Employment Briefing

Published byMartin Stephen

25th October 2016

• Changes to National Minimum Wage
• Gender Pay Gap Reports Published
• AA Solicitors & Ali v Majid
• Sandle v Adecco UK

Welcome to this month's Employment Briefing, which looks at unfair dismissal, sexual harassment in the workplace, the gender pay gap and changes to the National Minimum Wage.

If you have any questions about any of the topics covered or would like to meet with our Employment team please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Changes to National Minimum Wage

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Gender Pay Gap Reports Published

Two reports into the gender pay gap have been published in the last month. The gender pay gap differs from the concept of equal pay in that it measures the difference in pay between men and women across the whole workforce (or a sector of it) and does not simply compare men and women who do the same job.

A report by Deloitte found that, while the gender pay gay is at the lowest level on record (9.4%), progress is so slow that it will not be fully eliminated until 2069 on current trends. The gap is presently declining by just 2.5p per annum. What’s more female graduates entering the workforce now are still being paid less than their male counterparts and the gap will widen throughout their working lives. The gap even exists in female dominated professions such as healthcare and teaching.

Another study by the London School of Economics focused on the gap between men and women among the very top earners. The gap here is even wider than among the rest of the population. Of all those earning over £456,000 per annum, just 9% are women. The report compared Britain to 5 other European nations, all of which reported a smaller gap than that in the UK.  

Gender Pay Gap Reports Published
Two reports into the gender pay gap have been published in the last month. The gender pay gap differs from the concept of equal pay in that it measures the difference in pay between men and women across the whole workforce (or a sector of it) and does not simply compare men and women who do the same job.

A report by Deloitte found that, while the gender pay gay is at the lowest level on record (9.4%), progress is so slow that it will not be fully eliminated until 2069 on current trends. The gap is presently declining by just 2.5p per annum. What’s more female graduates entering the workforce now are still being paid less than their male counterparts and the gap will widen throughout their working lives. The gap even exists in female dominated professions such as healthcare and teaching.

Another study by the London School of Economics focused on the gap between men and women among the very top earners. The gap here is even wider than among the rest of the population. Of all those earning over £456,000 per annum, just 9% are women. The report compared Britain to 5 other European nations, all of which reported a smaller gap than that in the UK.  

WJM’s employment team believes that this is an issue that employers – especially larger ones - must be fully cognisant of going forward. From April 2018 businesses which employ 250 or more people will be required to report annually on the gender pay gap which exists within their firms. It is likely that there will be a higher focus on this issue and that more high profile surveys (both sector specific and economy wide) will follow as the issue becomes more politically sentient. Employers will have to be aware of the potential reputational damage which may be incurred by reporting a wide gender pay gap.  

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AA Solicitors & Ali v Majid

The claimant, Majid, had brought a claim against the first respondent, AA Solicitors, where she had been an employee. The second respondent, Mr Ali, was the sole partner in the firm and is significantly older than the claimant.

Majid only worked at AA Solicitors for a period of six weeks before her employer took steps to make her redundant. Majid claimed sexual harassment citing a variety of behaviour on the part of Mr Ali including, but not limited to, marriage proposals (Mr Ali is already married), lewd comments about installing a bed in the office and inappropriate touching.

Majid was successful in her claim and, among other awards, was granted damages for injury to feelings. In determining the extent of this award, the court considered the case of Vento v Chief Constable of West Yorkshire Police. This case set bands to be followed when granting injury to feelings. The lower band is £600-£6,000, the middle band is £6,000-£18,000 and the upper band is £18,000-£30,000 (all as adjusted for inflation in Da’Bell v NSPCC). The bands can also be uplifted by 10% (e.g. from £600-£6,000 to £660-£6,600) to reflect the fact that claimants can no longer claim success fees and “after the event” insurance premiums from the other side (Simmons v Castle).  

It was determined that Majid’s claim fell within the middle band and she was awarded £14,000 in respect of injury to feelings. This was decided in light of the facts that the claimant was a young woman at the beginning of her career whereas Ali was an older man in a position of power and authority over her. The Tribunal also noted evidence that Majid had visited her GP resulting from stress and anxiety caused by the harassing behaviour.

The respondents appealed arguing that the award for injury to feelings was excessive. It was claimed that Mr Ali’s behaviour had been “no more than modestly obnoxious” and “gauche and insinuating rather than aggressive”.

This appeal was rejected. The EAT emphasised the humiliation to an employee in such cases and felt that this should not be downplayed. It was acknowledged that another tribunal on another day may have awarded a slightly lower sum. However, the tribunal had nonetheless been quite entitled to grant the sum it did. The EAT will only be willing to overturn awards where the wrong Vento band has been used entirely or the case is borderline between two bands.

WJM’s employment team believes that this case, both at first instance and in the appeals tribunal, demonstrates well how the tribunal system will deal with sexual harassment claims. It both provides a reference point for how harassing behaviour will fit in the Vento band system and provides clarity as to when awards for injury to feelings may be challenged in the EAT.  

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Sandle v Adecco UK

In this case, the Employment Appeal Tribunal considered the question of an ambiguous dismissal.

The claimant, Sandle, was an agency worker, employed by the respondent, Adecco UK, but actually working on assignment elsewhere. After her assignment had finished, the relationship between the two parties appears to have lapsed. Adecco, apparently under the belief that Sandle was not interested in further agency work, did not take steps to contact her or find her another assignment. Sandle, for her part, also made no attempts to get in touch with Adecco.  

Sandle brought a claim for unfair dismissal before the first tier tribunal. Her claim was, however, dismissed. The tribunal found that she had never actually been dismissed and that an employer/employee relationship subsisted between the two parties.

The claimant appealed. She argued that there was a novel point as to whether a dismissal may be implied by the inaction of an employer to find work for an employee. Authorities such as Gisda Cyf v Barratt were cited in support of the contention that an employee could be dismissed by virtue of their employer’s conduct.

The Employment Appeal Tribunal did not disagree with the contention that an employee could be dismissed by dint of conduct. However, this did not discharge the general rule that the employer’s intention to dismiss must be unambiguously communicated to the employee. Such situations are factual matters where the burden of proof falls upon the claimant to prove his or her case.

For the present case, it was held that the Employment Tribunal did not err in requiring Sandle to prove that she had been dismissed by Adecco and that this had been communicated to her in an unambiguous manner. They had reached a reasonable conclusion that she had not proved this and so the appeal was accordingly dismissed.

WJM’s employment team believes that this case highlights the general need for an employer’s HR team to maintain clear and unambiguous practices in dealing with their employees. All communications, not limited to dismissal, ought to be made expressly and backed up in writing.

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