Monday, 27 October 2014

Equal Pay case tests equal job evaluation in the private sector

Asda are being pursued by the employment lawyers Leigh Day who two years ago won a landmark £1bn supreme court ruling for lower-paid women employed by Birmingham city council.

If pay discrepancies in equal value jobs can be proved, other supermarkets and retailers, such as Tesco, Sainsbury's, Morrisons, Marks & Spencer and John Lewis, could face similar claims. The Asda cases will determine if the supermarket's store staff jobs, which are mainly held by female workers, are of equal value to higher-paid jobs in the company's male-dominated distribution centres. If they win, workers could be entitled to six years' back pay for the difference in earnings.

Until now equal job evaluation has mainly affected local councils, where jobs are assessed and given pay grades. Birmingham alone has so far paid around half of its £1.1bn bill for the back pay settlements to the women – including cleaners, cooks, care workers and school lunch supervisors – who were denied bonuses and attendance allowances given to male road cleaners and refuse collectors.

The Asda parity issue is expected to be heard within the next two months at Manchester employment tribunal. Newman said Leigh Day was representing 414 store staff, most though not all women.

Asda said in a statement: "We are aware of a small number of claims. We pay a fair market rate for the job people do regardless of gender and we don't recognise discrimination in our business."

The precedent for equal pay claims for comparable jobs was set in 1997 when 1,500 Cleveland dinner ladies won a £5m payout.

A national single status agreement was drawn up the same year giving local authorities 10 years to introduce fair and non-discriminatory grading structures. Tens of thousands of mainly female workers in such jobs, however, are still awaiting settlements for back pay. The general and public service unions GMB and Unison said they had 40,000 outstanding cases across the UK, including in Birmingham.

Statistics show 37,400 equal pay cases were brought in 2009-10, 34,600 in 2010-11 and 28,800 in 2011-12.

Friday, 17 October 2014

Claim rejected for non-compliance with early conciliation rules‏ but then allowed in under Rule 13(4)

In Thomas v Nationwide Building Society (Cardiff Employment Tribunal Case No. 1601342/2014) an employment judge has rejected a claim for failure to comply with the early conciliation procedure. One of the first reported cases!

T presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation (EC) procedure established by Ss.18A-18C of the Employment Tribunals Act 1996, by which any would-be claimant must first contact Acas with details of the claim, and receive a certificate confirming completion of the EC procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim.

The Claimant argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered under rule 13(4) of the Employment Tribunal Rules of Procedure 2013, which allows for a rejected claim to be accepted if the rejection was based on a defect that has since been rectified.

Employment Judge Clarke ruled that non-compliance with the EC procedure was a ‘defect’ capable of being rectified so as to allow for reconsideration under rule 13. In the judge’s view, even late compliance with the conciliation procedure would still be ‘pre-claim’, given that the original claim had been rejected. The effect of rule 13 is that the claim can proceed once the defect has been rectified, albeit that it will be treated as having been presented on the date of such rectification. He also rejected the suggestion that T would have to present a fresh ET1 once she had completed the EC procedure.

It must be noted that this was heard only in the ET and therefore we wait to see if it will go upstairs.

Cardiff Employment Tribunal

Charles Price Barrister

Thursday, 16 October 2014

Update your employment policies ACAS guidance on shared parental leave and ante-natal appointments

ACAS has published a detailed guidance note on the new shared parental leave rules.

Key Points are listed as follows:

'Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of statutory maternity pay or maternity allowance
If they choose to do so, an eligible mother can end her maternity leave early and, with her partner or the child's father, will be able to opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements and both qualify, they will need to decide how they divide their total Shared Parental Leave and Pay entitlement between them
Paid Paternity Leave of two weeks will continue to be available to fathers and a mother's or adopter's partners
Adopters will have the same rights as other parents to Shared Parental leave and pay
Intended parents in surrogacy who meet certain criteria will be eligible for statutory adoption leave and pay and Shared Parental Leave and Pay'

Please also remember when updating your Maternity/Paternity policies that From 1 October 2014 expectant fathers, or the partner of a pregnant woman, will be entitled to take unpaid time off work to attend antenatal appointments with their partner. The Department of Business, Innovation and Skills has produced a guide for employers (which works equally well for employees).

Employees accompanying the expectant mother to her ante-natal appointments are entitled to unpaid leave for 1 or 2 appointments. The time off is capped at six and a half hours for each appointment.
The Government is aiming to achieve greater involvement of both of the child’s parents from the earliest stages of pregnancy.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.
However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment, that the employee qualifies for the unpaid time off through his or her relationship with the mother or child, and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.

Charles Price is a Direct Access Barrister with 15 years experience 07846692325