or employee of Game had access to Mr Law’s tweets or associated him with Game and secondly the employer’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.

Game appealed to the EAT.  The EAT allowed the appeal and remitted the case back to the Employment Tribunal for a re-Hearing by a different Judge.

The EAT held that the Judge’s suggestion that Mr Laws’ followers were restricted to social acquaintances was wrong. The 65 stores that had followed Mr Laws and would have seen the tweets and any customers who had picked up on Mr Laws’ account, perhaps after his account was recommended by a local manager, would have seen them to.  Although there is a balance to be drawn between an employer’s desire to remove or reduce reputational risks from social media communications by its employees and the employee’s right of freedom and expression, and although it might be relevant that social media use is intended to be private, in this instance the Employment Judge did not properly test the question of whether Mr Laws’ usage was indeed private.  He had failed to consider the implication of Mr Laws’ followers including 65 stores and the fact that he was knowingly posting the offending tweets in that context.

Daven Naghen, head of our employment team, has commented as follows upon this case:-

“In this instance the “offensive” tweets appear to have been seen by at least one colleague of Mr Laws, and were also readily accessible for other co-workers as well as possibly customers.  The nature of the tweets were therefore potentially very damaging to the reputation of the employer, and therefore there may have been good grounds for a dismissal here with the following of a proper procedure.

It would have undoubtedly helped the employer here had there been a clear social media policy giving guidance on the sort of conduct that is acceptable or non-acceptable on social-media sites.

Tribunals will take into account many factors in assessing whether a social-media related dismissal is fair.  Such factors will include:-

(i)         The nature and severity of the comments made by an employee;

(ii)         The subject matter of those comments;

(iii)        The extent of any actual or potential damage to the employer’s reputation;

(iv)        Whether there has been a breach of confidentiality;

• Whether the employer has a social media policy and whether employees have been

given training in that policy; and

• Whether the comments made by the employee were made during working hours

and/or using the employer’s equipment.

In any such situation the employer should ensure that a full and fair disciplinary process is followed and that a fair and objective consideration is given to these factors in order to minimise the risk of an employee making a successful claim for unfair dismissal.”

If you need guidance regarding social-media related misconduct or advice in respect of a social-media policy then please contact Daven of either 01775 722261 or email grant at daven.naghen@maplessolicitors.com or write to or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

Introduction

2016 has been a very interesting year with important and significant cases in the field of employment law.  One of the most interesting cases was that of Ajaj v Metroline West Ltd where the Employment Appeal Tribunal (“EAT”) held that pulling a sickie could be a matter of gross misconduct which could justify a dismissal.

The Facts

Mr Ajaj was a bus driver for Metroline West Ltd.  He had an accident at work where he slipped on a wet floor and then claimed that he was unfit to work due to a foot injury.  Although his injury was supported with evidence from a physiotherapist and an occupational health adviser, Metroline West Ltd had its doubts.  As a result they undertook covert surveillance of Mr Ajaj and obtained footage of him walking swiftly and carrying large bags while shopping.  As a result they started a disciplinary process against him on the grounds that he made a false claim for sick pay, that he misrepresented his ability to attend work and made a false claim of an injury at work.  He was subsequently dismissed by Metroline West Ltd.  Mr Ajaj claimed unfair dismissal.  Initially the Employment Tribunal found in his favour, but Metroline West Ltd appealed to the EAT.

The Decision

The EAT found that the Employment Tribunal had been mistaken in considering the fairness of the dismissal upon the grounds of capability, since the Tribunal found that notwithstanding evidence of exaggeration of the ability to walk there was no evidence that Mr Ajaj had exaggerated his ability to perform his contractual/work duties.   The EAT held that the Tribunal’s consideration of capability was irrelevant as this was a matter of misconduct.  In fact the EAT held that since the Claimant had exaggerated the effects of this injury then this was gross misconduct as it was an act of dishonesty and a fundamental breach of trust and competence.

Analysis

Daven Naghen, head of our Employment Team has commented on the case as follows:-

“This case is good news for employers, as provided the employer has reasonable grounds for believing the employee is pulling a sickie it may consider summary dismissal upon the basis that dishonesty about illness/injury is gross misconduct.  Hence for example an employee ringing up and putting on a croaky voice claiming a cold, when just hung over, may run the risk of dismissal if the employer has or obtains evidence of this dishonesty.  Employees now know that pulling a sickie is a very risky business.”

If you are an employer or an employee and require advice on any issue relating to sickness absence/dismissal then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment at our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.