Littler Global Guide - United Kingdom - Q2 2021

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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No Direct Sex Discrimination in Withholding of Allowance Pay During Maternity Leave

Precedential Decision by Judiciary or Regulatory Agency

Authors: Raoul Parekh, Partner and Sanika Karandikar, Associate - GQ | Littler

On April 28, 2021, the UK Court of Appeal found that the City of London Police had not directly discriminated against a female police officer by not paying her a “London allowance” (an additional allowance paid to employees based in London) during her maternity leave. The Court of Appeal held there was no direct sex discrimination because the employer had not paid the London allowance due to the claimant’s general absence from duty/unavailability to work, and not because of her maternity leave. This case is very fact-specific but highlights the importance of having clear provisions in maternity polices about entitlements during maternity leave.

Appeal Tribunal: “Gender-Critical” Beliefs Can Be Protected Under Discrimination Law

Precedential Decision by Judiciary or Regulatory Agency

Authors: Raoul Parekh, Partner and Ben Smith, Associate - GQ | Littler

On June 10, 2021, the UK Employment Appeal Tribunal (EAT) held that “gender-critical” beliefs (a broad label but which included in this case a belief that sex is immutable and not to be confused with gender identity) were capable of being protected under UK discrimination law. UK law protects employees from discrimination because of their “religious or philosophical belief.” An Employment Tribunal last year had found that the “gender-critical” beliefs in this case were not capable of respect in a democratic society and therefore were not protected. That decision has been overturned by the EAT, who found that only very extreme beliefs such as Nazism and totalitarianism are not protected.

Expressions of beliefs are not automatically protected, and this decision does not give employees a free pass to express their beliefs in ways that are harassing or harmful in the workplace. However, this decision potentially significantly expands the range of beliefs capable of protection, and therefore employers should handle the growing volume of workplace issues arising from a clash of beliefs with sensitivity and caution as the risk of litigation is high.

Appellate Court Rules on Trade Union Freedom Right in Platform Economy

Precedential Decision by Judiciary or Regulatory Agency

Authors: Raoul Parekh, Partner and Kate Richards, Associate - GQ | Littler

On June 24, 2021, the UK Court of Appeal unanimously held that riders of an online food delivery company do not fall within the scope of the trade union freedom right (concerning freedom of assembly and association) of the European Convention on Human Rights because they are not in an employment relationship with the company for purposes of Article 11 of the Convention. This upheld the earlier decisions of the Central Arbitration Committee and the High Court.

The genuine and unfettered right of substitution given to riders was central to the assessment of nonemployed worker status and the decision shows the importance of personal service when determining this issue. As there was no “employment relationship,” the riders were not entitled to be recognized for collective bargaining purposes. This is good news for platform economy companies, however, this decision primarily concerned human rights law and the Court of Appeal acknowledged that the judgment would not necessarily apply to all riders.

Employment Appeal Tribunal: No Sex Discrimination If Paying Less for Parental Leave Than for Adoption Leave

Precedential Decision by Judiciary or Regulatory Agency

Authors: Raoul Parekh, Partner and Alison Sneddon, Senior Associate - GQ | Littler

On March 31, 2021, the UK Employment Appeal Tribunal (EAT) confirmed that it was not sex discrimination for an employer to pay a man on shared parental leave (SPL) less than a woman on adoption leave (AL). In UK law, family leave (including SPL, AL, and maternity leave) is paid at set statutory rates with employers having discretion over whether to voluntarily pay more. The employer in this claim did so for AL but not SPL.

The EAT rejected the claimant’s assertion that this was direct sex discrimination. They decided that the correct comparison to make was between a man and a woman on SPL and, as they both would have received the same pay, there was no sex discrimination. The decision is a welcome clarification for employers who want flexibility between the enhanced pay offerings of different leave schemes. However, legal and employee engagement risks of doing so remain.

Winding Down of COVID-19 Furlough Scheme and Other Measures

New Regulation or Official Guidance

Author: Raoul Parekh, Partner - GQ | Littler

On September 30, 2021, the UK’s COVID furlough scheme (a government wage subsidy covering 80% of wages, capped at £2,500 monthly) is due to end. It is unlikely to be extended again. From July 1, 2021, the government will reduce its contribution to 70% of wages (up to a maximum of £2,187.50 per month), with employers required to contribute 10% of wages (capped at £312.50 per month). In August and September 2021, the government’s contribution will reduce to 60% (capped at £1,875 per month) with employers required to contribute 20% (capped at £625 per month). Employers will need to continue paying social security and pension contributions on furlough pay.

Further, the ability for employers to carry out right to work checks on employees and prospective employees remotely, allowing for original documents to be checked over a video call, is due to end on August 31, 2021. From September 1, 2021, employer right to work checks will again require a face-to-face meeting and inspection of a physical copy of original documents.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.