Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Asda Stores Ltd v Brierley
Thousands of Asda shop floor workers have won the latest round in their legal challenge for equal pay.
The case rests on the argument that store workers, who are mostly women, are being paid less than distribution depot staff, who are paid more and are mostly men.
The Supreme Court found in favour of the group of 40,000 claimants on appeal, following previous successes in all other tribunal and court proceedings.
The ruling does not grant the workers equal pay, but it allows the claimants to proceed with legal action and to compare themselves and their work to that of warehouse workers. This will involve establishing that the work of both shopfloor and warehouse workers is of equal value in terms of skills and training, and that gender is the key reason for the difference in pay.
Lady Arden summarised existing case law and gave guidance on the statutory threshold test. This requires there to be common terms as between comparators at their establishment, and the comparators if they were working in an appropriate part of the claimants’ establishment.
This decision will be of significance for the retail industry as a whole, with other large retailers also facing equal pay challenges.
Working time & sleep-in pay entitlement
Royal Menap v Tomlinson-Blake
In another recent landmark decision, the Supreme Court found in favour of the employer on the issue of whether a ‘sleep-in’ shift was work time for the purposes of the National Minimum Wage Regulations 1999 and 2015.
The finding was unanimous that care workers were not entitled to minimum wage for the whole shift while on-call, regardless of whether they are called on to carry out work.
The case was brought by a Mencap care worker, Mrs Tomlinson-Blake. Her job was to provide care to two men who required 24-hour care.
She was paid a flat rate of £29.05 by Mencap per 9-hour sleep-in shift. During the sleep-in shift, she was provided her own room and was required to be available during the night to provide support to the residents. On the occasions where she was woken, she would not be paid for the first hour of work, but for any additional time spent carrying out her role she was paid her usual hourly rate.
Mrs Tomlinson-Blake succeeded initially at the employment tribunal claim, and Mencap’s appeal was then rejected in the Employment Appeal Tribunal in 2017.
The decision meant that Mencap had to pay staff minimum wage for each hour of their sleep-in shift, regardless of whether or not they were required to carry out any duties.
It is worth noting that Mrs Tomlinson-Blake was required to provide assistance during a sleep-in shift only 6 times in 16 months.
Mencap pursued an appeal and in 2018 the Court of Appeal overturned the tribunals’ decisions and confirmed that Mrs Tomlinson-Blake was only entitled to be paid the National Minimum Wage for any hours during her sleep shift when she was awake and required to carry out her duties. This did not extend to time sleeping or resting, even when being ‘available for work’.
The Supreme Court reviewed the issue of whether a whole night shift (while the worker is primarily sleeping but on stand-by) is classified as working time or rest time in accordance with the National Minimum Wage Regulations.
The Supreme Court upheld the Court of Appeal decision in favour of Mencap.
The ruling has been welcomed by care employers who potentially faced hundreds of millions of pounds in liabilities for back pay, as well as paying the national minimum wage rates for future sleep-in shifts.
Mallon v Aecom
The EAT has found against the decision of the tribunal at first instance in striking out a case for disability discrimination on the ground that it had no reasonable prospect of success. The case is to be remitted to a fresh ET for reconsideration.
The claimant, Mr Mallon, has dyspraxia. He brought a claim against Aecom for disability discrimination for failing to make reasonable adjustments in relation to an online application process.
Mr Mallon, a litigant in person, argued that the respondent applied a provision, criterion or practice (PCP) by requiring submission of an online application form, which put him at a substantial disadvantage in comparison with a person who is not disabled.
Mr Mallon requested to make the job application orally, and Aecom refused.
At first instance, the tribunal held the claimant would not be able to demonstrate substantial disadvantage arising from Aecom’s practice, and struck out the claim.
Mr Mallon appealed.
The EAT found against the ET’s decision to strike out the claim as it had failed to consider if this was a case concerning a failure to provide auxiliary aids, and as such, it could not properly be said that the claim had no reasonable prospect of success.
Health & safety
Section 44 ERA extension of H&S provisions to workers
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 has been laid, extending the provisions of s44(1)(d)+(e) to include workers.
Under the current provisions of s44 ERA, an employee can bring a tribunal claim if subjected to a detriment because they reasonably believed that being at work would place them (or someone else, such as a household member) in serious, imminent danger.
The statutory instrument extends these legal protections to include those classed as workers.
The change in regulation follows the decision in R (on the application of the IGWU) v Secretary of State for Work and Pensions, where it was held that confining such protection to employees was a breach of the EU Health & Safety Framework Directive.
Concerns relating to the coronavirus pandemic and workplace environments and practices is seeing growing use of section 44 by employees who are anxious about travelling to, or being in, work during the coronavirus pandemic.
The new statutory instrument will apply to detriments taking place on or after 31 May 2021.
Reminder of new statutory payment amounts 2021/2022
- Statutory maternity pay: £151.97
- Statutory paternity pay: £151.97
- Statutory shared parental pay £151.97
- Statutory adoption pay: £151.97
- Statutory parental bereavement pay: £151.97
- Statutory sick pay: £96.35
For claims presented on or after 6 April 2021, the Vento bands shall be 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.
If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Last updated: 30 March 2021