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Equal Pay For Equal Work

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As long as 45 years ago measures were first introduced in the UK to address the difference in pay between men and women carrying out the same or similar work. It is considered, however that only limited progress has been made in bridging the gender pay gap.

Up until the end of September 2014 the framework for policing gender pay issues was contained in the Equality Act 2010 which draws together the protection from the previous Equal Pay Act 1970 and the Sex Discrimination Act 1975.
A scheme of voluntary reporting was put in place for employers to publicise their pay but this appears to have been insufficient in order to promote pay transparency and attempting to achieve equal pay for equal work regardless of gender.

Since October 2014 there has been a new sanction for employers in place that Employment Tribunals can order if employers are found to have breached equal pay legislation. This sanction requires employers to carry out an equal pay audit and to make public the results.

Average pay for men is greater than that for women. The Office for National Statistics revealed that in 2016 the gap was 9.4% for full time employees (the lowest since records began in 1997, when the gender pay gap was 27.5%). The gap for all employees was 18.1%. This is because a higher proportion of women work part-time (41%, compared to only 11% of men), and part-time workers (both men and women) earn less per hour on average than their full-time counterparts.

The General Pay Gap Regulations came into force on 6 April 2017 and apply to large private and voluntary sector employers. This is defined as employers with 250 or more employees on 5th April each year.

Employers must publish their gender pay gap information on their own website and retain it on line for at least 3 years. The information also has to be uploaded to a government website.

If you consider you are being paid less than a colleague of the opposite sex in your work place when you are undertaking equal work you may have a claim under the Equality Act 2010. The work, when being compared, must fall into at least one of the following three categories – “like work”, “work rated as equivalent” and “work of equal value”.

We can advise you as to whether you are likely to have a successful equal pay case. If you are successful the Tribunal or court can make a declaration of your rights and/or require arrears to be paid. A declaration forces your employer to pay the same as your opposite sex counter part. Arrears can be paid for a period up to six years before your claim.

Refund of Employment Tribunal Fees

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The Lord Chancellor has provided an update on employment tribunal fees to the House of Commons Justice Committee. A large number of potentially eligible people have apparently failed to apply since the refund scheme was rolled out in November last year, following the abolition of Tribunal fees. The Ministry of Justice is therefore writing to affected people in order to raise awareness. The first batch of 2,000 letters was issued on 9 April 2018.

If you paid a Tribunal fee in the past then it is likely you can apply for a refund. See our previous blog dated 24th October 2017. Should you require assistance with this process then please contact us.

Recover Tribunal Fees Previously Paid

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Following the Supreme Court judgment on Employment Tribunal fees an announcement has now been made on the first stage of the scheme  to be reimbursed fees paid whilst the fee regime was operational.

Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks.

If you paid a fee as well as being refunded this you will be entitled to interest of 0.5%, calculated from the date of the original payment up until the refund date.

The opening phase of the refund scheme will last for around 4 weeks. If you wish to register an interest in being refunded Tribunal fees paid we can assist and pre-register your refund request.  Contact us at [email protected].

Employment Tribunal Fees Abolished

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A fee regime was in place from 29th July 2013 whereby fees had to be paid upon issuing a claim before an Employment Tribunal and upon the case going to a full trial. The fee for issuing a claim was either £160 or £250, depending on the type of claim. The hearing fee was £230 or £950. On 26th July 2017 a judicial review case was heard at the Supreme Court brought on an application by Unison against the Lord Chancellor. The Supreme Court declared that fees in the Employment Tribunal and Employment Appeal Tribunal were unlawful, under domestic and EU law. It quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court determined that the fee regime effectively prevented access to justice and was a breach of common law and constitutional rights. It was also held that it was indirectly discriminatory to have fees contrary to the Equality Act 2010.

As a result of this case all claims brought before an Employment Tribunal from now on will not incur a fee. It also means that that those Claimants that incurred fees at anytime during the four year period whilst the fee regime was in place are entitled to a refund. The detailed arrangements for recovering previously paid fees was due to be announced in September but the scheme has yet to be revealed.

There is now the potential for reinstatement of claims that were rejected by the Employment Tribunal as a result of a failure to pay the correct fee. There is also legal argument for allowing claims out of time on the basis that the Claimant could not afford to bring the claim when fees, that have now been held to be unlawful, were in place.

If you have any queries about fees or past or current claims our employment law expert, Jenny Carpenter can assist.

