Employment Law Newsletter – February 2019
- Equal Pay: Female retail staff can compare themselves to male distribution workers
- Direct Discrimination: Claimant must provide sufficient evidence to make out case
- Dismissal: Contractual duty of confidentiality
- Tribunals: The principle of open justice versus the individual’s right to privacy
- Working Time Directive: AG says national law must require employers keep records of actual time worked by workers
- ACAS: New Age Discrimination Guidance
- Pregnancy and maternity discrimination: Consultation on proposals to extend redundancy protection for women and new parents
- Gender Pay Gap: GEO publish research on outcome of 2018 Gender Pay Gap reporting
- Information Commissioner: Recent enforcement action and warning for directors
Equal Pay: Female retail staff can compare themselves to male distribution workers
In our January round-up we reported that the decision in the case of Asda Stores Ltd v Brierley and others  EWCA Civ 44 that was heard in the Court of Appeal in October was awaited. The judgement was published on 31 January 2019 and the Court upheld the prior decisions of the employment tribunal and the EAT, and dismissed the appeal. The claimant group comprised mostly female retail employees in the supermarket and they were attempting to use the mainly male group of offsite distribution depot employees as their comparator for the purposes of their equal pay claim. In order to bring an equal pay claim, a claimant must identify a comparator of the opposite sex performing equal work. There are three categories of equal work: “like work”, “work rated as equivalent” (under a job evaluation scheme) and “work of equal value”. Both the claimant and comparator must be working for the same employer or associated employers, and must be at the same establishment or at different establishment to which common terms and conditions apply. “Common terms” does not mean identical terms but they may be “broadly similar” (British Coal v Smith  ICR 515 (HL)).
The claimant group acknowledged that they did not work in the same establishments as any of their comparators, because Asda’s stores and its depots were entirely separate; but they claimed that “common terms of employment” applied at both, either generally or as between themselves and their comparators, so that they could rely on s 79(4)(c) Equality Act 2010 (or that they were in the same employment as defined in s 1(6) the Equal Pay Act 1970). Alternatively, the claimants relied on the direct effect of Article 157 of the Treaty on the Functioning of the European Union which provides that: “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. They argued that comparison was possible in any case where there was a “single source” for the terms of employment of the claimant and the comparator.
The Court of Appeal held that:
1) For both retailworkers and distribution workers, Asda applied common terms and conditions “wherever they work“. The effect of the case-law, and of North v Dumfries and Galloway Council  ICR 993 in particular, was that the phrase “wherever they work” extends even to the hypothetical situation of a workplace where they would never, in practice, work because the nature of its operations is so different. So, even though the two groups of employees worked at separate establishments – meaning no one from either establishment could or would have worked at the other – a comparison could nonetheless be made because Asda observed “broadly common terms and conditions” for both groups across both establishments. When considering this point, the Court of Appeal said the tribunal had muddled (albeit still arrived at the correct conclusion) considering whether there were broadly similar terms between retail workers at one site and distribution workers at the other site. Lord Justice Underhill said this was the wrong exercise and that the issue was, would a distribution worker be on broadly the same terms regardless of which site he worked at?
2) There was a “single source” for the terms of employment, as the Asda Executive Board was ultimately responsible for pay across the two groups, and therefore was capable of rectifying the inequality and restoring equal treatment. The Courtwas not required to decide whether the relevant EU provision had direct effect at this time.
This matter is a long way from over, however, as it can now proceed to the next stage in order to determine whether the work of the two groups was of equal value. Asda has a lot riding on this (claims potentially worth over £100m against them) so they are working every angle they can.
Direct Discrimination: Claimant must provide sufficient evidence to make out case
In Efobi v Royal Mail Group Ltd  EWCA Civ 18 Mr Efobi was a black Nigerian who, although employed as a postman by Royal Mail, failed to secure a different role in management or IT, despite many attempts and his graduate and post-graduate qualifications in Information Systems and Forensic Accounting. He brought a claim of direct discrimination against Royal Mail, and represented himself in the proceedings.
