Price v Powys County Council UKEAT/0133/20/LA (V)
Mukoro v Independent Workers' Union Of Great Britain UKEAT/0128/19/BA
Bayliff v Fileturn Ltd ET/2304837/20
Rodgers v Leeds Laser Cutting Ltd ET1803829/2020
Asda Stores Ltd v Brierley and others [2021] UKSC 10
Kubilius v Kent Foods Ltd ET/3201960/2020
In this case, the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s (“ET”) decision that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.
The Claimant (Mr Price) was employed by the Respondent (Powys County Council). He enquired about his entitlements under the Respondent’s shared parental leave (“SPL”) policy so he could stay at home to care for his baby whilst his wife returned to work after her two weeks of compulsory maternity leave. He was informed that he would only be entitled to statutory shared parental pay (paid at a rate equivalent to statutory maternity pay) and he argued that the policy was directly discriminatory on the grounds of sex, because under the Respondent’s “Working Parents” policy, employees on statutory maternity leave and on statutory adoption leave were entitled to pay at enhanced rates during their leave periods.
For the purpose of his claim, the Claimant identified two possible comparators: (1) a female employee receiving maternity pay; and (2) a female employee receiving adoption pay. The ET rejected both comparators on the basis that under the Equality Act 2010, the circumstances of the claimant and the chosen comparator must not be materially different, and there was a material difference between the Claimant’s circumstances and those of both of his comparators. The ET held that the correct comparator for the Claimant was a female employee on SPL and since this comparator would have received the same pay as the Claimant, the direct discrimination claim failed. The Claimant appealed this decision in relation to the second comparator, arguing that the circumstances of a female employee on adoption leave and a male employee on SPL were not materially different, in that the underlying purpose of both types of leave is the facilitation of childcare.
The EAT dismissed the appeal. The EAT held that the ET had not erred in concluding that there were material differences between the Claimant and the second comparator. The ET’s only error was relying on an assertion that adoption leave is compulsory as a differentiating factor (since statutory adoption leave is not, in fact, compulsory), but this did not invalidate the ET’s conclusion overall. As a result, the ET had been correct to find that a more appropriate comparator would be a woman on SPL, and, since that comparator would have received the same pay as the Claimant, there was no prima facie case of unlawful discrimination.
This case provides helpful clarification that the payment of enhanced pay for employees who take adoption leave, but only statutory pay for those who take SPL does not amount to unlawful discrimination. A growing number of employers do now provide enhanced pay for shared parental leave alongside enhanced maternity and adoption pay, recognising that this may help increase the take-up of such leave by male employees and enable working parents to split the childcare burden between them more equitably.
In this case, the Employment Appeal Tribunal ("EAT") held that an adjournment should not have been refused where the ex-employee Claimant needed emergency dental treatment on the day of the hearing of the Respondent employer’s application to strike out the claim.
The Claimant’s daughter emailed and phoned the tribunal two hours prior to the hearing, which was scheduled to start at 10am, to inform the tribunal that the Claimant was experiencing an excruciatingly painful abscess requiring emergency dental attention and requesting an adjournment of the hearing. The Respondent opposed the adjournment on the basis that there was a lack of medical evidence and that the Claimant’s previous behaviour demonstrated that the application should be treated suspiciously. The Employment Judge adjourned the hearing until 12pm but, when the Claimant did not attend, refused to further adjourn and struck out the claim on the grounds that it was no longer possible to have a fair hearing.
The EAT held that the refusal to adjourn amounted to a denial of justice because the Claimant had no opportunity to defend the application for strike-out. Thus the order striking out the claim was set aside, given that the adjournment should have been granted.
This case usefully demonstrates that where a party is unable to attend a hearing through no fault of their own, for example due to medical reasons, an adjournment should be granted. However, employers should be aware that the question of whether or not a medical reason is deemed to be an “exceptional circumstance” by the tribunal will be determined on the facts of the case.
