Employment Law update September 2017
Posted on 12th December 2017 at 14:14
Equal Pay for Equal work
Asda equal pay claims
In the case of Asda Stores Ltd v Mrs S Bierley & Others the Employment Appeal Tribunal ("EAT") confirmed that a group of lower paid, mostly female, employees who work in Asda's retail stores can compare themselves to higher paid men who work in the distribution centres for the purposes of equal pay. The claim was brought by over 7,000 former and current employees of Asda, claiming pay dating back to 2002. The store workers argued that they carry out work of equal value to the men in the distribution centres, but are paid less.
In the first instance the Employment Tribunal held that the store workers could compare themselves with higher paid men in the distribution centres. Asda appealed against this decision to the EAT. One of Asda's key arguments was that the two groups of employees could not be compared as there was no single source of pay and conditions. The basis of this argument was that the retail stores and the distribution centres were managed by different bodies and as such there were different methods of setting pay in each workplace. The EAT agreed with the Employment Tribunal's decision that there was a single source of pay and conditions in this case. Whilst the retail and distribution centres were managed by different bodies, the evidence showed that the Executive Boards reviewed the setting of pay at both centres and that therefore this was simply a case of a large organization delegating decisions in relation to pay to other internal bodies. The EAT explained that a single source simply meant a common source and that just because there is a presence of an overall parent company, which delegates certain decisions to a subsidiary, this does not prevent there being a single source of pay and conditions in respect of the claimants and their comparators.
The principle of equal pay is that both women and men should receive equal pay for equal work and, as such, is considered a gender issue.
WHAT IS EQUAL WORK?
There are three categories of equal work:
1. Like work such as work that is the same or broadly similar
2. Work rated as equivalent under a Job Evaluation Scheme
3. Work of equal value in terms of effort, skill or decision making
Employers should be aware that employees are entitled to know how their remuneration is calculated.
Claims can be brought by either gender, although the majority of cases are brought by women. Employers should be aware that an employee may also have a sex discrimination claim.
The following are examples covered by equal pay legislation:
Paid holiday entitlement
Hours of work
Performance related pay and benefits
Non monetary terms
How do claims work?
Employers should be aware that an employee can request from their employer certain information that will assist in established whether there is a pay difference and, if so, the reasons for the difference.
An employee may also seek to raise a formal grievance using the employer’s grievance procedure.
Did you know;
Lastly, it is open for an employee to make a complaint to the employment tribunal, whilst still working in the job or up to six months after leaving to which their claim relates. Arrears can go back up to six years before the date the claim was brought, meaning that any judgement in the employees favour is likely to be substantial.
How to address the pay gap
There are a number of ways of addressing the pay gap and/or to work out whether there is a risk of an equal pay claim being brought by an employee.
Contact us for more information about this and how you can create a defence to unequal pay claims
ACAS Conciliation (pre Tribunal application)
Early conciliation certificate accepted despite naming two respondents
The EAT in the case of De Mota v ADR Network and anor confirmed that an early conciliation certificate was still valid, and so the claimant could still rely on this certificate in issuing his claim to the Employment Tribunal, despite that certificate naming two respondents.
Importance of robust vetting procedures.
Candidate vetting is a crucial step in the recruitment process and can minimise the likelihood of employing the wrong person .We have access to a factsheet called ‘Pre-employment checks’, which examines the risks employers need to guard against during the recruitment process and provides recommendations on how to conduct pre-employment checks in a legal and ethical manner manner.
Our experience suggests that employers do not always use medical declaration forms or take up references. These two processes can assist materially in screening in OR out candidates with problems that might affect their success once employed.
MORE ON THE SO CALLED (GIG ECONOMY)
Tribunal decides minicab company drivers were workers, not self-employed
Gig economy employers can no longer afford to ignore the growing legal arguments on employment status, lawyers have warned, after Addison Lee became the latest organisation to lose a tribunal on the issue.
The Central London Employment Tribunal ruled very recently that three drivers for the minicab firm – Michaell Lange, Mark Morahan and Mieczyslaw Olszewski – should have been classified as workers, rather than self-employed, and were therefore entitled to rights such as the national minimum wage and holiday pay.
In reaching the decision, judge David Pearl concluded that, when a driver was logged onto Addison Lee’s booking system, they were agreeing to undertake any jobs personally. He also noted the degree of control Addison Lee had over the relationship, including that the use of their vehicle was “restricted and regulated” and that the drivers were not free to remove the company’s branding.
