UK Employment Law case updates - September 2017

Latest UK Employment Law case updates - September 2017

1. Good news for part-time workers – pay proportionality is here
2. Shop floor or distribution centre? It's all the same for equal pay purposes…
3. Suspension leads to unfair dismissal

British Airways v Pinaud (EAT)

Where a part-time employee earns 50% of a 'full-time' salary, but works proportionately more than 50% of 'full-time' hours, this constitutes less favourable treatment under UK law (even if required under their contract). In deciding whether or not such treatment is legally justified (as a proportionate means of achieving a legitimate aim), tribunals should consider statistical evidence put before them.

The employee, a part-time member of cabin crew for British Airways (BA), claimed discriminatory treatment on the grounds of her part-time status because she:

1. had to be available to work for proportionately more days; and
2. was regularly required to work proportionately more duty hours, than her full time 'equivalents'.

BA's contractual shift patterns meant that full-time employees had to be available to work for 243 days per year. Although 50% of this figure is 121.5 days, the pattern applicable to part-time workers working for 50% of 'full time' pay meant they had to be available for 130 days per year. Proportionately, this required more days' availability for the same level of (pro-rated) pay. BA argued that the hours actually worked fluctuated, as cabin crew had to bid for flights of varying lengths on their available days.

The EAT upheld the Tribunal's original finding of less favourable treatment on ground (1) above. However, on the question of whether it was a proportionate means of achieving a legitimate aim, it concluded that the ET had been wrong to disregard statistical evidence showing the actual hours worked by the employee and her full-time equivalent. A newly constituted tribunal will consider the impact on the employee, with reference to this evidence.

Where employers engage part-time workers, every effort should be made to ensure that the pro-rata principle (with reference to comparable full-time workers) is reflected in their contractual arrangements and working patterns. Where any less favourable treatment is unavoidable due to a legitimate business interest, employers should record the business aim pursued and, where possible, use statistics to evidence how the relevant measures facilitate this in a proportionate way. Simply increasing a part-timer's salary will not necessarily solve the problem; the EAT emphasised the need to evaluate the impact of unfavourable treatment on individual employees when determining the question of proportionality.

Asda Stores Ltd v Brierley and others (EAT)

The EAT has dismissed an appeal from Asda and ruled that retail store workers are entitled to compare themselves to those based in distribution centres for the purposes of their equal pay claims. The ruling is the latest development in ongoing proceedings brought by over 7,000 current and former employees of the supermarket. It upheld the previous ET decision that the claimants, a group of predominantly female employees working in Asda's retail stores, can compare themselves to a group of higher-paid, largely male employees working in Asda's distribution depots, for the purposes of an equal pay claim based on 'work of equal value'.

Asda's latest attempt to halt proceedings was unsuccessful on all ten grounds of appeal. The EAT held that where there is a "single source" of pay and conditions for both the claimant and the comparator, a comparison between them is permitted irrespective of whether the employees are working in the same establishment (i.e. shop floor or distribution centre, in this case). Further, it agreed that the Tribunal is entitled to consider the similarity between the claimants' terms and those of the comparators at a different establishment.

In addition, the EAT clarified that where no direct 'comparator' is employed at any claimant's workplace, a comparison against a 'hypothetical' employee is permitted for the purpose of equal pay claims, as long as the comparator would have been employed on 'the same or broadly similar' terms to the claimants.

Although the EAT strongly encouraged Asda to resolve the extensive equal pay issues between these two groups of employees, it nevertheless gave Asda permission to appeal to the Court of Appeal, an opportunity they are likely to take up, given the exceptionally high value of the claims should the claimants be successful.

This outcome reiterates the importance of proactively identifying any pay gaps between female and male employees who may be undertaking 'broadly similar' work, and taking immediate steps to remedy them. Employers should note that 'comparability' for these purposes does not depend on working location, and that equal pay claims can be based on the envisaged pay of a hypothetical worker.

Agoreyo v London Borough of Lambeth (High Court)

The High Court has confirmed that, even in cases involving serious employee misconduct, suspension should not be a 'knee-jerk', default reaction on the part of employers. Decisions to suspend that are not carefully considered, explained and properly documented can constitute a breach of the implied term of trust and confidence, entitling the suspended employee to resign in response and claim constructive dismissal.

The employee, an experienced teacher, was accused of exercising unreasonable force towards one child on three separate occasions. Despite findings by the Head Teacher that any use of force had been reasonable, a letter of suspension was sent stating that this was a 'neutral action', 'not a disciplinary sanction' and that 'the purpose of the suspension is to allow the investigation to be conducted fairly'. The employee subsequently resigned, claimed that the suspension was a repudiatory breach of the implied duty of trust and confidence and issued proceedings in the County Court.

The County Court found in favour of the employer, concluding that it was 'bound' to suspend in the circumstances. However, on appeal, the High Court considered that conclusion to be too simplistic, noting a substantial body of case law that states suspension should not be the default response to misconduct where alternative remedial measures may be possible. In this case it was found that there was:

1. no attempt to establish the employee’s account of the incidents;
2. no attempt to ascertain what was known by other members of staff before deciding to suspend the employee;
3. no evidence that an alternative to suspension was considered; and
4. the suspension letter did not explain why an investigation could only be carried out fairly if the employee were suspended.

These points collectively were enough for the High Court to conclude that the implied duty of trust and confidence had been breached.

Whilst this is an outcome which turned very much on its facts, it does highlight the prudence in employers carefully evaluating the individual circumstances before suspending employees. It is also indicative of a trend towards increasing judicial scrutiny over suspensions. It points to employers needing to review their disciplinary procedures to ensure checks are in place to prevent 'knee jerk' suspensions. It may be appropriate to obtain legal advice before the decision to suspend is made.