Technical Update - February 2019 - in depth - Gateley
In depth

Technical Update - February 2019

Gateley Legal

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Stopping the clock indefinitely

Issue

Claimants need to comply with the ACAS Early Conciliation process prior to issuing a claim in the Employment Tribunal. In order to encourage the parties to participate in the consultation process the relatively short time limits for presenting a claim in the Employment Tribunal are suspended for the period that they consult. The clock starts ticking again when ACAS emails out the Certificate that the employee will need to submit their claim. The issue in Galloway v Wood Group UK Ltd was whether time continued to be suspended if ACAS sent the Certificate to a non-existent email address. 

Facts

Mr Galloway’s representative had entered his contact details as johnboland@unitetheunion.org whereas it should have been john.boland@unitethe union.org. ACAS emailed the certificate to the address given but it was never received and as it did not “bounce” back ACAS did not follow it up. When the error was eventually picked up a further copy of the certificate was sent to Mr Galloway's personal email address but the time limit for presenting a claim had by then expired and his claim was rejected on the grounds it had been reasonably practicable to present it in the time limit.

Decision

It was held that when ACAS had sent the Certificate to the invalid email address it did not start time running again. The Regulations referred to “an email address” which had to be construed as meaning an actual real email address. It considered that Parliament could not have intended the words “an email address” to include invalid addresses that could not be recognised by a computer server and forwarded on. Given that time did not start to run again when ACAS sent the certificate to the invalid email the case could continue. 

Action

Clearly, care should be taken when notifying ACAS that the correct email address is given. It could have easily been a lot worse here for the claimant as had the email address provided simply been wrong rather invalid the clock would have started ticking and his claim would have been out of time. Employers might fear that following this decision a rogue claimant might deliberately provide an invalid email in order to suspend the timetable indefinitely. However whilst that might appear to be possible it would not seem to give any advantage to the claimant who would generally want to get to Tribunal.

Paying over your share

Issue

If an agency worker is on an assignment for more than 12 weeks they will have the right to the same basic working conditions as those who have been employed directly by the hirer to do the same job. This includes the right to the same pay. The issue in the recent case of London Underground Ltd v Amissah and others was who should be liable to pay a shortfall in wages where the right had been breached. 

Facts

Thirty-one agency workers had successfully brought a claim that they should have been paid the same as London Underground workers who had been doing the same job as them during their assignment. Both the agency and London Underground were equally to blame for the shortfall. However, the agency had gone into liquidation without passing on the monies that London Underground had paid to it to meet the shortfall. 
 
Decision

It was held that despite the fact that London Underground had already provided the agency funds to pay the arrears it did not mean that the agency workers should be denied the compensation that they were due. London Underground was ordered to pay 50% of the compensation even though it had already made the payment. It was considered that as London Underground had chosen to contract with the particular agency it had to face the cost of its dishonesty.

Action

Whilst the liability for ensuring parity will primarily fall on the agency it will be important for employers to ensure that they provide the agency with sufficient remuneration details to meet this obligation. What this decision highlights most is how the agency's wrongdoing can have financial consequences for the hirer.  Care should be taken that an established employment business is used that can be trusted to comply with its legal obligations under the Agency Worker Regulations. 

Can new starter terms be ageist?

Issue

If an employer is forced to make budget cuts and as a result, all new recruits are appointed on less beneficial terms than those appointed in previous years will that give grounds for a claim of age discrimination? That was the issue that was considered by the European Court of Justice (ECJ) in the recent Irish case of Horgan and another v Minister for Education & Skills and others

Facts

Mr Horgan and Ms Keegan were school teachers in an Irish State primary school. As part of the 2011 Budget, the Irish Government had put in place salary arrangements by which newly recruited public servants, including teachers in national schools, were recruited on lower pay than teachers already employed before a specified date. The teachers brought claims alleging the difference in treatment amounted to indirect age discrimination. 

Decision

Two grounds of justification were put forward by the Irish Government firstly the need for Ireland to respond to an economic crisis and secondly the obligation to adhere to a collective agreement that prohibited any reduction of the remuneration of public servants recruited before 2011. However, the ECJ held that justification was not required as there could be no discrimination where the difference in treatment resulted from the date of recruitment which applied regardless of the age of the new recruit. 

Action

The decision provides some reassurance for employers where a change in wage structure has left newer recruits with less pay than those already employed. If the differences can be explained by reference to the date that the employee started and they apply regardless of their age it will not give grounds to claim age discrimination. However, steps should always be taken to reduce pay differences wherever possible as it may eventually lead to other claims including equal pay.

Are you going to breach my rights?

Issue

An employee will usually need to have two years’ continuous service before they can bring a claim of unfair dismissal. However, there are some exceptions including where the employee is dismissed because he or she asserted a statutory right. The case of Spaceman v ISS Mediclean Limited t/a ISS Facility Service Healthcare considered whether that might include where it is alleged the employer will breach their statutory right by doing something in the future. 

Facts

Mr Spaceman had been employed as a hospital porter since 13 October 2015. In April 2017 complaints of sexual harassment and assault were received from three female employees. The allegations were investigated and Mr Spaceman was called to a disciplinary hearing. At the hearing, he told the panel that he knew the decision to dismiss him had already been taken and that they were going to unfairly dismiss him. The panel decided that he should be summarily dismissed.

Decision

His claim was struck out as he had not got sufficient service to bring a claim and none of the exceptions applied. Mr Spaceman may have argued that his dismissal was due to his allegation that the employer was going to unfairly dismiss him. However, this did not provide him with protection or make this an automatic unfair dismissal. In order for the exception to apply, he would have to be dismissed for making an allegation that his statutory rights had been breached not will be breached.  

Action

The decision provides useful clarification of what the employee will have to establish in order to be able to claim automatic unfair dismissal and avoid the need for two years' service under this heading. It appears that it is narrower than other forms of protection that an employee might try to rely upon which provide there is no qualifying service needed for an unfair dismissal claim because the employer simply proposes to do something. 

Equal pay for different employees

Issue 

It is clear that equal pay claims can be brought by men or women on the grounds that the employer is paying another employee of the opposite sex more for doing the same work. However, where the employee claims that the work that they do is of equal value can a claim be brought comparing other employees doing entirely different jobs in separate parts of the business? That was the question before the Court of Appeal in the ongoing case of Asda Stores v Brierley.

Facts

About 7,000 employees based in Asda stores had brought claims that they were paid less than employees in Asda’s distribution centres. However, these two groups of staff worked in very different locations and the terms which applied were historically and qualitatively distinct. The terms that applied to the retail staff were set by the Asda board but the distribution staff terms were generally agreed through collective bargaining between the Unions and a different part of the organisation.

Decision

It was held that these differences did not undermine the fact that the pay ultimately came down to a single source. The company’s executive board had the power to set pay and conditions for both parts of the workforce even though in practice it did not actively get involved. The fact the power was there was sufficient to enable a comparison to be made between the two groups of employees. It followed that their claims of equal pay on grounds of equal value could continue. 

Action  

The decision shows the importance of considering the pay scales across the whole organisation when assessing if there is an equal pay risk. Even if the two parts of the workforce do not appear to be related in any way there could be a valid claim. However, it should be remembered that just because there is a difference does not mean an equal pay claim succeeds. It still has to be decided whether the work is of equal value and whether the reasons for the difference amount to a material factor defence. 

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