News & Updates
Employment Law September E-briefing
In this edition of our monthly employment law e-briefing we cover:
Transfer Regulations
Age Discrimination
Heyday Setback
Disclosure
Transfer Regulations
The effect of the Equal Pay Act is to imply an equality clause into contracts of employment. This means that if a woman is paid less than a man for work of equal value she is deemed to have a contractual right to the higher salary.
In a recent employment case, the tribunal had to decide whether implied right should transfer, under the transfer regulations, to the transferee employer. The tribunal decided that it should. In this case a number of female cleaners are pursuing a claim against their new employer (Sodexo Limited) - five years after the date of transfer - citing as a comparator male maintenance workers who remained in the employment of the transferor employer (an NHS Trust). This is on the basis that they had been employed "in the same employment" and they had and continue to have the right to receive what the men were paid. If they are correct then this right transferred and Sodexo have been underpaying them for the period of their employment following transfer. Sodexo are therefore facing a claim from a number of female employees for up to five years back pay in relation to an inequality which they neither created nor knew about. Where possible employers should consider obtaining an indemnity in relation to all potential staff claims from a transferor employer.
Age Discrimination
Age discrimination may be justified in law if an employer can show that the difference in treatment was a proportionate means of achieving a legitimate aim. Age discrimination is the only kind of direct discrimination that is capable of justification. Therefore, it may be that an employer could justify discrimination if he was able to show a business need to encourage and reward the loyalty of older employees. In its decision concerning two separate cases where the employers' discriminatory contractual redundancy schemes were being challenged, the appeal tribunal gives us some guidance on how to approach justification of age discrimination. In considering justification a Tribunal will balance the needs of the business against the discriminatory effect on the employee. It should be noted that it is permissible for employers to operate contractual redundancy schemes which vary payment according to the employee's age as long as the employer's scheme closely mirrors the statutory redundancy scheme. The schemes at issue in these cases went beyond that. One point of interest is the Tribunal's warning that the fact that a scheme is collectively agreed between employer and trade union it is not a guarantee that it will be justified.
Heyday Setback
The decision of the Advocate General in the "Heyday" case has now been issued. Heyday, part of Age Concern, challenged the UK Government's implementation of the EU Directive on Age Discrimination. At issue is whether imposing a mandatory retirement age of 65 is itself discriminatory. The Advocate General rejected Heyday's arguments: if it could be objectively and reasonably justified by reference to national employment policy and the labour market, the imposition of a compulsory retirement age was not inappropriate. The Advocate General's opinion is not a final decision but it is an indication of the likely outcome of this case. There are currently over 250 cases at Tribunal awaiting the decision of the European Court of Justice which is expected in December.
Guilty until proven innocent
The deputy principal of a college sought to challenge the decision of a Chief Constable to disclose to his employers on an enhanced criminal record certificate (Enhanced Disclosure in Scotland) the fact that he had been accused of sexual abuse by young men in his care. The individual sought to argue that the information should not have been disclosed at all because the allegations lacked coherence and credibility and no-one could have reasonably believed that any of them might be true. The court found that the threshold for Disclosure is necessarily low on public policy grounds in relation to the employment of children and vulnerable adults. However, it warned against the employer applying a blanket policy of dismissing any individual who is unable to provide a clean certificate.
If you would like any further information on the issues raised in this briefing contact:
Karen Harvie: kjh@tcyoung.co.uk
031 220 7660
This e-briefing is intended as a guide and does not provide a comprehensive statement of the law. Legal advice should be sought on individual circumstances.