Miss K Butler-Rice v Mersey Care NHS Foundation Trust: 2406815/2024
EMPLOYMENT TRIBUNALS
Case No 2406815/2024
Between
Miss K Butler-RiceClaimantMersey Care NHS Foundation TrustRespondent
Before
Employment Judge JohnsonRyan Ross (instructed by counsel) for claimantPhil Loftus (instructed by solicitor) for respondentDate 8 May 2025
JUDGMENT
The judgment of the Tribunal is that:(1) The complaint of unauthorised deductions from wages is well founded. The respondent made unauthorised deductions from the claimant’s wages in the period from May to November 2024 in relation to their failure to pay the claimant’s entitlement to shared parental leave pay under the occupational scheme provided under Section 15 of the NHS Agenda for Change Agreement.(2) The claimant was not subject to a detriment contrary to section 47C of the Employment Rights Act 1996 arising from the respondent’s failure to pay the claimant the shared parental leave pay.(3) The question of remedy in relation to the unauthorised deductions will be determined at a remedy hearing to be listed on a date to be advised.
REASONS
[1]These proceedings arose from the claimant’s application for shared parental leave and the respondent’s decision that she was not entitled to access payments relating to that leave. She is a band 5 Nurse Practitioner. They believe she was not entitled to those payments because she had insufficient service with the respondent when her partner’s expected birth due date arose. This was because the continuity test existing within the respondent’s Family Leave Policy was asserted to disqualify the claimant from receiving these payments.[2]The claimant believes that because her continuous NHS service dated from 4 November 2019 (despite having only commenced employment with the respondent on 4 September 2023), she was entitled to receive the relevant shared family leave payments. Essentially, the respondent argues that the important factor is whether the claimant was employed by the same employer rather than considering their NHS continuous service.[3]The claimant has brought a complaint of unlawful deduction from wages contrary to section 13 Employment Rights Act 1996 (ERA) and argues that she has suffered detriments consequently contrary to section 47C Employment Rights Act 1996 (ERA).[4]A claim form was presented on 23 October 2024 following a period of early conciliation from 12 August to 23 September 2024. A response resisting the claim was presented on 3 December 2024. The case was listed for a final hearing on today’s date.
Issues
[5]The issues which the Tribunal has been asked to consider are: a) Did the claimant suffer an unlawful deduction from pay by reason of her not receiving parental leave contrary to section 13 ERA 1996? b) If so, did this amount to a detriment under section 47C ERA 1996? c) If so, how much by way of remedy, should the claimant receive. Evidence used[6]The claimant provided a witness statement and gave oral evidence at the hearing.[7]The respondent provided a witness statement from Samuel Williams who is the Payroll Operations Manager and who attended the hearing in expectation of giving oral evidence.[8]Mr Ryan explained that this was a case where the Tribunal was being asked to consider arguments relating to contractual interpretation. In reality, this was a hearing where legal argument was more important. He did not feel that Mr Williams’ evidence, (whom he believed simply gave an opinion as to how the claimant’s contract of employment and Agenda for Change worked in relation to the claimant), could not really assist with the decision that I was expected to make. Accordingly, Mr Williams’ evidence was not challenged in cross examination, but I accepted that the factual background was largely agreed, and I would mainly be relying upon each representative taking me to the relevant parts of the contractual documents within the hearing bundle. Even the correspondence between the parties played little part in my consideration of the issues and my decision.[9]A 563-page bundle was provided which included the claim form, response, case management documents and documents relevant to the case including contracts of employment and terms and conditions. Although the bundle seemed to be unusually large, it consisted of NHS policies and procedures relating to family friendly working and continuity of employment which were relevant issues in this case.
