Employees can compare themselves to others at a different establishment for the purposes of equal pay
In this long-awaited Judgment of the Supreme Court, it was held that supermarket employees can compare themselves with employees at distribution depots for the purpose of equal pay claims.
Lady Arden summarised existing case law in order to clarify how tribunals should approach the ‘common terms requirement’ where a claimant seeks to compare themselves to employees at a different establishment employed on different terms for the purposes of an equal pay claim.
35,000 claimants worked in retail and sought to compare themselves to employees at distribution depots. Lady Arden clarified that the statutory test is whether there are common terms between the establishment where the claimant’s worked and colleagues (comparators) working in another appropriate part of the establishment. The ‘weeding out’ can be achieved by asking whether the comparators would be employed on the same or substantially the same terms if they were employed at the claimants’ establishment. Lady Arden confirmed that cases, where this test cannot be met, are likely to be exceptional and that a line-by-line comparison of terms is not required.
Employee unfairly dismissed for friction relating to health & safety work
In Sinclair (S) v Trackwork Limited (TW), the Employment Appeal Tribunal (EAT’) has held that an employee dismissed because of ‘upset and friction’ caused to colleagues by the way in which he implemented a new safety procedure was automatically unfairly dismissed due to his dismissal being as a result of him carrying out health and safety activities.
S was employed by TW as a Track Maintenance Supervisor. He was tasked by TW to implement a new safety procedure. TW did not inform other employees that S had been asked to do this and they complained about what he was trying to do, primarily referring to his ‘overcautious and somewhat zealous’ approach. He was dismissed for the upset and friction which his activities caused. S brought a claim for automatically unfair dismissal on the basis that he’d been dismissed for carrying out health and safety duties. The tribunal rejected the claim finding that S had not been dismissed for carrying out health and safety duties but for causing the workforce to become demoralised. S appealed to the EAT.
The EAT allowed the appeal holding that section 100 of the Employment Rights Act 1996 offers broad protection to an employee carrying out health and safety activities at the employer’s request. It held that it would wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal that was unrelated to the activity itself. Only if the employee’s conduct was wholly unreasonable, malicious or irrelevant to the task at hand, could protection potentially be lost. S’s conduct, in this case, did not fall into that category.
Vento bands for injury to feelings awards updated
Employment Tribunal Presidential guidance has been issued updating the bands of awards for injury to feelings, known as the Vento bands.
In respect of claims presented on or after 6 April 2021, the Vento bands are as follows:
- a lower band of £900 to £9,100 (less serious cases);
- a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and,
- an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.
Man on shared parental leave cannot compare himself to a woman on adoption leave
The Employment Appeal Tribunal (‘EAT’) held that a man on shared parental leave cannot base a sex discrimination claim on being paid less than a woman on adoption leave.
Mr Price took Shared Parental Leave (‘SPL’) as soon as his wife’s compulsory maternity leave had ended. Under the Council’s policy, he was entitled to statutory maternity pay. The Council paid full pay to employees on adoption leave. Mr Price claimed direct sex discrimination and appealed against the Employment Tribunal’s decision that the comparator he had used (a woman on adoption leave) was wrong. The EAT dismissed the appeal stating that adoption leave is materially different to shared parental leave as its purposes go beyond providing childcare. The requirement under the Equality Act 2010 is that there must be no material difference in circumstances between the claimant and his comparator, so the claim failed.
Appeal fails following Uber decision
In our spring employment law and HR newsletter we reported on the Supreme Court’s decision in Uber v Aslam in which it held that Uber drivers are workers and not self-employed contractors.
In Addison Lee v Lange, the Court of Appeal (‘CA’) has refused permission for Addison Lee to appeal the earlier decision of the Employment Appeal Tribunal (‘EAT’) that Addison Lee’s drivers are also workers. The CA stated that every time a driver logged onto Addison Lee’s app, there was clearly a contract in place and therefore the decision of the Employment Tribunal (upheld by the EAT) that the drivers are workers was correct and any appeal would fail.
