Law and Labour » Equal pay

Asda equal pay claims can go ahead

Law and Labour — Sat, 02 Sep 2017 08:41:19 +0000

Asda had appealed against the decision of the Employment Tribunal that male staff working at distribution depots were appropriate comparators for the women who worked in its stores. Asda brought 10 grounds of appeal based on both European and English law. However, the Employment Appeal Tribunal (EAT) rejected Asda’s appeal in its entirety, holding that the judgment reached by the Employment Tribunal was sound.

One key issue under consideration by the EAT concerned the difference in the way the pay terms for the two sets of staff were set. The male depot staff had their pay terms determined following collective bargaining between Asda and the GMB trade union. However, the female staff were not heavily unionised and their pay depended instead on the geographical location of the store at which each of the women worked.

The EAT decided that the historical differences in how pay had been set was no barrier to the male staff being appropriate comparators for the female staff. Since both sets of staff were paid by Asda, it could be said that they had a single source of pay which made comparison between the jobs appropriate and the EAT agreed with this perspective:

“For all the intensity of Asda’s attack on the Judge’s reasoning and conclusions, far from considering them perverse I find them unassailable. This was an ordinary case of a large organisation delegating the setting of pay to separate internal organs…Asda or Wal-Mart could interfere at the stroke of a pen or, more likely, the click of a mouse.” Employment Appeal Tribunal

A further key issue concerned the fact that the two sets of staff did not work at the same location. The female staff were based at Asda’s stores while the male staff worked at distribution depots.

In such situations, equal pay legislation requires that the claimant and the person they are comparing themselves to for equal pay purposes have common terms and conditions of employment. In this case, although there were similarities between the terms and conditions of both sets of staff, there ware also some differences. The question to be decided was whether the differences were so significant as to prevent the jobs being compared.

The EAT disagreed with Asda’s argument that the terms could not be common because they differed in their “genesis and history” or were tied to the particular location at which the men and women worked. The EAT upheld the Tribunal’s finding that despite their differences the terms between the two sets of staff were “broadly similar” and permitted comparison for equal pay purposes.

CASE Asda Stores Ltd v Brierley and others, Employment Appeal Tribunal, 31 August 2017

Photograph: “Asda” by Flikr user Lordspudz used under Creative Commons Attribution 2.0 licence

ILO report confirms trend towards less secure jobs

Law and Labour — Tue, 19 May 2015 12:24:28 +0000

A new report from the International Labor Organization (ILO) has confirmed that the modern employment relationship is becoming less secure. There has been a movement away from the standard employment model, in which an employee works full time under a permanent contract of employment, to informal employment arrangements characterised by short-term contracts and irregular hours of work. The trend has implications for gender inequality, as a greater proportion of women make up those in temporary and part-time employment.

Given the report’s findings, the ILO recommends that public policy should focus on ensuring that workers in all types of employment have adequate protection, rather than only those employed under the standard employment model. The ILO also warns against the danger of reducing employment regulation.

In recent years, some countries, notably in Europe, have made changes that have reduced the level of protection for workers in both standard and non-standard employment, with a view to stimulating employment growth. The Changing Nature of Jobs, International Labor Organization, May 2015

In the UK, the movement away from the standard employment model is best depicted by the rise of the zero hours contract. This form of employment has been the subject of much recent scrutiny over whether it offers workers sufficient protection. We previously reported on the Government’s plans to ban exclusivity clauses in zero hours contracts (Ban on exclusivity clauses to be widened).

The ILO report, The Changing Nature of Jobs, can be accessed by clicking on the report cover at right:

Conservative Government’s employment law proposals

Law and Labour — Fri, 15 May 2015 16:01:10 +0000

In the run-up to the general election, the Conservative Party proposed a number of changes to employment law if they returned to power. In the table below we round up some of their key proposals.

Human Rights Act Replace the Human Rights Act 1998 with a British Bill of Rights thereby preventing the European Court of Human Rights from being the ultimate arbiter of human rights issues. Strike laws Require a minimum turnout of 40% of all those entitled to take part in strike ballots and a majority vote by those employed in the health, transport, fire and education sectors. Allow employers to use agency workers to cover for striking employees. Strengthen the rules on picketing. Zero hours contracts Ban the use of exclusivity clauses in zero hours contracts. We previously looked at this proposal in an earlier article Ban on exclusivity clauses to be widened. National Minimum Wage Increase the National Minimum Wage (NMW) to £6.70. Introduce more severe financial penalties for employers who fail to pay the NMW.

Tax Increase the tax-free personal allowance to £12,500. Equal pay Introduce private sector equal pay reporting by requiring companies with more than 250 employees to publish the difference between the average pay of their male and female employees. Public sector termination payments Introduce new legislation to cap enhanced redundancy payments in the public sector at £95,000. Require repayment of public sector exit payments in certain circumstances. Long-term absence Reduce benefits of those suffering from long-term, treatable conditions if they refuse to follow treatment recommended for them. Volunteering Allow employees working in large companies (employers with more than 250 employees) or the public sector to receive three days’ paid volunteering leave. Pensions Introduce a single-tier pension system.

Out of time equal pay claimants can use courts

Law and Labour — Sun, 28 Oct 2012 16:27:18 +0000

In a recent Supreme Court case it was decided that a claimant who is out of time for bringing an equal pay claim in the Tribunal can bring the claim in the civil courts.

The claimants were four women who were former employees of Birmingham City Council. They brought equal pay claims under the Equal Pay Act 1970 arguing that they had been employed on work rated as equivalent to that of certain men in the same employment, but they did not receive equal remuneration.

Such a claim would normally have been presented in the Employment Tribunal. However, the claimants were outside of the six-month time limit for bringing a claim in the Tribunal.

Birmingham argued that the claims “could more conveniently be disposed of” in the Tribunal, in which case they would be struck out for being out of time.

In a majority decision, the Supreme Court held that the claims could not be more conveniently disposed of by the Tribunal. The Court stated:

“It cannot be more convenient for a claim to be disposed of in a forum in which, at the outset, and without reference to its merits, it would be required to be dismissed”. Supreme Court

It was suggested that Parliament had permitted the 6-month time limit under the Equal Pay Act 1970 because they recognised that the claimant could have recourse to court were she to be outside the Tribunal time limit.

CASE Birmingham City Council v Abdulla, Supreme Court, 2012