Findings of fact
[10]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that I am required to make.[11]In terms of the findings that I make, I have reached its decision on what I consider to be on balance of probabilities the most likely way/reason in which an incident arose. The claimant[12]The claimant was employed as a Band 5 Nurse Care Practitioner. She had originally worked for the Liverpool University Hospitals NHS Foundation Trust from 10 November 2019. This period of employment ended on 31 July 2023. There was then a brief gap in her employment from 31 July to 4 September 2023 when she began working for the respondent at Bootle Health Centre. The claimant left the respondent’s employment on 17 November 2024 which was the date when she was due to return from parental leave with the respondent.[13]The claimant's partner commenced a period of maternity leave on 20 November 2023 when she was pregnant with their second child. The birth was brought forward to 21 November 2023 from 20 December 2023. The claimant’s partner ended her maternity leave on the 19 May 2024 and returned to work six months after the maternity leave had begun.[14]I accepted that the claimant and her partner carefully planned maternity and parental leave taking account of what they believe could be received by way of maternity and parental leave pay in order that both could have a period with their new baby. It was the intention of the claimant that she would commence shared parental leave with a belief that she could receive the balance of shared parental leave pay from 20 May 2024 and continuing until November 2024.[15]However, although the claimant was allowed to commence this period of parental leave, she was informed on 20 May 2024 by her Team Leader Gabriella Hall, that she would not be eligible to the respondent’s Shared Parental Pay. As the claimant had already commenced her shared parental leave, Ms. Hall had to apologetically send her a message confirming the respondent’s decision as she was not in the workplace, (p542 of the bundle).[16]The claimant believed that she was entitled to contractual shared parental leave pay from the period of 20 May 2024 to 12 August 2024, (no entitlement being remaining and payable from 13 August until November 2024). In response to her employer's refusal to allow Shared Parental Pay, she challenged the decision with the support of the Royal College of Nursing (RCH), and on 11 July 2024, she raised a grievance, (pp104-109). This grievance was rejected by the respondent on 9 August 2024 on the grounds that as it related to the terms and conditions under an NHS national agreement (Agenda for Change), and that the respondent’s grievance policy could not deal with those provisions, (p111).[17]The claimant commenced early conciliation with ACAS on 12 August and following the issuing of an early conciliation certificate on 23 September, she presented a claim form to the Tribunal on 23 October 2024. A complaint for unlawful deduction from wages (section 13 ERA), for shared parental pay from 20 May 2024 to 12 August 2024 was brought amounting to 13 weeks x £184.03 and totalling £2,393.39. The claimant also argues that as this wages claim involves a failure to pay shared parental pay, the claimant also suffered a detriment under section 47C ERA. The claimant’s contractual documentation[18]The claimant’s contract of employment relating to the respondent is dated 23 August 2023, (pp42-57). In Part 1 of this document, the respondent acknowledged that the claimant had Continuous NHS Service from 4 November 2019 which was when she began working for the Liverpool University Hospitals NHS Foundation Trust, (p45). Part 2 of the document at section 5 described ‘Reckonable Service’ as being (where relevant): ‘5.1 Your continuous service with any NHS employer counts as reckonable service, in respect of NHS agreements on redundancy, maternity, sick pay and annual leave. 5.2 […] 5.3 […]’[19]In addition to the contract of employment, the claimant’s employment was also regulated by Agenda for Change (‘AfC’), which is a national collective agreement, and which is included within the hearing bundle (described as ‘NHS Terms and Conditions of Service Handbook and dated March 2024), (pp213-536). It is a large document but in relation to this case and given that it related to Shared Parental Leave and payments, I was only asked to consider a narrow range of its provisions by the parties.[20]Section 15 deals with ‘Leave and pay for new parents’, (p291). Within the Introduction to this section, paragraph 15.3 advises that paragraphs 15.14 to 15.17 set out ‘eligibility requirements for maternity, adoption, and shared parental leave and pay for NHS employees under the NHS occupational scheme’, (p298). Within this part of the section, paragraphs 15.16 and 15.17 provide the following under the heading ‘Shared parental leave and pay’: ’15.16 Shared parental leave and pay can be taken at any time within one year from the birth or placement for adoption, providing two weeks’ compulsory maternity or adoption leave has been taken first. ’15.17 An employee working full time or part time will be entitled to paid and unpaid shared parental leave under the NHS occupational shared parental leave and pay scheme if: i) They have 12 months’ continuous service (see paragraphs 15.106 to 15.109) with one or more NHS employers at the beginning of the 11th week before the expected week of childbirth, or