In this case, the Employment Tribunal ("ET") considered the application of the Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 (SI 2020/814) (the "Regulations"), which came into force on 31 July 2020. The Regulations provide that where an employee on furlough is entitled to statutory notice, their notice pay is calculated based on their pre-furlough pay. The ET held that the Regulations did not have retrospective effect for any part of an employee’s notice period prior to the Regulations’ entry into force.
The Claimant was furloughed by the Respondent from 1 April 2020 and was paid 80% of his salary, capped at £2,500 per month. The Claimant received 12 weeks’ notice of redundancy on 18 May 2020 and was paid 80% of his notice pay up to 31 July 2020. The Claimant’s notice pay was increased to 100% from 1 August 2020 until the expiry of his notice period, in view of the entry into force of the Regulations. The Claimant brought a claim for breach of contract and unlawful deduction from wages, claiming that he should have received 100% of his notice pay for the full notice period.
The ET held that the Regulations came into force on 31 July 2020 and were not to be applied retrospectively, thereby dismissing the claims brought by the Claimant.
This case will be of interest to employers in relation to decisions they have taken in light of new government guidance and regulations over the course of the pandemic, which have often been taken on very short notice and with limited information on how they apply. Whilst this case confirms that the Regulations do not have retrospective effect, it also clarifies for employers that they will apply in relation to any period of notice remaining after the date the Regulations entered into force, even if notice was given before that date.
In this COVID-19 related case, the Employment Tribunal (“ET”) held that it was not automatically unfair to dismiss an employee who said he would not return to work until after lockdown because he was concerned about infecting his two children with COVID-19.
On 29 March 2020, the Claimant sent a message to his manager stating that he had “no alternative but to stay off work until the lockdown [had] eased” due to the risk of infection to his children, one of whom was at high risk due to an existing health problem and the other being a 7 month old baby. The Respondent dismissed the Claimant a month later. As the Claimant did not have sufficient qualifying service to bring a claim for ‘ordinary’ unfair dismissal he brought a claim for automatic unfair dismissal, relying on section 100(1) of the Employment Rights Act 1996 (“ERA”), which states that an employee is regarded as unfairly dismissed if (inter alia) the reason or principal for the dismissal is that (i) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work; or (ii) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
The ET rejected the Claimant’s argument that COVID-19 had created a reasonable belief in serious and imminent workplace danger, in all of the circumstances. The ET considered the employer’s safety precautions in the workplace (which were reasonably comprehensive, and included an external risk assessment and implementation of its recommendations) as well as the Claimant’s other behaviour, including in respect of a breach of self-isolation guidance the day after he sent the message to his manager and a failure to take any steps to prevent danger or raise the issue with his manager. It was not appropriate for the Claimant to absent himself from work entirely, particularly where he had not made any complaint in this regard. Nor had the Claimant taken appropriate steps to communicate concerns of serious and imminent danger in the workplace; his concerns were about the virus in general rather than particular dangers at work.
Whilst this case turned on the specific facts, the ET rejected the suggestion that section 100 of the ERA cannot in principle apply to circumstances arising from the COVID-19 pandemic. It highlights to employers the importance of implementing and maintaining appropriate COVID-19 secure measures in the workplace. Employers who fail to do so will be at an increased risk of successful claims of this nature if the employee can establish that he or she has a reasonable belief that the workplace is dangerous.
In this case the Supreme Court ("SC") held that workers in the Appellant's stores could seek to compare themselves to workers in the Appellant's depots for the purpose of equal pay proceedings, where the two groups work in different establishments. This decision means that the equal pay proceedings brought by 35,000 workers against the Appellant can proceed to trial.
The Respondents are a group of predominantly female retail employees of the Appellant, who brought equal pay claims, comparing their pay to that of higher-paid, predominantly male employees in the Appellant's distribution depots. The Appellant has separate terms and conditions of employment, as well as management processes, for its retail employees on the one hand and distribution employees on the other. However, those responsible for the terms of employment of the two groups of employees are answerable to the same executive board, which is in turn answerable to the same parent company. The retail employees' terms are not set by collective bargaining, unlike those of the distribution employees.
