Clarity and complexity

For those who remain as frantic as a litigator's fax machine on Friday at 5.15pm, I bring both good and bad news this month.


The good news (and do not get too excited) is that earlier this month the European Court of Justice (ECJ) gave a ruling that provides greater clarity to potential litigants over the lawfulness of the use of the factor of length of service/seniority when calculating 'pay'.


The bad news is that since employment lawyers do not have enough to do, we have been rewarded with even more law relating to maternity leave and pay (albeit that the changes take effect only in relation to employees whose expected week of childbirth (EWC) begins on or after 1 April 2007).


The ECJ case we celebrate is that of Cadman v HSE (ECJ Case C-17/05), which has attracted a good deal of press attention and confusion. While it relates to equal pay it promises to have significance in other areas of discrimination law - including not least our new favourite, age discrimination.


In essence, the case relates to pay bandings at the HSE (Health and Safety Executive) that govern annual pay increases. These are apparently influenced not only by personal performance but, in effect, length of service. This worked to Ms Cadman's disadvantage in that certain men in her band received higher pay than she, and she brought a claim under the Equal Pay Act 1970.


The case ended up in the Court of Appeal, which then referred the matter to the ECJ for a ruling on how to deal with certain key questions. Following the earlier case of Danfoss (Case 109/88) [1989] ECR 3199, it seemed that the use of length of service criteria by an employer did not need to be justified even where this has a 'disparate effect between relevant male and female employees'. This has caused concern given that we are not all agreed that greater length of service necessarily equals greater experience or ability.


This is especially so when one considers the statistics showing the disparity between men and women in terms of length of service. Therefore, the argument is that such criteria should have to be justified.


The clarity (for those who have not passed out by now) comes in that the ECJ has decided that the general rule is that employers are entitled to use length of service as an appropriate and legitimate way of rewarding experience that allows an employee to do a better job. Accordingly, employers do not ordinarily have to justify this by establishing that this criterion is appropriate as regards a particular job, in other words, that the experience really does have the effect. This to an extent blows away the cobwebs from Danfoss and is particularly timely as employers grapple with age discrimination.


However, as always there are a couple of 'buts'. First, the ECJ stated that the general rule will prevail 'unless the worker provides evidence capable of raising serious doubts in that regard' - something that Danfoss failed to make clear. Although the burden will be on the employee, clearly there may be circumstances where such doubt could be shown (is, for example, length of qualification for lawyers necessarily as helpful in assessing skills and contribution as actual post-qualification experience?)


Secondly, although parallels may be drawn when assessing age discrimination cases, and while the law specifically smiles on the use of length of service in assessing benefit levels, it states clearly that rewarding service of more than five years must be justified.


The good news is, I admit, seldom that good in this column, but neither is the bad news so bad. Here is a short summary of the highlights of the new maternity rules that apply (mainly) in respect of births/adoptions where the EWC or adoption date is on or after 1 April 2007:


  • The period of statutory maternity pay (SMP), maternity allowance (MA) and statutory adoption pay (SAP) will be extended from 26 weeks to 39 weeks.


  • The small employers' exemption will disappear so that employers with five or less employees will no longer be exempted from a finding of automatic unfair dismissal where they do not allow an employee returning from additional maternity leave (AML) or additional adoption leave (AAL) to return to the same or a similar job (effective from 1 October 2006).


  • The qualifying period for AML will finally be removed (currently all pregnant employees are entitled to six months' ordinary maternity leave but only employees with 26 weeks' service at the start of the 14th week before the EWC qualify for a further six months' AML).


  • The period of notice that an employee has to give the employer when returning early from AML or AAL will increase from 28 days to eight weeks.


  • The introduction of 'keeping in touch' days. Where both parties agree, those on maternity or adoption leave will be able to return to work for up to ten days during their leave without losing their right to leave or SMP/SAP. Women in receipt of maternity allowance (MA) will also be able to work for their employer for up to ten days during their MA period without losing any MA. Employees who undertake, consider undertaking, or refuse to undertake such work will be protected from detriment or dismissal on those grounds. Employers will also be entitled to make 'reasonable contact' with employees while they are on maternity leave.



    • From 6 April 2007, there will be a right for those who care for adults (that is, those older than the age of 18 years) to request flexible working. At present, only parents of children younger the age of six can request flexible working.


    We have now had a month to get over the age discrimination seminars. Time to dust off the powerpoint slides of dodgy images of expectant mothers and contacts lists perhaps?


    By Darren Clayton, Doyle Clayton, London