at the beginning of the week in which they are notified of being matched with a child for adoption, or by the 15th week before the baby’s due date if applying via a surrogacy arrangement. ii) They notify their employer of their wish to take a shared parental leave and provide a minimum of eight weeks’ notice, through the submission of a booking notification form or other local process, which will confirm: a) Their intention to take shared parental leave. b) The date(s) they wish to access shared parental leave (noting that two weeks compulsory maternity or adoption leave must be taken by the mother or primary adopter before they can access shared parental leave). c) That they intend to return to work with the same or another NHS employer for a minimum period of three months after their shared parental leave has ended. d) That the mother or primary adopter has returned to work following maternity or adoption leave or has provided the binding notice confirming that they intend to bring their maternity or adoption leave and pay entitlements to an early end. iii) They confirm that the other parent meets the statutory “employment and earnings test” by being an employed or self-employed earner in the UK for a total of 26 weeks (not necessarily continuously) in the 66 weeks preceding the week the child is due to be born or matched for adoption. The individual must have earned at least an average of £30 (gross) a week in 13 of those 26 weeks (not necessarily continuously). This amount can be amended from time to time by the Secretary of State.’.[21]Continuous service was of course an issue in in this case and under the agenda for change document paragraphs 15.106 to 15.109, the following provisions under the heading ‘Continuous service’ (as relevant): ’15.106 For the purposes of calculating whether the employee meets the qualification set out in paragraph 15.14, 15.15 or 15.17 to have had 12 months of continuous service with one or more NHS employer, NHS employers include health authorities, NHS board, NHS trusts, and the Northern Ireland Health Service and are set out in Annex 1. The following breaks in service will be disregarded (but do not count as service). For the avoidance of doubt, absence on maternity leave, adoption leave, or share parental leave (paid or unpaid) as provided for under this agreement counts as continuous service. i) A break in service of three months or less will be disregarded. ii) […] iii) […] iv) […] v) […] vi) […] vii) […] viii) […] ’15.107 Employers may at their discretion extend the period specified in paragraph 15.106. ’15.108 […] ’15.109 Employers have the discretion to count other previous NHS service or service with other employers.’[22]Sections 15.102 and 15.103 are part of a separate section headed; ‘Employees with less than 12 months’ continuous service’. Section 15.102 is relevant and provides: ’15.102 If an employee does not satisfy the conditions in paragraph 15.14 or 15.15 or 15.17 for occupational maternity / adoption / shared parental pay, they may be entitled to Statutory Maternity, Adoption or Shared Parental Pay. Statutory Maternity, Adoption or Shared Parental pay will be paid regardless of whether they satisfy the conditions in paragraph 15.14, 15.15 or 15.17.’ My finding based upon this provision was that AfC recognises that there is an occupational Shared Parental Leave/Pay scheme and also a statutory scheme and that both are available to employees subject to these national terms and conditions providing they meet the qualification criteria.[23]Section 15.60 and 15.61 of AfC under the heading ‘Paid shared parental leave: amount of pay’ provides the following: ’15.60 Eligible employees will be entitled to claim up to 37 weeks of statutory shared parental leave pay (ShPP), less any weeks of statutory maternity pay, maternity allowance or statutory adoption pay that has already been claimed by either partner. ShPP can be claimed following the birth or placement of the child, but not at the same time as the compulsory two weeks of leave following the birth or placement of the child. ShPP is paid at a rate set by the government each year. ’15.61 Where an employee intends to return to work after a period of shared parental leave, the maximum joint entitlement of an eligible couple to occupational shared parental pay will be set out below. The maximum entitlement will only apply where either parent has not already received statutory or occupational maternity pay, maternity allowance or statutory or occupational adoption pay in respect of the child. Where such pay (excluding pay during the compulsory two-week maternity/adoption leave period) has been received by either parent, the maximum joint entitlement set out below will reduce proportionate to the amount of maternity or adoption pay which has either been taken and paid to either parent or notified as intending to be taken by either parent. i) For the first six weeks of absence the employee will receive full pay. Full pay is inclusive of any ShPP. The total receivable cannot exceed full pay. ii) For the next 18 weeks of absence the employee will receive half of full pay plus any ShPP. The total receivable cannot exceed full pay. iii) For the next 13 weeks, the employee will receive any ShPP that they are entitled to under the statutory scheme. iv) For the final 13 weeks, the employee will receive no pay. ’15.62 An NHS employer (as defined at Annex 1) will not pay more than 26 weeks, 8 weeks’ full pay (including the two weeks’ compulsory leave) and adoption or shared parental pay in aggregate to an eligible couple. This is irrespective of whether one or both parents are NHS employee as shared parental leave and pay is a joint entitlement.’ I determined that this provision recognises the interaction of Shared Parental Pay with other maternity related benefits and the entitlement to pay recognises the intersection between these benefits. The lengthy explanation is designed to avoid double compensation given that the aim of the benefit is to provide as much equality of opportunity to those with parental responsibility during the traditional maternity leave period.[24]Moreover, if the claimant was correct in her assertion that she was eligible to receive ShPP as described in 15.61, as she intended taking the second 26 week period of absence, subsections iii) and iv) would apply to her, providing her with 13 weeks ShPP for this period.[25]I noted that Section 15 of AfC provided a short subsection called ‘Further Information’ and this informed parties to the agreement that: ’15.117 There are occasions when employees are entitled to other statutory benefits / allowances and information about these and all statutory maternity, adoption, shared parental leave and paternity rights can be found on the Gov.uk website. […]’ This confirmed that AfC recognised the availability of statutory rights but also was included on the basis that this agreement would not always be completely up to date and may not have referred to developments to the benefits system which is frequently the subject of government reforms and changes.[26]In relation to the Gov.uk website, Mr Loftus had taken the claimant to the section regarding ‘Shared Parental Leave and Pay.’ (later referred to as SPL and ShPP). He referred her to page 538 of the bundle and the subsection of this document entitled ‘If both parents want to share the SPL and ShPP’. It provides as follows: ‘Both parents must meet the same eligibility criteria to get SPL and ShPP. You must:• Have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the due date.• Stay with the same employer until you start your SPL.’ Given the claimant and her partner’s diligence regarding the arrangement of maternity and shared parental leave, it is likely that they will have seen this document although she was unable to confirm that this was the case during the hearing. However, her understanding was that her previous continuous service with her previous employer provided sufficient accumulated NHS continuous employment to qualify for these benefits.[27]Mr Loftus also referred the claimant to page 559 of the bundle which was an extract from the Gov.uk website and which related to the ‘HMRC internal manual’ and document ‘SPM250900 – Continuous employment: change of employer.’ This internal manual provided that for a number of statutes and statutory instruments relating to employment benefits, ‘a change of employer does not break continuity if (relevant section): - when an NHS Trust is established and the employee moves to that trust from the originating Health Authority. However, when an employee changes from one authority/trust to another during the 26 weeks employment qualifying rules, the employee will not satisfy the continuous employment rules unless it is for the same authority/trust, see SPM190700 (https://www.gov.uk/hmtc-internal-manuals /statutory- payments-manual/spm190700.[28]The claimant did not have an opportunity to view this document as her copy of the bundle was missing these later pages (along with the Gov.uk document at page 538 above). I was not persuaded that she was aware of this document and accepted that her belief was that her previous NHS service meant that continuity of employment began on 4 November 2019. She was not able to provide an analysis of the relevance and application of this internal HMRC document to this claim.[29]For the avoidance of doubt, it was not an issue in this case that there was a failure on the part of the claimant to properly notify her employer of her intention to take parental leave and to seek parental pay. The question under consideration is whether the claimant was actually entitled to receive pay during her period of shared parental leave that she elected to take. Law Unlawful deductions from wages (Part II of the ERA 1996) 30. 13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.(8) […]
Law
[32]Mr Loftus referred to the case of New Century Cleaning Co. Ltd v Mr E Church 1999 WL 250038 concerning the question of wages being ‘properly payable’. He also referred to R Hellewell & J Mcardle v AXA Services Ltd, AXA Sun Life Services UKEAT/0084/CEA in the context of Mr Justice Silber’s test as to what wages were properly payable. Detriments (section 47C of the ERA 1996)[33]Section 47C Leave for family and domestic reasons.(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.(2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to— (a)pregnancy, childbirth or maternity, (aa) […] etc’ (bb)shared parental leave, (bc) […] etc’ (3)A reason prescribed under this section in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement. (4) Regulations under this section may make different provision for different cases or circumstances. (5)[…] etc’[34]Mr Ross referred to the case of Jesudason v Alder Hey Children’s NHS Foundation Trust [2020] EWCA Civ 73 and detriment should be considered subjectively in relation the employee concerned and on the basis that a reasonable employee might consider the relevant treatment to constitute a detriment.