In a preliminary hearing the Appellant argued that the claims should be struck out as the two groups of employees were not employed on "common terms" within the meaning of section 79(4)(c) Equality Act 2010. The Respondents disputed this, also arguing that such a comparison was permitted wherever there is a "single source" for the terms of employment.
The Employment Tribunal ("ET") held, subsequently approved by the EAT and Court of Appeal, that the employment terms for the two groups had a single source (the Appellant's executive board), their terms generally correlated, and the two groups would be under generally similar terms if the distribution staff did their jobs at store locations, for the purpose of the "North hypothetical" (according to which, if the comparator's core terms would be unaltered by a hypothetical transfer to the claimant's establishment, rather than acquiring the claimant's terms, then the common terms requirement is satisfied). Common terms could therefore be observed at both types of establishment for the purpose of section 1(6) Equal Pay Act 1970.
The central question on appeal was whether the "common terms" requirement was met. The SC held that, according to case law, claimants are able to compare themselves to employees at different establishments if the comparators' terms would have been substantially the same if they were employed at the same establishment. Furthermore, it did not matter that both groups of employees' terms were not set by collective bargaining agreements.
The SC specified that the "common terms" requirement was a threshold test and comparisons would only be excluded where the differences in terms of employment were "wholly or mainly derived from the physical separation of the comparator's establishment".
While a line-by-line comparison of terms (which the ET had carried out) was not necessary, the ET was right to proceed with a broad comparison of terms. The Respondents therefore succeeded on the North hypothetical comparison, despite some errors in the ET's approach. It did not need to be possible for the hypothetically relocated comparator to carry out their work at the claimant's establishment; the situation could be imagined where the comparator works at a hypothetical depot next to the claimant's retail store.
This decision represents the latest stage in a long-running claim which, if successful, could result in very significant liability for the Appellant. However, it is not the end of the matter: the Claimants are still required to demonstrate that they performed work of equal value to that of the distribution employees, and the company may yet be able to successfully defend the claims, for example by demonstrating that any difference in pay is due to a genuine material factor which is not sex.
In this case the Employment Tribunal ("ET") held that the Respondent had fairly dismissed the Claimant, after he refused to wear a face mask when visiting a client's site. The Claimant was a delivery driver and the client in question required all visitors to wear face masks on site at all times.
The Respondent's employee handbook required that employees take all reasonable steps to safeguard the health and safety of themselves and others, as well as courteous treatment of clients. Its driver handbook further required that customers' instructions regarding PPE must be followed. The client issued all visitors with face masks on arrival and the Claimant was asked by two of the client's employees to wear a facemask in the interest of others' safety. He refused, stating that it was not a legal requirement.
The Respondent held an investigation into the Claimant's behaviour on the basis that he had breached the Respondent’s requirements to maintain good relationships with clients and ensure a safe working environment. Following a disciplinary hearing, the Claimant was summarily dismissed.
The ET held that the Respondent had carried out a reasonable investigation into facts which were not in significant dispute, and possessed a genuine belief that the Claimant had been guilty of misconduct. Furthermore, the Respondent's decision to treat this misconduct as sufficient grounds for dismissal was within the range of reasonable responses, as it was entitled to consider the importance of maintaining client relations, the Claimant's lack of remorse, and the practical difficulty of his ban from the client's site, in making its decision. Therefore, the ET held that the Respondent's dismissal of the Claimant had been fair, regardless of the fact that another employer might have chosen to issue the Respondent with a warning rather than summary dismissal.
This case is likely to be one of the first of many claims to emerge from employers' handling of issues arising from the COVID-19 pandemic. It provides a helpful reminder that employers are not required to show that dismissal was the only reasonable outcome in the circumstances in order to successfully defend a claim that the dismissal was unfair; the question is whether the dismissal was within the range of reasonable responses open to it.
