EMPLOYMENT LAW FEBRUARY 2020
Employment law SOS
This month, our legal expert explores parental leave in a
same-sex relationship, being ostracised by a manager and
rewarding only those at the top with a pay rise
BY HELEN HUGHES, LEGAL DIRECTOR & EMPLOYMENT LAW SPECIALIST, SHAKESPEARE MARTINEAU www.shma.co.uk
This is the time of year
where we think about
bonuses and pay rises. It’s
been a tough year, and profits
will be down. As a result, the
chairman wants to forego
any pay rises – except for
board members and directors.
Putting aside the unfairness
of rewarding those in senior
management and ignoring the
rest, is it legal to reward some
people and not others?
The first step is to review
your employees’ contracts
and see whether they have a
contractual right to a bonus or
salary increase. Often, certain
conditions need to be met for
this to be the case, such as the
business performing to a certain
standard financially. If the
conditions in the contract have
been met, then you could be
faced with a breach of contract
issue if you don’t deliver on that.
In most businesses, bonuses
and pay rises are given entirely at
the employer’s discretion. If this
is the case for you, then there are
unlikely to be legal repercussions
if pay rises aren’t awarded as
long as you have acted honestly
and in good faith. Provided you
have done so, then this makes
it difficult for employees to
challenge the decision.
However, you should still
bear in mind the impact that
the decision will have on staff
retention. The issue may be
one of employee relations
(rather than strictly legal) with
disaffected employees choosing
a number of routes to express
their displeasure. Losing their
goodwill over this issue may
mean employees ‘work to rule’,
refuse to take on overtime or
help out with other duties at
busy times, and in the most
serious of cases, resigning.
For situations such as
this, communication is vital.
Employees must be given a
thorough explanation of the
decision as early on as possible.
If people understand the basis of
the decision then it may go some
way to employees accepting it
without challenge, though it is
hard to see how you can justify
rewarding those at the top only.
It may be worth reviewing your
reward package overall to see if
any non-financial benefits can be
offered to mitigate the effects of
this decision. Offering an interim
salary review after six months to
see if the financial position has
improved may help to reassure
employees that you are not just
second parent (unless they
have not given permission).
Therefore, your engineer
and his partner will need to
have the legal parenthood of
the baby transferred to them
by parental order. For these
purposes, we are assuming
that one of them is genetically
related to the baby. Once this
transfer of legal parenthood
has been obtained, one partner
would be considered as the
primary adopter and entitled to
adoption leave, subject to the
usual eligibility criteria. This
gives the primary adopter the
same amount of leave and pay
that someone on maternity leave
would have, while the other
parent (irrespective of being the
same sex) would be entitled to
paternity leave and pay instead,
as long as the eligibility criteria
is again met. You should also
note that both are entitled to
unpaid time off to accompany
the surrogate mother to up to
two ante-natal appointments.
There is an alternative option
in the form of shared parental
leave. Again, this is something
that is unaffected by the fact they
are in a same-sex relationship
so should the primary adopter
decide not to take full adoption
leave, then the remaining leave
can be shared between both
parents, allowing both parents to
return to work sooner. You must
remember that the route they
choose is entirely up to them.
It’s vital not to overcomplicate
a situation such as
this, where gender and sexuality
are, to an extent, largely
irrelevant. If you approach it in a
different way to how you would
treat a heterosexual couple
adopting a baby, then you could
be accused of discrimination on
grounds of sexual orientation.
using ‘tough trading conditions’
as an excuse.
One of our engineers is in
a same-sex relationship,
and the couple have decided
to use a surrogate to father a
child. The baby is due in two
months’ time, and the question
of paternity leave has come up.
We are unsure about the rules
around parental leave when
two fathers are involved.
The couple will no doubt be
fully aware that the surrogate
is regarded as the child’s legal
parent at birth, and that if the
surrogate is married, or in a civil
partnership, their spouse or
civil partner will be the child’s
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