Case watch

On this page you will find key cases and sources of information on them.

R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)

In July 2017 the UK’s Supreme Court quashed the current system of fees for employment tribunal claims on the grounds that it is unlawful.

The Supreme Court decided that the government acted outside its powers when it introduced fees at current levels, because the fees effectively prevent access to justice and, in addition, they discriminate indirectly against women.

As a result of the judgment no further fees can be charged by HM Courts and Tribunals Service in employment cases unless and until a replacement scheme is introduced.

In the meantime:

  • New claims can be lodged without the claimant paying a fee; and,
  • Existing claims can proceed to a hearing without the claimant having to pay a hearing fee;

For those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.

In October the Government announced the rolling out of a refunding scheme, initially through a 4 week trial process. Participants are being contacted directly by the Ministry of Justice, inviting them to take part. Employers who have paid out fees to claimants, as well as claimants, will be able to seek reimbursement and those reimbursed can also expect to recover interest on their fee payments at 0.5 per cent.

Once the pilot is concluded, the Government expects to issue guidance, including details of how the scheme can be accessed.. Reimbursement will not be automatic and will be by application. In the meantime, anyone who wishes to register an interest in applying for a refund can do so by emailing ethelpwithfees@hmcts.gsi.gov.uk  

The government is also taking steps to reinstate all claims that had been struck out on the basis of non-payment of fees, and the Presidents of the Employment Tribunals have issued a Presidential Case Management Order to this effect. The Order says reinstatement ‘will be dealt with administratively and almost certainly without need for judicial intervention or judicial decision.’

The government is likely to want to put in place a replacement fees scheme, but what this might look like remains to be seen. What is clear is that the government will need to carry out a much more careful analysis of the effects of any new proposals, particularly on claimants, and on women in general, and this suggests that it could be many months before a replacement system of fees is put in place.

You can read the Supreme Court Decision here

Glasgow City Council v Unison and Others

This important case, which was brought on behalf of around 6,000 claimants, involves pay protection introduced over a decade ago following the implementation of a job evaluation scheme which had been introduced in response to a wave of equal pay awards.

The claimants argued that the pay protection scheme which accompanied the introduction of the new pay system had actually had the effect of discriminating against women by excluding them.

They argued that the loss of bonuses for male-dominated groups following the implementation of the job evaluation scheme had resulted in those groups being given the benefit of pay protection (“red-circling”), but as the bonuses had favoured male groups, the way in which the pay protection scheme operated was fundamentally discriminatory against women.

The Court of Session upheld an earlier Employment Appeal Tribunal decision that the pay protection scheme was discriminatory against women.

You can read the full decision here

 

Essop and others  v Home Office (UK Border Agency); Naeem  v Secretary of State for Justice [2017] UKSC 27

As both these cases raise questions about the interpretation of indirect discrimination, the Supreme Court heard them together; however, as only Naeem refers to equal pay, albeit (and unusually) on grounds of religion or belief, only Naeem is considered here.

Mr Naeem is an imam who works as a chaplain in the Prison Service. Before 2002, Muslim chaplains were engaged on a sessional basis only, because it was believed that there were too few Muslim prisoners to justify employing them on a salaried basis, as some Christian chaplains were. Mr Naeem worked on a sessional basis from 2001, but in 2004 became a salaried employee. At this date the pay scheme for chaplains incorporated pay progression over time. The average length of service of Christian chaplains was longer, which led to a higher average basic pay. Mr Naeem argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay in a post where length of service served no useful purpose as a reflection of ability or experience.

Mr Naeem’s claim was rejected by the Employment Tribunal which found that the indirect discrimination was justified.

The Employment Appeal Tribunal held that the scheme was not indirectly discriminatory at all because chaplains employed before 2002 should be excluded from the comparison between the two groups.

The Court of Appeal held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains: it was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic of race or religion.

