Employment case law update | April 2021

Published: 22nd April 2021
Area: Employment
Here we take a quick look at some key employment case law decisions from recent months.
Asda v Brierley - Equal pay

This case involved female store staff claiming that they should receive the same pay as their male colleagues who worked in the distribution warehouses. It has been long established that men and women should receive equal pay for equal work (originally a right granted under the Equal Pay Act 1970 and more recently under the Equality Act 2010). A claim for equal pay comes in three stages:

  1. Are the roles comparable?
  2. If so, are they of equal value?
  3. If they are of equal value, is there a reason why the terms and conditions should differ?

This case concerned the first stage, namely whether the store workers could compare their roles to those workers in the distribution warehouses. Asda argued that the roles were not comparable because there were no common terms between the roles, particularly given that the roles were at different establishments.

However, the store workers claimed that comparison was possible in any case where there was a "single source" for the terms of employment of a claimant and their comparator. The employment judge agreed and held that there were common terms generally between the claimants and the comparators and a significantly broad correlation or comparison between the terms in retail and distribution.

The judge also held that any differences were not so extensive as to undermine that comparison.

Asda appealed this decision all the way to the Supreme Court, which has recently upheld the original decision. While significant, this decision is not the end of this litigation. The case has now been remitted back to the tribunal to determine whether the work is of equal value. The outcome of this case will be carefully watched across the retail sector as it could have implications for thousands of workers.

Smith v Pimlico Plumbers – Holiday pay

This case has established that, whilst a worker has a right to carry over unused leave where an employer has refused to pay the worker for that leave, the same right does not apply where the worker has taken that leave, albeit unpaid.

Mr Smith is a plumbing and heating engineer who worked for Pimlico Plumbers between 2005 and 2011. Throughout the period, Pimlico maintained that Mr Smith was a self-employed contractor, which meant he had no entitlement to paid leave. Mr Smith issued a claim in 2011 for, amongst other things, unpaid holiday pay.

An employment tribunal dismissed Mr Smith’s claim on the basis that it was out of time. However, it also held that, given the fact that Mr Smith had taken periods of unpaid leave during his time with Pimlico, he was no longer entitled to carry this leave forward into another leave year, unlike workers who had not taken any leave at all because their employer refused to pay for the leave.

Mr Smith appealed to the EAT but this appeal was dismissed.

Mencap v Tomlinson Blake – Pay and National Minimum Wage

This case concerned the payment for so-called “sleep-in” shifts, which are prevalent in the care sector.  These typically involve a care worker sleeping overnight in a bedroom at a care home.  The worker is expected to sleep for the duration of the shift and won’t have to “work” unless there is an issue that requires their assistance.

Historically, almost all care providers paid a fixed rate for sleep-in shifts, typically in the region of £30 to £50, rather than paying an hourly rate for the shift. In the early to mid-2010s a series of legal challenges were raised by employees arguing that the entirety of the sleep-in shift should count as “working time” for national minimum wage purposes and that the fixed rate approach, therefore, meant they were being paid below national minimum wage.

A number of these cases succeeded at tribunal and these decisions were mostly upheld by the Employment Appeal Tribunal.

Mencap were on the wrong end of one such decision and recently appealed to the Court of Appeal, which found in their favour.  The judges took the view that the employees were “available for work” rather than actually working.

The claimant, Mrs Tomlinson-Blake, was given leave to appeal to the Supreme Court. Her appeal was unsuccessful as the Supreme Court upheld the Court of Appeal’s decision and found in favour of Mencap.

This decision will come as a huge relief for care providers, many of which were facing huge back pay liabilities had the appeal succeeded.

Cox v Addecco - Litigants in person and strike out orders in employment tribunals

“You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is” was the judge’s opening comment in the judgment of the recent case of Cox v Addecco.

In this case the Employment Appeal Tribunal (EAT) provided guidance on how employment tribunals should deal with litigants in person and strike out applications.

