No direct sex discrimination in the withholding of compensation during maternity leave

Prior decision by the judiciary or regulatory agency

On April 28, 2021, the UK Court of Appeal ruled that the City of London Police did not directly discriminate against a female police officer by failing to pay her a “London allowance” (an additional allowance paid to employees based in London) during her maternity leave. to leave. The Court of Appeal ruled that there was no direct sex discrimination because the employer failed to pay the London indemnity due to the claimant’s general absence / unavailability from work, and not because of her maternity leave. This case is very factual but underlines the importance of having clear provisions in maternity policies about rights during maternity leave.

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

Prior decision by the judiciary or regulatory agency

On June 10, 2021, the UK Employment Appeal Tribunal (EAT) ruled that “gender critical” beliefs (a broad label but in this case included a belief that sex is immutable and should not be not to be confused with gender identity) were capable of being protected under UK Discrimination Act. UK law protects employees from discrimination on the basis of their “religious or philosophical belief”. Last year, a labor court ruled that the “gender critical” beliefs in this case were not respectable in a democratic society and therefore were not protected. This decision was overturned by the EAT, which found that only very extreme beliefs such as Nazism and totalitarianism are not protected.

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

Rules of the Court of Appeal on the right to freedom of association in the platform economy

Prior decision by the judiciary or regulatory agency

On June 24, 2021, the UK Court of Appeal unanimously ruled that runners of an online meal delivery business did not fall within the scope of the right to freedom of association ( concerning freedom of assembly and association) of the European Convention on Human Rights because they do not have an employment relationship with the company within the meaning of Article 11 of the convention. This confirmed previous decisions of the Central Arbitration Committee and the High Court.

The real and unlimited right of substitution granted to runners was at the heart of the assessment of the status of unemployed and the decision shows the importance of personal service in deciding this question. As there was no “working relationship”, riders were not entitled to be recognized for the purposes of collective bargaining. This is good news for companies in the platform economy, however, this ruling was primarily about human rights law and the Court of Appeal recognized that the ruling would not necessarily apply to all. runners.

Labor appeal court: no discrimination based on sex if you pay less for parental leave than for adoption leave

Prior decision by the judiciary or regulatory agency

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

The EAT rejected the claimant’s assertion that this was direct sex discrimination. They decided that the correct comparison to be made was between a man and a woman on SPL and since they would both receive the same salary, there was no gender discrimination. The decision is a welcome clarification for employers who want flexibility between the enhanced compensation offerings of different leave plans. However, legal and employee engagement risks remain.

End of COVID-19 leave plan and other measures

New regulation or official direction

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

In addition, the possibility for employers to remotely perform right to work checks of employees and potential employees, allowing the original documents to be verified by video call, is due to end on August 31, 2021. From September 1, 2021 , the employer’s right to work, checks will again require a face-to-face meeting and inspection of a physical copy of the original documents.