The issue revolves around:
- Section 13(1) of the Equality Act 2010, which requires a comparison between the claimant and either an actual or a hypothetical comparator in order to establish less favourable treatment of the claimant.
- Section 136 of the Equality Act 2010, which deals with the burden of proof:
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.
First, the burden is on the employee to establish facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. At that stage the tribunal must leave out of account the employer’s explanation for the treatment. If that burden is discharged, the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to satisfy the tribunal that it was not tainted by a relevant proscribed characteristic. If he does not discharge that burden, the tribunal must find the case proved.
Royal Mail did not provide any evidence about the identity or qualifications of the successful candidates; and Mr Efobi did not pursue this through discovery. The tribunal followed s.136 and found that Mr Efobi had not provided facts from which discrimination could be inferred, and the claim had to fail.
At appeal, the EAT thought the tribunal should have considered whether it should draw inferences from the Royal Mail’s reticence to provide information about the successful candidates. The Court of Appeal disagreed. The simple case was that the burden was on Mr Efobi, as claimant, to prove his case at the first stage – to provide sufficient information to the tribunal to enable it to identify the characteristics of the proposed comparator, from which the case of less favourable treatment could be made out. It was not up to the tribunal to make inferences. The claimant had failed to prove his case and the appeal was dismissed.
Dismissal: Contractual duty of confidentiality
Large law firm, Linklaters, has just won an interim injunction against their former Director of Business Development and Marketing (Linklaters LLP v Mellish  EWHC 177 (QB)). In June 2018, he had been given 6 months’ notice to terminate his contract and the firm confirmed he would be paid his contractual entitlements and a substantial additional ex gratia sum. In his employment contract there was an express obligation of confidentiality which the letter of termination expressly stated was to persist after his employment came to an end. In January 2019, having received his final payments, Mr Mellish emailed the Senior and Managing Partners to express his dissatisfaction that the termination of his employment at his age was effectively the end of his career, and stated that he intended to “share my impressions of the current culture at Linklaters” with particular reference to what he called “the ongoing struggle Linklaters has with women in the workplace“. He said that, to that end, he would be giving “interviews” in the first two weeks of February. He gave specific examples and said his motive was to allow Linklaters to prepare for the questions from the media.
The firm claim the information to which he referred is confidential information relating to partners and/or employees of the firm, and therefore falls within the scope of his ongoing contractual confidentiality obligation. The claimants’ application was for an injunction to restrain disclosure of four specific areas of information. The claimants did not seek to restrain the defendant from publicising in general terms his “impressions of the current culture at Linklaters“.
The question before the court was whether Mr Mellish’sduty of confidentiality outweighed the public interest in the publication of information on the employer’s current culture and the position of women in the workplace. It was accepted that the first and fundamental requirement for granting an injunction is for the claimants to satisfy the Court that there was a real risk of publication which was sufficient to justify the interference with the defendant’s freedom of expression by granting the injunction. The Court held this to have been proved, and further that it was satisfied that there was a high likelihood that Linklaters would succeed at trial in showing that publication should not be allowed. The information fell firmly within the contractual duty of confidence, it was not in the public domain, and the interests of the third parties also bolstered the case. Justice Warby said that while there may be a legitimate public interest in organisations performing their moral and social duties to their staff, that did not override the legitimate interest in maintaining confidentiality. The defendant was also ordered to disclose the identity of any people to whom he had disclosed all or any part of the information at issue with a view to publication.