[35]In his reply to Mr Loftus, Mr Ross also referred me to the case of Abertawe Bro Morganwg University Health Board v Ferguson [2013] ICR 1108 EAT. This case involved the EAT considering the question of the correct meaning of ‘subjected to’ in relation to a complaint involving detriments. In Abertawe , this involved protected disclosures under section 43B ERA. The EAT held that the term was used to cover both positive acts and also where there had been a failure to act.[36]In his closing arguments, Mr Loftus referred me to the case of Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust [2019] 9 WLUK 556, (paras 34 and 53). This relates to his submission that section 47C and the wider legislation relating to whistleblowing is intended to require the Tribunal to analyse the mental processes of the employer and understand how and why it failed to act. It should not be treated as a ‘but for test’, is his submission. Shared Parental Pay (General) Regulations 2014 (ShPPR)[37]Regulation 5 Entitlement of father or partner to statutory shared parental pay 5.(1) P is entitled to statutory shared parental pay (birth) if P [Partner] satisfies the conditions specified in paragraph (2) and M [Mother] satisfies the conditions specified in paragraph (3). (2) The conditions specified in paragraph (1) are that— (a)P satisfies the conditions as to continuity of employment and normal weekly earnings specified in regulation 30; (b)[…] etc’[38]Regulation 30 Conditions as to continuity of employment and normal weekly earnings in relation to a claimant for statutory shared parental pay (birth) 30.(1) The conditions as to continuity of employment and normal weekly earnings referred to in regulation 4(2)(a) and 5(2)(a) are— (a)the person has been in employed earner's employment with an employer for a continuous period of at least 26 weeks ending with the relevant week; (b)[…] (c)the person continues in employed earner's employment with the employer by reference to which the condition in sub-paragraph (a) is satisfied for a continuous period beginning with the relevant week and ending with the week before the first week falling within the relevant period relating to that person under section 171ZY(2) of the 1992 Act. (2) Where C's birth occurs earlier than the 14th week before C's expected week of birth paragraph (1) shall have effect as if, for the conditions set out there, there were substituted conditions that— (a)the person would have been in employed earner's employment for a continuous period of at least 26 weeks ending with the relevant week had C been born after the relevant week; (b)the person's normal weekly earnings for the period of eight weeks ending with the week immediately preceding C's actual week of birth are not less than the lower earnings limit in force under section 5(1)(a) of the 1992 Act immediately before the commencement of C's actual week of birth; and (c)the person continues in employed earner's employment with the employer by reference to whom the condition in sub-paragraph (a) is satisfied for a continuous period beginning with the date of C's birth and ending with the week before the first week falling within the relevant period relating to that person under section 171ZY(2) of the 1992 Act. (1A) Paragraph (1B) applies where a person has been in employed earner’s employment with the same employer in each of 26 consecutive weeks (but no more than 26 weeks), ending with the relevant week. (1B) For the purpose of determining whether a person meets the condition in paragraph (1)(a), the first of those 26 weeks is a period commencing on the first day of the person’s employment with the employer (“the start date”) and ending at midnight on— (a)the first Saturday after the start date, or (b)where the start date is a Saturday, that day. (3) The references in this regulation to the relevant week are to the week immediately preceding the 14th week before C's expected week of birth. (4) […] Claimant’s submissions[39]Mr Ross provided a skeleton argument which included his submissions in support of the claimant.[40]In terms of the question of whether the claimant had a contractual right to shared parental pay, he argued that she did have such a right. This was because she met the relevant test under the AfC for the NHS/occupational scheme based upon her years of continuous service in accordance with paragraph 15.17 and read in conjunction with 15.106. He submitted that AfC regulated the claimant’s contract given that clause 2 of Part 2 of the Contract of Employment confirmed this to be the case.[41]He submitted that there was a clear difference between the NHS/occupational scheme and the statutory scheme, and that this was evident from the way in which the two schemes were described in paragraph 15.102 of the AfC document. Additionally, the AfC anticipates the risk that an employee may use the schemes in such a way that they receive more than their full pay as described in section 15.62.[42]He also argued that the claimant has suffered a detriment under section 47C ERA given that the term ‘detriment’ should be construed broadly and that the denial of the claimant to her contractual right of shared parental pay amounted to a detriment.