Volunteers are often the bedrock of charitable organisations, but they are not protected from sexual harassment within those organisations.
This ruling, in the case of Peninsula Business Services Ltd v Donaldson, may also have implications in relation to pension contributions made via salary sacrifice during maternity leave, but the position is not clear.
Peninsula Business Services Ltd (Peninsula) offered its employees a scheme providing childcare vouchers through salary sacrifice. It was a condition of entry of the scheme that employees agreed that vouchers would be suspended during maternity leave (during which Peninsula paid statutory maternity pay only). Ms Donaldson, an employee of Peninsula, wished to join the scheme but refused to do so on the grounds that she believed this condition of entry was discriminatory.
Ms Donaldson brought a discrimination claim which was upheld in the Employment Tribunal’s original decision. The Tribunal noted that women on maternity leave are entitled to continue to receive their normal non-cash benefits during maternity leave, and it considered that the childcare vouchers were such a non-cash benefit. The Tribunal had referred to HMRC guidance stating that during any period of ordinary maternity leave, contractual non-cash benefits provided under a salary sacrifice scheme must continue to be provided.
EAT, however, could not find any statutory basis for the HMRC guidance and considered that it was incorrect. Allowing Peninsula’s appeal, it held that salary sacrifice childcare vouchers represented part of the employee’s salary, albeit that this was diverted before reaching the employee’s pay packet. The vouchers were therefore to be properly regarded as part of the employee’s remuneration, rather than a non-cash benefit, which can be discontinued during maternity leave. The position would be different if the vouchers were provided as a benefit in addition to salary.
Employers may seek to review their practices in light of this decision if they currently offer salary sacrifice childcare vouchers throughout maternity leave. However, EAT did express its conclusions in the case “somewhat tentatively” and it is not yet clear whether the case will be appealed to the Court of Appeal. Employers may, therefore, wish to allow the dust to settle on this decision before taking any action.
The Chancellor has also now announced that childcare voucher schemes will be closed to new entrants from April 2018, meaning that this question could eventually become academic (although existing members as at April 2018 will still be able to continue in their scheme for so long as the employer chooses to continue operating it).
It is not clear whether this case will impact on pensions contributions made via salary sacrifice because an employee’s pension rights during maternity leave are protected by different legislation. Employers should therefore proceed with caution if reviewing their practices in this area and should seek advice before taking any action.
If you would like more detailed advice in relation to this case, benefits during maternity leave more generally or require pensions support, please contact Doug Mullen.
Here at Anthony Collins Solicitors, we have been hard at work advising a charity client, BICMP, on its new music project, ‘Resonance’.
Currently, the only ground for divorce is irretrievable break down of a marriage. Following a consultation, the Government has announced its intention to reform the legal requirements for divorce.
The UK Information Commissioner’s Office (ICO) has recently made some noteworthy changes to its guidance around data subject access requests (DSARs).
In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
A local authority recently received a "roasting" by the Pensions Ombudsman for their delay in processing an employee’s ill-health retirement pension, following her diagnosis with advanced cancer.
The Times is looking for three or four charities to feature in their editions running in December 2019 and early January 2020.
Cliff Mills defines and talks about the importance of social value in his blog, and its potential within Greater Manchester.
Following a power outage at Anthony Collins Solicitors’ (ACS) Birmingham office, our employees and partners currently have limited functionality, including no access to emails.
Joint ventures present an opportunity for housing associations to build organisational capacity, the revenues from which could help deliver on wider social housing commitments.
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