“In cases like this, and many others that have preceded it, strong evidence has shown that workers are not in control but are, in reality, subordinate to their employer,” said Helen Wolstenholme, employment barrister at 2 Temple Gardens. “Companies can no longer ignore this string of authorities. It’s looking like the curtains are closing on the gig economy.”
Kate Hurn, associate at Bird & Bird, added: “The rise of the gig economy engagement model has placed a microscope on the way in which people providing services are treated.”
There will be a further hearing of the tribunal to decide what level of holiday and pay the Addison Lee drivers are entitled to.
WE GIVE ADVICE ON USING SO CALLED SELF - EMPLOYEDS. FREELANCERS AND SUB CONTRACTORS WHICH CAN HELP YOU MANAGE THE RELATIONSHIP WITH SUCH PEOPLE.
Remember that at the moment there are three categories of people who provide work services they are Employees, Self employeds and workers and the IR35 regulations are clear on who is which as are the Courts!! Talk to us about the kind of employment contracts OR agreements that you need for each type andhow you can steer clear of HMRC problems.
Can an employee be too sick to take holiday?
If you fall ill on holiday and come back to work anything but refreshed, should you be entitled to reschedule your holiday – or even claim sick pay?
In Pereda v Madrid Movilidad, the European Court of Justice said a worker who is incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule that holiday to a later date. Perhaps more contentiously, the court also suggested that the same should apply to workers who become sick during their holiday (as opposed to before). The ECJ later confirmed this in Asociacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales & Ors.
Employees are ever-more aware of their individual rights in the workplace. With holiday rights held among the most treasured, these decisions mean employers can expect to receive claims from employees that they should be re-credited holidays and be paid sick pay instead. However, there must be a risk that not all these claims are valid, putting employers in a tricky position. How can you prove your suspicions that an employee wasn’t wiped out by a migraine or didn’t spend their whole holiday holed up in the hotel room? How sick do you have to be before a day in bed counts as sick leave rather than annual leave?
We find most employers are allowing employees to reschedule their holiday, but try to protect themselves from abuse or manipulation. This is where a degree of robustness is needed, and where clear policies and expected standards of behaviour can help – contact us so that we can work with you in assessing whether your existing approaches to this tricky subject are sufficiently appropriate and in depth.
It should be noted that the ECJ decisions apply to the four weeks’ holiday, not to the full 5.6 weeks’ statutory holiday or any contractual amount over and above this. Also, there is room for some argument about whether this is provided for in the UK’s own Working Time Regulations.
A consistent and firm approach can pay dividends, and needs to be well supported by the contract of employment and holiday, sickness, equal opportunities, disciplinary, social media and data protection policies.
We can provide guidance on managing sickness cases, medical matters associated with absence and coded tabulation of any days of absence
Gender pay Gap Reporting
Those Companies with more than 250 employees must produce a report on their own website by 4th April 2018.and upload that same report to a government website
Taxation of Termination payments
Currently there is a bill going through parliament which potentially changes the rules on taxation of these payments.
Employment Tribunal fees
Fees were abolished on 26th July 2017. Solicitors tell us that this has lead to an increase in the number of claims being made and opens the door to previous claimants and non claimants possibly having a case to claim anew or ask for their cases to be heard. The Government will have to repay fees incurred since they were first introduced.
There have been a number of cases at the ECJ and in the UK relating to wearing of headscarves and shoes which have gone in favour of both employers and employees. How long since you reviewed your dress codes?
Calculation of Holiday Pay.
This matter is still causing problems. Contact us to get up to date with the latest situation regarding what should be included in the calculation of holiday apyments.
Statutory bereavement Leave
A bill currently going through parliament could alter the way in which you need to look at Maternity leave pay and Shared Parental leave pay arrangements
Data Protection – urgent need for change.
The UK Data protection Bill, once it becomes Law, will repeal the Data Protection Act of 1998 and encompass the requirements of the European General Data Protection Regulations . It will radically change obligations on data protection and cannot be avoided by any organisation in the UK. Employers must have put new measures and Policies in place by May 2018. Large fines could be levied against offenders and the new timescale’s under the GDPR could cause problems.
We can help you with identifying what you need to do with your existing policies and procedures on data Protection and make the necessary changes that you will have to make to your Email, Computer, internet policies and the relationships that you have with any external providers of such services of payroll etc.
Alternatively email us on firstname.lastname@example.org and get early answers to your issues before they become problems!
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