What Should Be Included In Holiday Pay?

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There has been a significant amount of cases addressing the question of what it is appropriate for an employer to pay for periods of statutory annual leave. The position is clear and straightforward where the employee receives a regular wage, or even if the hours or wage are irregular it is clear from the Working Time Regulations 1998 that average remuneration should be calculated over the previous 12 weeks prior to leave being taken. The position is more complex though when the employee/worker receives additional contractual payments as part of their remuneration to include bonuses, overtime and commission.

The Court of Appeal decision in the British Gas Trading Ltd –v- Lock and another case has now been reported. The Court of Appeal has upheld the Employment Appeal Tribunal decision that where an employee receives an element of results-based commission as part of their pay this should be included when they are on statutory annual leave. However, the case does not specify how this should be calculated.
We can advise on holiday pay cases both for employees and employers.

Jennifer Carpenter
Employment Law Specialist
Partner

Possible Implications Of Brexit For UK Employment Law

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Much of the employment law with have in this country comes from the EU, including:- discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.

Whilst it would now be possible for the UK government to repeal this it is unlikely to do so and in fact EU law will probably continue to significantly influence employment law in this country.

There are various reasons for this:

  • Some employment law was implemented in the UK before the EU made it law. For example, UK equal pay, race and disability discrimination laws, right of return after maternity leave – all UK law.  It is highly unlikely therefore that the government will suddenly decide to reverse this.
  • Some employment law provides for rights that go further than what the EU requires.  For example, UK family leave rights.
  • Many of the employment rights that exist are generally considered to be a good thing and therefore even if it is solely based on EU law it is unlikely that the government would repeal these.
  • The government is likely to determine that there is a requirement to continue to observe EU law even though we are not in the EU.  This will be due to a need to stay in some sort of relationship with the EU. Any trade agreement negotiated with the EU is likely to be dependent on it.

It is much more likely that the government will gradually modify EU derived employment law to make it more applicable to UK employers and employees than repeal it altogether.  As leaving the EU is a two year process nothing will happen quickly.

Once we have left the EU the European Courts of Justice (ECJ) will no longer have jurisdiction over UK courts and decisions made by the ECJ will not be binding on courts in this country.  The decisions however already made by UK courts, taking into account EU law and ECJ decisions will remain binding unless it can be shown that the facts in any particular case are materially different.  It is likely, however that UK courts will continue to at least consider ECJ decisions where relevant to cases being determined here.

So, in summary nothing drastic is going to happen to employment law as a result of Brexit and certainly not in the short term.

 

Jenny Carpenter
Solicitor
Employment law specialist

National Living Wage

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Be aware that a new National Living Wage will come into force on 1st April this year.  Make sure that your staff that are eligible are being paid appropriately.

For workers aged 25 years and over (and not in the first year of an apprenticeship) the National Living Wage this year will be £7.20 per hour, higher than the current minimum wage.

There will be penalties for employers that do not comply.

For advice on this and other employment law related matters please contact us

Standard Form Letters Not Sufficient To Properly Advise Client In Relation To A Personal Injury Claim

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In Procter v Raleys Solicitors (A Firm) [2015] EWCA Civ 400, the Court of Appeal considered an appeal against a finding that a solicitors’ firm had failed to properly advise its client about his claim.

In dismissing an appeal against a decision that a firm of solicitors (R), had failed to properly advise its client (P), the Court of Appeal has confirmed the need for standard form letters of advice to be sufficiently clear to ensure that clients properly understand the nature of the advice.

With Adams Harrison you can be sure that you will receive a personal service, taking you through each step of the claim for your injury.

We always make the time to discuss your position with you in detail and to answer any queries you may have. We do not rely on standard form letters to advise you – The Court of Appeal was critical of Raleys Solicitors for doing just that.

Forward Joke And Other e-mails At Your Peril

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Internet Misuse led to an employee being sacked for gross misconduct after he had already been given notice terminating his employment on the grounds of redundancy.

In the case of Williams v Leeds United Football Club [2015] EWHC 376 Mr Williams was given 12 months notice in accordance with his contract for his employment to end by reason of redundancy.

The Football club then discovered that he had used the club’s e-mail system to forward an e-mail entitled “dirty Leeds” together with pornographic images to a male friend at another football club.

Therefore, the club then dismissed him without notice for gross misconduct.

Mr Williams was not entitled, stated the High Court to his year’s salary, even for the part of the year he had worked, or his redundancy pay.