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Employment law case updates - April 2014

2 April 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

Mothers using surrogates are not entitled to maternity leave

The European Court of Justice (ECJ) has confirmed that mothers of children born through surrogacy arrangements are not entitled to maternity leave under the Pregnant Workers Directive. The ECJ held that there is no sex discrimination, as fathers of children born through surrogacy are also not entitled to paid leave.

There is no also disability discrimination if the reason a surrogate is used is because of a medical condition of the mother.

It is possible that a disability claim could be brought in the UK as the definition of disability is wider here than in the relevant Directive, however, what is most surprising about this decision is that it doesn't address the legal gap between the rights given to pregnant women and adopters and the lack of rights for women who use a surrogate.

(CD v ST C-167/12 and Z v A Government Department and the Board of Management of a Community School C-363/12, ECJ)

Poorly worded non-compete restriction can be enforceable

The High Court has granted an injunction to an employer, even though the wording of the 12 month non-compete restrictive covenant on which it sought to rely provided it with no protection. The relevant covenant stated that the non-compete would only apply if the employee was engaged in connection with any of the same products with which he was involved at his former employer.

As no other company provided the same products, read literally, the covenant provided the employer with no protection. However, the High Court held that the employer did have a legitimate business interest to protect and that the remaining restrictions in the contract did not provide adequate protection on their own.

The High Court decided to read words into the non-compete covenant so that it became enforceable, and granted employer the requested injunction. This is a particularly unusual case and extreme caution should be exercised before relying on it.

(Prophet plc v Huggett, High Court)

Secret recordings of meetings can be accepted as evidence

The Employment Appeal Tribunal (EAT) has confirmed that secret recordings of private discussions, which took place during breaks in disciplinary and grievance hearings, were admissible as evidence. The employer tried to argue that allowing such recordings to be admitted in evidence would discourage employers from having full and frank deliberations.

In this case, however, the EAT found that the comments secretly recorded were not deliberations in relation to the matters under consideration.

Modern technology (especially smart phones) makes recording of meetings very easy. Employers therefore need to be wary of the possibility of secret recordings even where recording is expressly prohibited by disciplinary and grievance procedures.

(Punjab National Bank (International) Ltd v Gosain, EAT)

Dismissal for sickness absence due to post-natal depression is not discrimination

The EAT has held that an employee was not discriminated against because of her pregnancy or sex when she was dismissed for capability after taking several months off work suffering from post-natal depression.

No specific discrimination protection is available to an employee treated less favourably because of a pregnancy-related illness after her maternity leave ends, even if that illness started while she was still on maternity leave.

However, she may be able to pursue a sex discrimination claim if she can prove that a male comparator would have been treated differently. In this case, the employee was unable to do so.

(Lyons v DWP Jobcentre Plus, EAT)

This article was written by Kirsti Laird and Clare Davis.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com