No re-engagement where impractical to do so
In unfair dismissal claims, an employee can request re-engagement or reinstatement in addition to requesting an award of compensation. In the case of Kelly v PGA European Tour, the Court of Appeal (‘CA’) has confirmed that where an employer has a genuine and rational lack of belief in a dismissed employee’s capability to perform the required role, it can render it not practicable for the employee to return.
Mr Kelly was employed by PGA European Tour (‘PGA’) as a Group Marketing Director. In 2015, PGA had appointed a new Chief Executive and, within two months, he had dismissed Mr Kelly over concerns in relation to his performance and his inability to buy into the Chief Executive’s ideas. Mr Kelly succeeded in his claim for unfair dismissal and the Employment Tribunal (‘ET’) ordered that he be re-engaged. The ET rejected PGA’s argument that re-engagement was not practicable because it lacked trust and confidence in Mr Kelly.
PGA appealed to the Employment Appeal Tribunal (‘EAT’) and the EAT upheld the appeal holding that the ET had evaluated whether Mr Kelly should be re-engaged rather than considering the position from PGA’s perspective. Mr Kelly appealed to the CA. The CA upheld the appeal stating that the tribunal must consider on the evidence whether the employer genuinely and rationally believes that trust and confidence have been broken so that re-employment is not practicable.
It is no longer a criminal offence for an employee to leave home in order to go to the office if their job can be done from home. However, the latest guidance states that office workers should continue to work from home if they can, until at least step four of the roadmap (pencilled in for 21 June 2021). This is unless home working is not appropriate because of mental or physical health difficulties, or a particularly challenging home working environment. This means that, in general, office workers should continue to work from home and it would be unlawful to discipline or dismiss an employee for continuing to work from home in accordance with the guidance.
However, it is advisable for employers to start thinking about the steps that they will take in relation to employees currently working from home once the Government guidance permits a return to the office. Many employees have been working from home continuously for more than a year. Some employers and employees will have had a positive experience of this and others will not. Other employers and employees (as numerous surveys suggest) will see the benefits of both ways of working and wish to have a more flexible approach to the location in which they carry out their work going forwards. Some employees may be feeling anxious about a return to the office, particularly if they have not left or rarely left their homes. Employers should take time to understand the concerns and wishes of their employees and put a plan into place at an early stage to reduce employee relations issues and also take into consideration the following employment law implications:
- Changes to terms and conditions of employment – despite the requirement for employees to work from home during the pandemic, it is highly probable that the office remains their contractual place of work on a permanent basis. If an employer wishes to change the place of work of its employees such that they work from home, it will need to either obtain agreement from its employees or consult with employees in relation to this change to their terms and conditions of employment. If an employer is considering changing the terms and conditions of employment or 20 or more employees, the consultation will need to last for a minimum of 30 days (45 days for 100 or more employees), the employer will need to consult with elected representatives and an HR1 Form must be submitted to the Government.
- Flexible working requests – an employee with more than 26 weeks’ service is entitled to apply for an amendment to their hours and/or their place of work. If an employer requires all employees to return to the office once the Government guidance permits this, it is possible that an employer will receive many flexible working requests from employees who wish to work from home either wholly or in part. An employer is only able to refuse a request on certain grounds. As long as employees have been working from home successfully (and if they haven’t, this should have been raised with them previously), it could potentially be difficult for an employer to successfully show that it has sufficient reason to refuse the flexible working request.
- Equality Act 2010 – employers should consider whether requiring all employees to either come back to the office or work from home permanently could lead to potential discrimination claims. For example, a requirement to work from home on a permanent basis could be discriminatory on the grounds of sex given the childcare-related concerns that could arise from this. If an employee is suffering from either a pre-existing or pandemic-related mental health condition that is causing them to feel anxious, will requiring them to suddenly return to the office be discriminatory on the grounds of a disability? If so, should an employer be considering making reasonable adjustments such as a phased return to the office (following discussion with the employee about any adjustments that may assist)?
Many of the employment law implications referred to above can be addressed and the risk either avoided or minimised if employers start to put plans into place now and also engage with employees to understand their concerns and wishes.
There are also health and safety considerations in relation to employees working from home and Covid-19 which need to be continuously reviewed by employers, the detail of which are outside the scope of this article.