The claimant’s principal claim was that of whistleblowing. The respondent applied to have the claim struck out on the basis that there was no reasonable prospect of success and was successful in its application. The claimant appealed.

In determining the claimant’s appeal, the EAT noted that litigants in person should not be expected to explain their case and take the judge to the relevant materials. Rather, the onus is on the judge to consider the pleadings and other core documents that explain the case to ascertain the claims and the issues raised. Further, the tribunal must make a reasonable attempt at identifying the claims and issues before considering a strike out or making a deposit order.

The judge went on further to find that the issues were not sufficiently identified in this case, which was the backdrop to the errors of law the tribunal made in determining that the claim of protected disclosure detriment or dismissal had no reasonable prospects of success because the tribunal:

  1. failed to sufficiently analyse the information the claimant contended he had disclosed;
  2. failed to consider the context in which the disclosure was made;
  3. misdirected itself as to the test for whether protected disclosure were in the reasonable belief of the claimant made in the public interest; and
  4. failed to properly analyse to whom the disclosure was made, and whether it was arguable that any qualifying disclosure was protected.

This case demonstrates that employment tribunal judges are expected to assist litigants in person in identifying the issues in their claims.

Further, whilst it can be tempting for a respondent to make an application for strike out in cases where a claimant fails to properly set out their claim, doing so without taking appropriate steps to obtain additional information may have little chance of success and could ultimately result in unnecessary time and costs being incurred.

Elliott v Dorset County Council - Interpretation of disabilities

The Employment Appeal Tribunal (EAT) has made a significant decision on the interpretation of disabilities, in particular the test for whether a person is disabled for the purposes of the Equality Act 2010.

In the case of Elliot v Dorset County Council UKEAT/0197/20, the EAT was asked to consider the definition of a disability, and in particular the nuances of interpreting whether a particular condition is deemed as a disability based on the effects it has on the individual. The statutory definition of a disability is defined in s.6(1) Equality Act 2010.

"A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Deciding exactly what constitutes a “substantial and long-term adverse effect on [one’s] ability to carry out normal activity” will often depend on contextual information, so s.212 Equality Act 2010 describes it as applying when the adverse effect is “more than minor or trivial”. This supporting definition is therefore used by tribunals across the country to determine whether someone is disabled in cases where disability is an issue of fact.

However, The Equality Act 2010 also has detailed official guidance, published by the government, which can be used to analyse further the issue of whether a person is disabled. In the guidance, there is a section called “Guidance on matters to be taken into account in determining questions relating to the definition of disability”. This section advises considering factors like the time taken to complete tasks, the way in which an activity is carried out, the potential for cumulative effects of an impairment and others to assist in deciding whether the condition does indeed have a “substantial adverse effect”.

If the guidance does not provide a sufficient answer, for employers and employees, there is also the “Employment: Statutory Code of Practice”, which is effectively even more guidance that sets out a code of best practice for employment matters in particular.

In the case of Elliot v Dorset County Council, the EAT stated in their judgment, that the statutory definition in s.212 of the Act took precedence over the official guidance or the employment statutory code of practice. This means that if a person meets the s.212 test of the adverse effect being “more than minor or trivial”, this is sufficient.

The EAT made clear that further analysis based on the guidance or the statutory code would not undo the passing of the s.212 test, as the s.212 test takes precedence and “that would normally be the end of the matter”.

The EAT nonetheless emphasised that the tribunal can and should take into account the guidance or the code when relevant, which is likely to be where the s.212 test does not immediately provide a clear answer. They also pointed out that the statutory tests in the Equality Act should always be read in the context of the Act as a whole, so that the tests can be properly applied to the circumstances of each individual case before them.

The judgment was handed down on 9 April 2021, with the EAT ordering the case to go before a fresh tribunal to re-consider whether the claimant was disabled based on the clarified precedence of the statutory test of “substantial adverse effect”.

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If you have any queries about how the above case law may affect your business, contact a member of your local employment team.

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