In May 2019, the Court of Appeal, in two joint cases, announced a decision that the failure to pay enhanced shared parental pay to match enhanced maternity pay was not sex discrimination, the court ruled that there was no direct discrimination, as a male on shared parental leave for childcare purposes is not in any comparable circumstances to a birth mother on leave for health and safety purposes.
Therefore, men and women in comparison were not placed at any particular disadvantage, the sex equality clause does not apply where there is ‘special treatment’ relating to maternity.
The two joint cases, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, concerned claims of discrimination in relation to shared parental leave allowances. In both cases, the employer had enhanced the pay of women during maternity leave, without doing the same for shared parental leave.
Capita provides an occupational maternity pay scheme to their female staff, the first 14 weeks of leave is paid at the employees full pay, followed by 25 weeks of statutory maternity pay. Leicestershire Police Force provide their staff with 18 weeks of maternity leave at full pay. It also provides a shared parental leave scheme which mirror the statutory shared parental leave requirements.
Mr Ali brought a claim against Capita, for unlawful direct sex discrimination. He accepted the fact that there was no direct connection between himself and a mother during the first two weeks of maternity leave, the compulsory period of maternity leave, which is in place to allow a mother on leave to recover after giving birth. However, Mr Ali’s complaint was in relation to the following 12 weeks of leave at full pay which were only paid to female members of staff.
Mr Hextall brought a similar claim against his employer, Leicestershire Police Force, to the Supreme court of appeal. Mr Hextall alleged that his employer’s policy caused a particular disadvantage to men and was unlawful discrimination.
The Supreme Court has this month refused permission to appeal this decision which effectively means that it will remain binding.
IR35 Off-payroll Working – are you ready?
The readiness of businesses for 6th April 2020 introduction of the Off-payroll Working rules within the private sector has recently come under scrutiny from accountancy bodies at the House of Lords finance bill subcommittee evidence hearing.
Representatives from the accountancy bodies told the subcommittee that businesses are not ready for the reforms to come into effect in April because the “legislation is not yet ready”, issues were also raised over the uncertainty of the rules.
HMRC have informed the ICAEW that answers to the outstanding 100 plus questions will become apparent when the guidance is released.
The finance bill subcommittee were also informed that small and medium-sized businesses (SME’s) are less ready because unlike large employers that may have in-house tax teams, it was also stated that SME’s are less knowledgeable about tax, never mind something as complicated as the off-payroll reforms have become.
Although it is extremely unlikely that the start date will be put back again, the subcommittee asked that HMRC need to provide employers with some assurances that the enforcement is going to be proportionate because we don’t want to see any draconian methods taken by some HMRC officers.
It was suggested by the subcommittee that these issues could be resolved through a bedding-in period and as such it is too early to properly determine how the off-payroll reforms have affected the public sector, what we do know, is that lots of contractors left the public sector to go to work elsewhere and consequently the public sector have had problems with resourcing and recruiting.
Some reports suggest that 31 out of 32 contractors walked off a job at the Ministry of Defence.
This wasn’t the only time Westminster felt the effect of IR35 last week, 150 freelancers and contractors organised a protest outside parliament to call for a halt to the off-payroll reforms.
