September Employment Briefing

• Employment Appeal Tribunal allows equal pay claim against Asda to continue
• ACAS guidance: workplace support for parents with premature or sick babies
• Update: Early impact of the Supreme Court Ruling that Employment Tribunal fees are unlawful
• Update: Monitoring workers' emails

Welcome to September's Employment briefing.

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

Employment Appeal Tribunal allows equal pay claim against Asda to continue

Last year, over 7000 Asda employees issued equal pay claims in the Manchester Tribunal. They argued that retail store workers carry out work of “equal value” to those in the distribution centres, making the latter appropriate comparators for the purposes of an equal pay claim. Store workers are predominantly women, whereas the distribution centre workforce is mainly comprised of men.  

Asda contended that it was not possible to draw a comparison between the roles because the shops and distribution centres were run by different departments and the rates of pay were set using a different method. The Tribunal rejected this in October 2016. Asda appealed to the Employment Appeal Tribunal which has now upheld the initial decision, allowing the UK’s largest private-sector group equal pay claim to proceed. 

The Employment Appeal Tribunal highlighted some important points when establishing comparators in equal pay claims. Amongst them was their decision that if no actual comparator works at the claimant’s establishment, the claimant can use a hypothetical comparator. This involved considering whether, if distribution staff had been employed in retail stores, they would have been employed on broadly similar terms to the staff in the distribution centre. They decided that the answer to that question was yes, enabling the claimants to compare themselves to a hypothetical distribution worker employed in a store.

This is unlikely to be the final word on the matter since the Employment Appeal Tribunal then gave Asda permission to further appeal to the Court of Appeal. Asda has indicated that it will proceed with another appeal.

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ACAS guidance: workplace support for parents with premature or sick babies

New guidance was published on 5th September to assist employers in supporting staff with premature or ill babies.

Acas’ advice for employers includes:

• Being compassionate and sensitive in all communication;
• Being discrete - ask parents what they would like to tell their colleagues about their situation;
• Making employees aware of statutory entitlements to leave, such as shared parental leave; and
• Trying to be flexible in giving time off when parents return to work as the baby may have follow up appointments or treatment.
   

Acas Chief Executive, Anne Sharp, said:

"There are over 95,000 premature or sick babies born each year in the UK.  For their families this is an emotional and difficult time. Working parents in these circumstances often find themselves trying to handle the demands of their job, caring for their new-born and looking after other family members.   Our new advice helps explain the law within this complicated area in a way that will help employers support working parents whilst taking account of the needs of their business."

The new guidance can be found here

 

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Update: Early impact of the Supreme Court Ruling that Employment Tribunal fees are unlawful

The Supreme Court recently ruled that Employment Tribunal fees are unlawful in the long running UNISON case.

As of now, fees no longer need to be paid to be able to bring a claim (or have the hearing on a claim) in the Employment Tribunal or in the Employment Appeal Tribunal. Any fees already paid can be reclaimed.  

Whilst it is still early days, there have already been some recent developments of interest as a result of the Supreme Court’s decision.

In A v B, Employment Judge Brain at the Sheffield Employment Tribunal declined to order that the Respondent should pay the successful Claimant's fees, on the basis the Claimant would soon be able to recover the fees from the government and thus there was no purpose in ordering the Respondent to indemnify him.  

Tribunals are now reinstating cases which were struck out for non-payment of fees. 

Going forward it is likely that the Government will now review the fee system taking into account the points raised in the judgment. It may introduce a new system and choose to link fees to the value of the claim, reduce fees or require respondents to pay fees when they file a response to a claim.

Removal of the fee barrier will no doubt increase the possibility of a claim being brought. Employers should factor this into their internal policies and procedures for disciplinary and grievance matters. A small amount spent on legal expenses to head off the possibility of a claim, may be a better investment than having to resist a claim once it is brought to a Tribunal.

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Update: Monitoring workers' emails

Back in January 2016 Andrew Pattie reported on the ECHR’s decision in Barbulescu v Romania, which established that a Romanian employer acted lawfully when it monitored an employee's Yahoo messenger account.

The decision was appealed to the Grand Chamber of the ECHR (17 judges instead of the usual 7) and the Grand Chamber has reversed the 2016 decision.

The reasoning behind this new decision is complex but the main point is that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should tell the worker that their communications might be monitored.  In Barbulesca the employee knew that it was forbidden to use his employer’s computers for personal purposes, but he had notbeen told that the employer was monitoring his communications. 

Thus the ECHR have now held that Romanian law failed to strike a fair balance between the employer's and the employee's interests.  Accordingly there was a breach of Article 8 and the employee was entitled to compensation.

This new decision is still relevant for the purposes of UK employment law because the UK is a signatory to the ECHR. It is clear authority that monitoring employees emails could breach their Article 8 right to privacy where such monitoring had not been previously intimated to the employee.

The warning in our 2016 article still stands - employers are advised to ensure their policies and procedures are clear as to any restrictions on private e-mail correspondence and must ensure that employees are fully aware that communications may be monitored.

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