Surrogate mothers

Surrogacy is not exactly a common issue for most UK Employers; but its profile has been rising of late due to court action both at home and now in Europe.

It may be a surprise for many to hear that under current UK Maternity laws, a woman who “acquires” a child through a surrogate arrangement is not entitled to any maternity rights; pay or leave – unless her Employer agrees to do so. The arrangement is also outside the law on Adoption Leave and Pay, which only provides for time off if the adoption is through a “recognised adoption agency”, not a surrogate arrangement.

The birth mother of a baby however is entitled to take up to 52 weeks leave and this still applies even if she gives up her baby on day one after the birth under a surrogacy agreement!

For some time now, the government has been considering plans to extend the scope of adoption leave and pay to include the “intended” parents of children born via a surrogacy arrangement. The High Court was involved in reviewing the UK position back in 2012 when two claims that challenged the status quo were taken up by Surrogacy UK and a woman directly affected by the lack of employment protection.

In the meantime, two separate cases have now reached the European Courts for opinions.

Before cases in the European Courts reach a full hearing, they are heard by an Advocate General. The full court is not obliged to follow the decisions or opinions of the Advocate General. This does appear to be an unnecessary stage in my opinion; but I guess that opinion could be overturned later!

The cases involve women who have received a baby through a surrogacy arrangement and are seeking rights to take time off – a form of maternity leave. In the cases C D v S T and Z v A Government Department, different Advocates General have reached two very different conclusions – one favouring entitlement to paid leave and the other not; very helpful! (I repeat, what is the real point of this stage in the process then??).

The first case, CD v ST is a UK case, referred from the Employment Tribunal in Newcastle. The Advocate General felt that an intended mother was entitled to some maternity leave when a number of points are satisfied, including that she takes the child into her care, that surrogacy is permitted in the Member State concerned, and if its national requirements are satisfied.

The second case was a referral from Ireland. Here a different Advocate General ruled that the current law was clearly aimed at protecting a pregnant woman and a woman who had given birth, ruling out any rights for the intended mother.

[The judge in favour of maternity rights happens to be female whilst the judge ruling against just happens to be a man – one for conspiracy theorists maybe?]

These two separate cases are now awaiting a ruling from the full court, which as I have said can choose to follow or ignore the advice from the Advocate General.

The Government has stated its intention to introduce some rights in this area, but I think they would be well advised to await the outcome of these two cases before finalising its proposals.

We await the final ruling with interest and we may also be interested in the gender of the deciding judges!

I will update this article as soon as there’s an outcome – watch this space….

Meanwhile let’s take a look at Maternity and Family Friendly Rights as a whole – this areas has developed into a complex series of regulations and legal precedent.

It is therefore vital to understand the current situation in view of the high levels of compensation available!

Our half a day workshop reviews the general legislation on maternity, company statutory maternity pay and brings you up to speed with the changing laws on maternity rights (maybe even bigger changes if the surrogacy case is in favour of giving surrogate mother’s rights too!)

For more information on this training course or any other areas of Employment Law you wish to receive advice about, feel free to get in touch:

Derek Eccleston MA FCIPD
01789 470700

What can we glean from the latest Employment Tribunal News?

Every year statistics are published on the number and nature of Employment Tribunal claims which have been raised. These latest Tribunal Statistics recently produced by the Ministry of Justice show a continuing upward trend. However the introduction of Tribunal claim fees in July this year is expected see a marked reduction in the overall numbers of claims made in the coming months – let’s wait and see!

Top Headlines

• Total complaints made were up by 3% and reached nearly 333,000 over the year to April 2013

• Unfair Dismissal claims rose in last 12 months up to 50,000

• Claims for not consulting a trade union rose by 39%

• Working Time Regulations accounted for 30%

• The highest amount of compensation awarded was
o £387,000 in a Disability Case
o £300,000 in a Sex Discrimination Case

The number of unfair dismissal claims rose in the 12 months ending April 2013. They went up to nearly 50,000, from just over 46,000 in 2012. Unfair dismissal claims accounted for 15% of total claims made.

This is a surprise! One reason for this being a surprise, is that 12 months ago, the length of service required to claim unfair dismissal was doubled from 12 months to two years. Many felt that this would see a reduction in the numbers of Unfair Dismissal claims; clearly this is not the case.

Total complaints made were up by 3% and reached nearly 333,000 over the year to April 2013 – but these complaints were made by lower number of claimants – 191,500.

This continues the trend over recent years that people put more than one complaint in their claim; typically adding some form of discrimination complaint on top of unfair dismissal or redundancy.

The number of employment tribunal claims for failure to inform and consult (with a trade union normally) during redundancies rose by 39% from 7,984 to 11,075 and has now risen by a staggering 146% since 2007/8.

This is probably a reflection of the tough economic times employers have been faced with in recent years. These claims are normally made by trade unions and Employers do need to be aware of their legal obligations in these situations.

Recent case law has also created uncertainty over when an Employer has to consult with the trade union, so best advice at the moment is to err on the side of caution and involve the trade union, or elected representatives, whenever changes in the numbers of the workforce are being considered.

Employment Tribunal claims under the Working Time Regulations accounted for 30% of the total number of claims and rose from 94,697 claims in 2011/12 to 99,627 in 2012/13. The total number of Working Time Regulations claims has risen by 79% since 2007/8, with many of these relating to Holiday pay disputes.

The statistics show that employment tribunal claims for disability discrimination, equal pay, race discrimination, age discrimination and detrimental treatment / unfair dismissal connected with pregnancy all fell. However, employment tribunal claims relating to the Part Time Workers Regulations and ET claims for discrimination on grounds of religion or belief and on grounds of sexual orientation rose – although the numbers involved in the latter were only around the 600 mark.

The highest amount of compensation awarded was some £387,000 in a Disability Case, followed by another award of well over £300,000 in a Sex Discrimination payout. Much of this will be for future losses of earnings and not damages to feelings – which are modest in comparison.

These awards are however a reminder that compensation for Discrimination complaints are uncapped, so Managers and Line Managers need to be well aware of these at an early stage to minimise the risk to the business both financially and through damage to reputation.

In order to minimise the risk of an employment tribunal claim being brought it is advisable to have clear policies and procedures in place, take steps to implement them, for example through management and supervisory staff training, and to take specific employment law advice before dismissing an employee, announcing redundancies or taking disciplinary action short of dismissal.

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700