Employment Law E-Bulletin Issue 31

• Employees and agency workers in a ‘qualifying relationship’ with a pregnant woman or her expected child entitled to take time off to accompany the woman to antenatal appointments.
• The Illegality defence did not defeat a claim for race discrimination despite no right to work in the UK – Hounga v Allen & Anor 2014 [2014] UKSC 47
• Employment Tribunal wrong for taking into account a Claimant’s insurance policy when awarding costs – Mardner v Gardner [2014] UKEAT/0438/13

Employees in a ‘qualifying relationship’ with a pregnant woman are now entitled to take time off to accompany the woman to antenatal appointments.

The Children and Families Act 2014 now entitles any employee or agency worker to take up to six and a half hours unpaid time off to attend two antenatal appointments. Prior to this only pregnant employees or agency workers had the right to take time off during working hours to attend antenatal appointments. This meant that previously the husband, partner or father of a pregnant woman’s child had to use up holiday if they wished to accompany them to appointments. 

An employee or agency worker has a ‘qualifying relationship’ with a woman or her expected child where:

• they are the pregnant woman’s husband or civil partner;
• they live with the woman (whether in a heterosexual or same-sex relationship) in an enduring family relationship and are not a relative of the woman;
• they are the expected child’s father;
• they are one of a same sex couple who is treated as the child’s other parent where the child was conceived by donor sperm; or
• they are the potential applicant for a parental order in relation to a child expected to be born to a surrogate mother.

The employer may request proof of an employees ‘qualifying relationship’ and/or evidence that the purpose of the time off is to attend antenatal appointments on the advice of a registered doctor, midwife or nurse as well as the date and time of the appointment.

Any employee or agency worker who is unreasonably refused this time off to accompany a pregnant woman may bring a tribunal claim. They are also protected from being subjected to a detriment for taking such time off and the dismissal of an employee will be automatically unfair if the principal reason for their dismissal was that they took such time off.

The Department for Business Innovation and Skills has recently released an employer guide which can be found on the www.gov.uk website.

The Illegality defence did not defeat a claim for race discrimination despite no right to work in the UK – Hounga v Allen & Anor 2014 [2014] UKSC 47.

The facts of this case are as follows: Miss Hounga who was of Nigerian nationality obtained a fake visa and entered the United Kingdom in order to work illegally for the respondent, Mrs Allen. Despite the fact Mrs Allen knew she did have the right to work in the United Kingdom and that her visa ran out in July 2007, she continued to employ Miss Hounga as a live in minder for her children. Miss Hounga suffered serious abuse at the hands of Mrs Allen and was subsequently dismissed from her employment and told to leave Mrs Allen’s home.

Miss Hounga brought various claims in the Employment Tribunal (ET) including unfair dismissal and race discrimination.

The ET awarded Miss Hounga £6,187 for injury to feelings in relation to her race discrimination claim, to which Mrs Allen appealed. The appeal was decided different ways in the Employment Appeal Tribunal (EAT) and the Court of Appeal and went to the Supreme Court.

Miss Hounga succeeded before the Supreme Court which upheld her appeal concluding that there was an insufficiently close link between her immigration offences and her claim for race discrimination. The immigration offences were merely a context for which the discrimination was committed. Allowing the award of compensation for such discrimination does not in the eyes of the Supreme Court, amount to condemning illegality.

Points to note:

• Although this was an extreme case based on unusual facts, it serves as a useful reminder to employers to be careful when dismissing workers who are subject to immigration control.

• Even if a worker does not have the right to work in the UK an employer could still face a discrimination claim.

• The case highlights that the approach taken towards illegality where there are competing grounds of public policy will be to try to balance those interests. Here the principle of protecting victims of trafficking and sanctioning those involved in trafficking and exploitation was applied.

• Employers should continue to ensure they carry out the necessary recruitment checks to ensure that employees are employed legally.

Employment Tribunal wrong for taking into account the Claimants insurance policy when awarding costs – Mardner v Gardner and others [2014] UKEAT/0438/13

The Claimant, Mr Mardner, was employed as the director of the charity, the Essex Racial Equality Council. The charity ran out of money and was unable to function any longer, nor pay the Claimants wages therefore, the Claimant was dismissed.

The Claimant succeeded in his case for unfair dismissal in the ET and accordingly applied for a costs order. In this case the Respondents were trustees of the charity which was unincorporated and therefore had no legal identity.

The ET refused to make a costs order against the Respondents taking the view that the Claimant was not personally out of pocket due to the fact that the case was funded by his legal expenses insurance. The judge also took into account the fact that the Respondents were volunteers and trustees of the charity and were, in that capacity, already personally liable for Mr Mardner’s claim. Mr Mardner appealed to the EAT on the grounds that such considerations of the insurance policy should have been disregarded by the judge.

On appeal, the EAT held that the ET had made an error in their decision not to award costs to the Claimant. The EAT Judge referred to the judgement in Parry v Clever [1970] AC 1, which approved and serves to prevent Respondents avoiding the cost consequences of their unreasonable behaviour on the basis that the Claimant prudently entered into an insurance policy. Permitting a party to do so would be allowing the paying party to benefit from the receiving party’s insurance policy. In addition, the Judge clarified that, awarding costs is by virtue of statutory instrument, rather than common-law damages.

Allowing the appeal, the EAT held that the insurance policy was an irrelevant consideration and rendered the decision unsafe, as well as against public policy. The EAT ordered that the Respondents were liable for costs in the Claimant’s favour.

Points to Note:

• This case confirms that it will generally be inappropriate for the ET to take account of the receiving party’s means (including whether or not they are insured) when deciding whether to make a costs order.

• The Employment Tribunal rules only allow the ET to take into consideration the paying party’s means when making a costs order.

• The EAT did suggest that it may be relevant for the ET to have regard to the fact that the paying party is a person who works on a voluntary basis when deciding whether or not to make a costs award.