Tribunals: The principle of open justice versus the individual’s right to privacy
In Ameyaw v PricewaterhouseCoopers Services Ltd UKEAT/0244/18 Miss Ameyaw brought a number of claims in the employment tribunal against her former employer PricewaterhouseCoopers Services Ltd (PWC). It seems from the beginning she wanted the matters to be dealt with in private. In any event, PWC applied to strike out her claims following her alleged “scandalous and vexatious conduct” at a preliminary hearing. The strike-out application was heard in public, and was dismissed. The judgment, with full written reasons, was entered on the public register of tribunal judgments including online on the ‘Gov.uk’ website. At a final hearing Miss Ameyaw’s claims were dismissed, following which she applied for an order that this judgment should not be entered on the register, the strike-out judgment (which was published a year earlier) should be removed; and/or that she should be anonymised in both judgments.
Her application was refused by the tribunal judge on the basis that there was no discretion not to publish a tribunal judgment on the register and that rule 50 of the Employment Tribunal Rules of Procedure 2013 did not provide any basis to override the principle of open justice. Miss Ameyaw appealed on the ground that the online publication of the strike-out judgment (only, the final hearing judgment was not published, reason unknown) breached her right to privacy under Article 8 of the ECHR.
The EAT upheld the tribunal’s decision – the tribunal had been entitled to find that in this case the claimant’s right to privacy under Article 8 did not outweigh the principle of open justice and the right to a free trial and freedom of expression under Articles 6 and 10 of the ECHR. Miss Ameyaw’s claim that the online publication of the judgment had caused “long lasting damage to [my] personal and professional reputation resulting in significant losses” and prevented her securing new employment was not sufficient to outweigh the fundamental principles and rights upon which the employment tribunal system is executed.
Working Time Directive: AG says national law must require employers keep records of actual time worked by workers
Advocate General Pitruzzella has given his opinion in a preliminary ruling in the CJEU in Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C‑55/18). The case is a group action brought by trade union CCOO against Deutsche Bank in the National High Court in Spain. CCOO are seeking a judgment that the bank was under an obligation to record the actual daily working time of its employees in order to ensure that the working times laid down in legislation and under collective agreements are actually adhered to. Deutsche Bank, like many other employers no doubt, uses an Absences Calendar which records absence for full working days such as annual leave or sick leave, but actual hours worked are not recorded.
Attorney General Pitruzzella (whose opinion as AG is not binding, but is usually followed by the CJEU) stated that in order to comply with duties under the Working Time Directive, national law must require employers keep records of actual time worked by workers (i.e. the Member States must, in implementing the directive, ‘take the measures necessary’ to ensure that workers enjoy the rights which the directive guarantees), and where there are not mechanisms to do so implemented by the legal system of a Member State, then it undermines the effectiveness of the directive.He commented, at paragraph 89:
In my opinion, it follows from all the foregoing considerations that national legislation which does not impose any obligation upon undertakings to introduce a system to record the daily working time of all employees is inconsistent with European Union law. It nevertheless remains for the referring court to ascertain whether the national provisions under discussion in the main proceedings can in fact be interpreted in a manner consistent with the provisions of Directive 2003/88 at issue and Article 31(2) of the Charter.
ACAS: New Age Discrimination Guidance
Under the Equality Act 2010, age is one of the nine special areas of life guarded as what is known as protected characteristics. ACAS has published new Guidance on Age Discrimination to help employers and line managers manage an age diverse workforce, prevent unfair treatment at work, and eradicate bias against older and younger workers.
- a document entitled ‘Key points for the Workplace’ which is aimed at employers, managers, HR professionals, employees, employee/trade union representatives and job applicants alike, steps to take to prevent age discrimination happening in the workplace, gives examples of how age discrimination might still occur, and demonstrates how age discrimination should be dealt with if it does happen;
- a ‘top ten obligations’ factsheet for employers to help reduce the chances of age discrimination occurring; and
- a’ top ten myths’ sheet in which they dispel myths about age as it relates to the workforce.