[43]Mr Ross confirmed that the claimant accepts there could have been no entitlement to shared parental pay under the statutory scheme. Respondent’s submissions[44]Mr Loftus firstly argued that the shared parental pay was not wages that are properly payable within the meaning of whether there is a legal entitlement to them, as opposed to a contractual entitlement. He referred to the cases of New Century Cleaning and Hellewell (citation above).[45]He applied these principles on the following basis: a) The claimant was not in work as normal as she was absent on Shared Parental Leave and thereby not entitled to her normal remuneration. b) Any entitlement to Shared Parental Pay had been exhausted by her partner during the first 24 weeks of the maternity leave period, (applying regulations 30(1)(a), 30(1A) and 30(3) of the ShPPR. This was because: i) the claimant had not been employed by the respondent for 26 weeks as at the 14th week before her child’s birth, (regulation 30(1)(1) and 30(3). ii) The claimant was not employed by the same employer in each of the 26 consecutive weeks, (regulation 30(1A). different NHS Trusts are not the same employer. iii) The claimant’s start date of employment can only be 4 September 2023, when she started working for the respondent, (regulation 30(1B).[46]He disputed that there was a contractual entitlement with there being a distinction between each NHS employer and continuous NHS service. He referred to Gov.UK and HMRC guidance in this respect, (above). He noted that AfC requires employees to adhere to employment and tax law, (p222).[47]Mr Loftus argued that paragraph 15.17 was clear about the need for 12 months continuous employment and 15.61 required 26 weeks employment for the statutory scheme.[48]He also argued that there was no detriment contrary to section 47C. He acknowledged however, that loss of pay could be detrimental for an employee. His point was that because the claimant was not entitled to receive shared parental pay, it could not qualify as a detriment.[49]If the claimant was entitled to shared parental pay, Mr Loftus argues that the while the wording of section 47C(1) “done for a prescribed reason…relates to shared parental leave” and section 47B(1) “done on the ground that” are different, they are sufficiently similar for cases interpreting section 47B to be relevant when considering the application of section 47C. He observes that there are few cases that consider section 47C and so the net has to be widened to look at other provisions under Part IVA of the ERA dealing with detriments.[50]This led to him referring me to Chatterjee (see above) and the EAT’s decision that it is important for the Tribunal to analyse the mental process of the employer and consider why they acted in the way that they did or why it failed to act. As the respondent decided not to pay the claimant shared parental pay because of a reasonable understanding and belief that she was not eligible to receive such a payment, there was no intent to penalise her for wanting to take shared parental leave. Therefore, Mr Loftus argued that the claimant cannot be considered to have suffered a detriment.
Discussion
[51]This case had particular characteristics because it involved an employer that was not only subject to the legislation relating to shared parental leave, but which also offered qualifying employees a contractual scheme which was provided within the AfC document.[52]Mr Ross confirmed that the claimant was not arguing that she was entitled to the statutory scheme.[53]The claim involved an employer which being part of the NHS, allowed employees to aggregate their continuous NHS service. If eligible, this provided these employees with continuous NHS service across several NHS employers. While a break in NHS service could also break the continuous NHS service, there was no dispute that the claimant’s brief break in service before she commenced employment with the respondent was not long enough to have this effect.[54]In this case, the claimant had continuous NHS service from 4 November 2019. However, she only began her service with the respondent on 4 September 2023, (see Part One of the claimant’s Terms and Conditions of Employment at page 45 of the bundle). Part Two at section 5 covers “Reckonable Service” and that this is “…in respect of NHS agreements on redundancy, maternity, sick pay and annual leave.” There is no specific exclusion of shared parental leave, and I considered that the term ‘maternity’ also covered any positive parenting agreements that could be found within the NHS. In the case of the claimant, this applies to Shared Parental Leave and Shared Parental Pay, (page 46).[55]Part Two of this document confirms that in addition to the respondent’s internal HR policies, the claimant remains “…subject to the terms and conditions of service as detailed within the Agenda for Change Handbook”, (page 46). Paragraph 16 of Part Two confirms that the respondent has a range of family friendly policies, but in this case, the focus remained upon those available through AfC and I was not asked to consider these locally agreed policies.[56]This case involves a request made by the claimant for shared parental leave and shared parental pay based upon the balance of her leave entitlement when her partner returned to work following the expiry of 26 weeks after the birth of their child. The request was made on 20 October 2023, but on the basis that the initial 26-week period following birth would expire on 19 May 2024. The claimant therefore proposed taking a period of 26 weeks shared parental leave from 20 May to 18 November 2024.