Employment tribunal and court judgments | March 2021
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To establish a claim for equal pay, it is necessary for the Claimant to compare their terms to those of a valid comparator, which can include a comparator based at another establishment if common terms apply.
The Supreme Court has recently confirmed in the case of Asda Stores Ltd v Brierley that Asda store workers are, in principle, able to compare their terms of employment with Asda distribution depot workers, notwithstanding that each group work in mutually exclusive establishments and the terms of employment at each establishment are set by a different method (one being agreed through collective bargaining with the GMB and the other not).
The Supreme Court confirmed that the correct test is to ask whether 'if the comparator was employed to do their present job in the claimants' establishment, would the existing terms and conditions apply?'. The Supreme Court noted that this 'threshold test' does not require a line by line comparison of terms, rather a broad comparison as to whether the terms at each establishment are substantially the same and is likely to be met in all but the most 'exceptional' of cases.
Whilst this decision does not equate to a finding that the work undertaken by the Claimants and the comparators is of 'equal value' (which remains to be determined), it does surmount the first hurdle in such claims and could have significant implications for other employers with similarly structured workforces.
In the case of McTear Contracts Ltd v Bennet & Ors, the EAT has opened the door for further complexity in TUPE cases involving the transfer of services to two or more incoming suppliers, in holding that the employment contract of a transferring employee could itself be split between two or more incoming suppliers, meaning that the employee could have multiple employers following the transfer.
In this case, North Lanarkshire Council had engaged one contractor to provide services in respect of its social housing stock. The contractor used two dedicated teams to service the contract, both of which (whilst working independently of one another) worked across the whole geographical area covered by the contract. On a re-tendering, the Council divided the contract along geographical lines and appointed two separate contractors.
The Tribunal held that there had been a service provision change and, following the previous general test of assignment, allocated the Claimants to one or other of the new contractors on the basis of the location in which each employee had spent the majority of their time.
The EAT however, following the finding in Govaerts, noted that there is no reason in principle why an employee may not, following such a transfer, hold two or more contracts of employment with different employers at the same time, "provided that the work attributable to each contract is clearly separate from the work on the other(s) and is identifiable as such".
Where TUPE is considered to apply to a service transferring from one to multiple contractors, it will therefore be important to consider the nature of each individual's role and whether their contract should be divided between multiple suppliers; undertaking a team based assessment – without reference to individual factors – could be susceptible to challenge.
In welcome news for the care sector, the Supreme Court has held in the case of Royal Mencap Society v Tomlinson-Blake that workers on sleep-in shifts are only entitled to receive the National Minimum wage in respect of those hours during which they are required to be awake for the purposes of working. Further information can be found in our newsflash here.
The decision of the CJEU in King v Sash Windows, which permitted leave to be carried over indefinitely where a worker has been deterred from taking it due to it being unpaid, caused much consternation for employers within the gig economy. However, the recent decision of the Employment Appeal Tribunal in the case of Smith v Pimlico Plumbers, has restored some balance, confirming that the principle in King does not apply where annual leave has in fact been taken, but is unpaid.
The Claimant, a plumbing and heating engineer, was employed by Pimlico Plumbers as an independent contractor and, as such, was not entitled to paid annual leave. During his engagement however, the Claimant was permitted to and did take periods of annual leave, albeit on an unpaid basis. Following the termination of his engagement, the Claimant claimed he was a worker and brought a claim for, among other things, holiday pay.
The Claimant was deemed to be a worker, however his holiday pay claim was dismissed as being out of time. Notwithstanding this, the Tribunal – and most recently the EAT – confirmed that the principle established in King related only to leave which was not taken as a result of the employer's failure to remunerate such leave; it did not apply to circumstances where leave was in fact taken by a worker, albeit where such leave was unpaid. Accordingly, provided workers have taken time off work as 'holiday' even where unpaid, it will be difficult for them to establish a claim for back payments in respect of holiday pay.
In the case of Page v Lord Chancellor and another, the Court of Appeal held that it was not religious discrimination to remove a magistrate who declined to order a same sex adoption because of his Christian beliefs and publicly aired his opinions in respect of the same.
The Claimant, a practising Christian, was a magistrate who heard both criminal and family law cases. On being appointed, the Claimant had signed a declaration confirming that, among other things, he would 'act in a way which was free from any political, racial, sexual or other bias'. In 2014 however, the Claimant refused to certify a same-sex couple’s adoption on the basis of his Christian beliefs and engaged in multiple press commentaries in which he discussed his views as to the appropriateness of the adoption, stating that he considered it in the best interests of the child "if it was a man and a woman who were the adoptive parents".
The Court of Appeal dismissed the Claimant's claims for victimisation and breach of his Article 10 (freedom of expression) rights, concluding that his dismissal had been lawful.
The case reinforces the position that whilst employees are entitled to hold strong beliefs, if their job requires them to act in a non-biased manner, they must put those beliefs to one side, so far as is necessary, to properly exercise their functions.