Pregnancy and maternity discrimination: Consultation on proposals to extend redundancy protection for women and new parents
Following recent reports such as the Taylor Review and the Women and Equalities Select Committee’s report on Pregnancy and Maternity Discrimination,on 25 January 2019, BEIS opened a consultation seeking views on several matters which seek to improve the rights of women and new parents in the workplace. Evidence has shown that new mothers are being forced out of work when they seek to return, and so the Government is seeking views on whether an extended period of additional protection against redundancy, might be the best way to address this issue. They seek views on:
- proposals to extend the redundancy protection of new mothers from the date they notify their employer in writing of their pregnancy to six months after their return from maternity leave; and
- whether this protection should be extended to others taking similar leave, such as adoption leave and shared parental leave.
The consultation closed on 5 April 2019.
Gender Pay Gap: GEO publish research on outcome of 2018 Gender Pay Gap reporting
The Government Equalities Office (GEO) has published a report ‘Employers’ understanding of the Gender Pay Gap and actions to tackle it’. The report used data gathered from a 2017 survey about employers’ awareness, understanding and actions regarding the gender pay gap (GPG), which was then compared against a follow-up 218 survey. The 2018 survey also included employers’ understanding of the gender pay gap, their experiences with compliance and the actions they were taking to close the gap.
Some of the results are promising:
- 82% of respondentsbelieved they had a good understanding of what the GPG is and how it is calculated, up from 48% in 2017;
- There was an increase from 63% (2017) to 88% (2018) in the proportion of respondents who believed they had a good understanding of the differences between “closing the gender pay gap” and “ensuring equal pay between men and women“;
- the proportion of employers that had developed a GPG strategy had increased from 21% in 2017 to 34% in 2018;
- over half of employers with a GPG of over 20% had come up with a formal strategy to reduce it, including measures such as the promotion of flexible working and shared childcare, cultural changes within firms and gender-specific recruitment strategies.
Unfortunately, there are still some areas that require improvement, such as 16% of respondents felt they had a reasonable understanding of what the GPG is but were unsure on the specifics, while the remaining 2% said they had a limited understanding. The overall difficulty of compliance showed mixed results: 35% found it very or fairly straightforward, while 30% found it very or fairly difficult and 33% believed they would have benefitted from additional guidance. Overall, this is promising feedback but just shows that there is still work to be done across the board, and of course, this information only represents the largest employers.
Information Commissioner: Recent enforcement action and warning for directors
The ICO has published details of one of its latest enforcement actions against NWR Limited, which is a supplier and fitter of renewable energy products, based in Kent. The company is said to have made 827,883 calls to numbers registered with the Telephone Preference Service (TPS) between May 2016 and May 2018. Companies are prohibited from calling people (direct marketing) registered with the TPS without that person’s consent. The Information Commissioner issued an enforcement notice to NWR Limited to compel it to stop its illegal marketing activity. It appears they were not using the correct data, have not purchased a TPS licence and the staff making the telephone calls were not properly introducing themselves and explaining the company about which they were calling.
In December, the ICO also issued a monetary penalty of £200,000 and an enforcement notice to ‘Tax Returned’, a London-based firm which sent out 14.8m unlawful SMS marketing messages to subscribers between July 2016 and October 2017. These messages were sent without valid consent having been obtained using a third party service provider. Tax Returned should have taken reasonable steps to make sure the data they obtained complied with the Privacy and Electronic Communications Regulation (PECR), which includes getting specific, prior consent from people receiving the messages. Some of the consents were obtained through generic third party consent found on privacy policies of certain websites but the ICO found that the wording of the policies was not clear enough and that neither Tax Returned nor the third party service provider were listed on most of those privacy policies.
On 17 December 2018, ‘Director’s Liability’ was introduced through amendments to the Privacy and Electronic Communication Regulations 2003. The new law allows the ICO to serve monetary penalties, of up to £500,000, on directors and senior officers of companies held responsible for making nuisance calls or sending nuisance messages or emails.
Lessons to be learned here are check you are using the correct data and that it has been obtained lawfully, and this includes if you contract with a third party to carry out your marketing activities.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.