[57]She believed that the balance of the shared parental pay that she was eligible to receive was 13 weeks, (page 57). ShPP could amount to as much as 37 weeks, but less any already taken by the partner during the initial period, (page 58). Maternity leave was due to begin on 20 November 2023, (page[60]and the initial 26 weeks were being taken by the claimant’s partner.58. Paragraph 15.17 of AfC provides that an employee is eligible for the shared occupational NHS parental leave and pay scheme if they have more than 12 months’ continuity of service within the NHS. This can include one or more NHS employers and that a break in service of less than 3 months will be disregarded. There was no dispute that the claimant’s break in service during the summer of 2024 was much less than 3 months and for the purpose of this case can be disregarded, (being only 5 weeks duration).59. The claimant’s actual contract of employment is very clear in describing years of reckonable service with other NHS employers as well as the respondent, where there has been continuous employment. I agreed with Mr Ross’s submission that these references describe a situation where the claimant’s accrued continuing service stretches far back beyond the actual start date with the respondent which was 10 November 2019. From the plain reading of these provisions, it would seem absurd for the provision of continuous service to exist, but for it not to apply to the calculation of eligibility of shared parental pay, unless there was an express qualification or exclusion within the available documents. No reference was made to an express qualification or exclusion, and I did not see any such provision within my consideration of this case. 60. Indeed, the definition of reckonable service within the NHS and its application is described at paragraph 5.1 of the contract of employment in that reference is made to ‘NHS agreements on redundancy, maternity, sick pay and annual leave’, (p47). While its application does not specifically refer to agreements involving shared parental pay, the only collective contract that applies in this situation is the AfC and applying a purposive interpretation, the reference to ‘maternity’ demonstrates that in the absence of a specific exclusion, shared parental pay must in my view also be included. Had there been a specific exclusion that would have been a different matter, but there is none. I considered whether the absence of an exclusion might be connected with shared parental pay being a more recent innovation in UK law, postdating the creation of AfC. However, from my reading of the contractual documentation and AfC, I have not seen anything within the documents that explicitly says reckonable service cannot be applied to ShPP.[61]Consequently, it is my conclusion that the claimant had a contractual entitlement to qualify for the NHS shared parental pay scheme under AfC by reason of her reckonable service.[62]Mr Loftus argued that the ‘wages’ being claimed under section 13 ERA by the claimant were not ‘properly payable’ and referred to the cases of New Century Cleaning and Hellewell, (see above).[63]New Century Cleaning considered the application of section 13 in the context of a window cleaning business that reduced the ‘workbill prices’ offered to teams of window cleaners which they believed meant that there would be a deduction in the wages that could be paid because of these lower payments. It was a peculiar arrangement, but both the ET and EAT on appeal considered that it amounted to an unlawful deduction of wages properly payable to employees being a unilateral deduction made by the employer without the employees’ consent.[64]Mr Loftus referred to the decision of Morritt LJ in this case he confirmed that the adverb properly before payable in section 13 defines a legal requirement to pay wages, but one which ‘…is not necessarily limited to a contractual entitlement.’[65]He also referred to Hellewell and the decision of Silber J regarding an employer’s decision concerning an employee’s bonus in relation to section 13 ERA. He accepted that consideration of section 13 ERA involved ‘…some legal but not necessarily contractual entitlement from which the deduction could be made’, (paragraph 2). In paragraphs 20 to 23 he followed New Century Cleaning and confirmed that there must be a legal obligation to make a payment before section 13 ERA applied and this is supported by the used of the word ‘deduction’ in section 13(1) and (3).[66]Mr Loftus argued that the claimant could not be legally entitled to ShPP because she was not in work as normal being on SPL and thereby not legally entitled to normal remuneration. Moreover, applying the SPP Regulations, he argued that the claimant’s partner had exhausted the statutory entitlement to ShPP.[67]However, applying the claimant’s contract of employment and the AfC document which applied to her, it was provided that contractual ShPP (as opposed to statutory payments), could be paid if the necessary qualification applied so that the claimant was eligible. Maternity and parental pay recognises the public ‘good’ in allowing an absence work at specific times around the birth of a child and provides a means for some payments to be made by the employer in order that minimum remuneration is provided. In the case of contractual ShPP, the qualifying period of employment confers eligibility on the employee. It cannot be correct that this form of remuneration provided by the contract of employment and related documentation requires the employee to be in work when such payments are made. Section 27 ERA provides that wages can include payments referrable to employment, whether payable under his contract. It also includes statutory payments relating to maternity and paternity pay and for this reason the contractual ShPP must relate to wages properly payable if the eligibility criteria was met.[68]Consequently, my conclusion is that the claimant is entitled to the ShPP and the failure by the respondent to pay the ShPP to the claimant in the amounts provided by the contractual scheme under AfC, namely 13 weeks, results in an unlawful deduction from wages. The claimant relied upon the contractual scheme and not the statutory scheme under the ShPP Regulations and it is not necessary to consider this further.[69]The next question is the application of section 47C and whether the failure to pay ShPP amounted to a detriment thereby entitling the claimant to an award under Part IVA in addition to repayment of the wages that had not been paid by the claimant.[70]While it was not disputed by Mr Loftus that a failure to pay wages could amount to a detriment, he denies that this amounted to a protection under section 47C.[71]Section 47C ERA is entitled ‘Leave for family and domestic reasons’ and subsection 47C(1) provides that ‘An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.’ Subsection 47C(2) lists a number of prescribed reasons protected by section 47C and 47C(2)(bb) includes shared parental leave.[72]In this case the claimant requested shared parental leave and she argues that the detriment she was subjected to, was the refusal to pay her ShPP. She was not refused her SPL and was allowed to take the full 26 weeks that had been requested. The refusal by the employer was notified to the claimant as being because she was not eligible to ShPP by reason of insufficient qualifying service. This appeared to be because of a failure to take account of reckonable NHS service which began on 10 November 2019 and which continued into her employment with the respondent.[73]I was not provided with case law that related to circumstances that were on all fours with this case. Instead, Mr Ross and Mr Loftus referred to more general caselaw dealing with detriments under Part IVA ERA.[74]In the case of Chatterjee (see above), Auerbach HHJ at paragraphs 34 considered that if a prima facie case has been established that the detriment took place because of a prescribed reason, an employer should advance a reason. If the Tribunal is not persuaded by this application, the Tribunal may draw inferences from all of the facts found and not just the reason advanced. In paragraph 53, he expected a Tribunal to consider the mental processes of the individual concerned, especially when there may have been a number of influences for the detriment alleged.[75]Mr Ross referred to the case of Abertawe (see above), where the EAT was of the view that the alleged act (a deliberated failure to act in this case), must be considered in the context of the relationship between the claimant and the employer. This includes a consideration of contractual powers, duties and discretions, as well as the application of any statutory regulation. In terms of the meaning of ‘subjected to’ Langstaff J held that it had the application of causation.[76]I considered all of the evidence before me which was the limited witness evidence and the contents of the hearing bundle, including an exchange of emails in May 2024 between the respondent’s Payroll Officer, Gabriella Hall and the claimant regarding SPL and ShPP, (pp78-86). What was clear to me from the various emails that were exchanged and the apparent surprise of Ms Hall and the claimant regarding Payroll’s decision, was that Payroll had become confused concerning the application of statutory SPL and ShPP and the occupational benefits under AfC. This was understandable given the complexities and overlap of the relevant provisions, but unfortunate, nonetheless.[77]What was clear from the available emails was that the decision to refuse ShPP was not because the claimant had requested SPL but because the respondent’s Payroll had misinterpreted the contractual provisions that applied and failed to take account of reckonable service. It was not directly because a request for SPL had been made. For this reason, I was not persuaded that the refusal to pay was done because the claimant applied for SPL and it cannot amount to a detriment under section 47C.
Conclusion
[78]Accordingly, my judgment in this case is as follows: a) The complaint of unauthorised deductions from wages is well founded. The respondent made an unauthorised deduction from the claimant’s wages in the period from May to November 2024 in relation to their failure to pay the claimant’s entitlement to shared parental leave pay under the occupational scheme provided under Section 15 of Agenda for Change. b) The claimant was not subject to a detriment contrary to section 47C of the employment rights act 1996 arising from the respondent’s failure to pay the claimant the shared parental leave pay. c) The question of remedy in relation to the unauthorized deductions will be determined at a remedy hearing to be listed on a date to be advised.