The Supreme Court held that in Mr Naeem’s case the reason why the pay scale puts Muslim chaplains at a disadvantage is known. It is because they have on average shorter lengths of service than Christian chaplains. The Supreme Court held that the Court of Appeal was wrong to require the reason to relate to the protected characteristic, in this instance, of religion or belief. The pool of comparators comprises all workers affected by the provision, criterion or practice in question. In this case the incremental pay structure affected all chaplains in the Prison Service and this did put the Muslim chaplains at a disadvantage compared with the Christians.

As regards justification, it was not in dispute that the pay scheme had a legitimate aim but the means adopted needed to be proportionate. The Employment Tribunal had found as a fact that six years was the most required for newly appointed chaplains to have the skills and experience for reward at the top of the scale, but that in the circumstances the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course. The Supreme Court held that this was the correct test, and that it was not open to the appeal courts to disturb that finding, even if there were alternative means to reduce the disadvantage more quickly which could have been considered.

The Court therefore dismissed Mr Naeem’s appeal. However, in doing so, the Court noted that while the Employment Tribunal had adopted the “no more than necessary” test of proportionality from the Homer case, and could scarcely be criticised by the Supreme Court for doing so, the case was concerned with a system in transition. The question was thus not whether the original pay scheme could be justified, but whether the steps being taken to move towards the new system were proportionate. Where part of the aim is to move towards a system which will reduce or even eliminate the disadvantage suffered by a group sharing a protected characteristic, it is necessary to consider whether there are other ways of proceeding which would eliminate or reduce the disadvantage more quickly. Otherwise it cannot be said that the means used are “no more than necessary” to meet the employer’s need for an orderly transition.

The Supreme Court noted that this is a particular and perhaps unusual category of case in which the burden of proof is on the respondent, but where it is clearly incumbent upon the claimant to challenge the assertion that there was nothing else the employer could do. Where alternative means are suggested or are obvious, it is incumbent upon the Tribunal to consider them. The Supreme Court said that this was a question of fact, not of law, and if it was not fully explored before the Employment Tribunal it is not for appeal courts to do so.

You can read the full decision here.

 

Paczkowska and Golygowska v Avoca Handweavers (NI) Ltd

Two women working in a Belfast café have won an equal pay claim against their employer, Avoca Handweavers (NI) Ltd with the support of the Equality Commission.

Paulina Paczkowska and Agnieszka Anna Golygowska both worked as floor staff/baristas in the Avoca Café. By 2015, Paulina was earning £6.79 per hour and Agnieszka £6.98 per hour, while their male colleague was earning £8.46.

Both women tried to resolve the matter without going to court by taking out a grievance against the company, but their grievances were dismissed; they lodged claims with the Tribunal and their trade union referred them to the Northern Ireland Equality Commission for help.

Avoca conceded that it did not have a structured pay scheme within the business. The firm also admitted that the three employees were all doing like work and accepted that there was a disparity in pay between the man and the women but claimed that material factors other than the sex of the staff, including the fact that the comparator had asked for more money,  were the reason for the disparity.

The Tribunal ruled that the factors cited by Avoca could not explain the difference in the pay rates and awarded the women equal pay to that paid to their male colleague from May 2013.

You can read the full decision here.

McCloud and Others V Ministry of Justice and the Lord Chancellor

In a case which may have far-reaching ramifications, on the 16th January 2016, the Employment Tribunal upheld the claims of over 200 judges for unlawful age, race and sex discrimination and equal pay against the Lord Chancellor and the Ministry of Justice in relation to changes made to their pension entitlements.

The Tribunal held that the Lord Chancellor and the Ministry of Justice had discriminated against younger judges, a significant number of whom were female and/or from minority ethnic groups, by requiring them to leave the Judicial Pension Scheme in April 2015 whilst allowing older judges to remain in that Scheme, and that this discrimination could not be justified.

The Tribunal found that the changes caused younger judges to suffer a disproportionate loss to their pensions purely because they were younger.

You can find the Tribunal decision here.

Brierley v Asda stores Ltd

In August 2017 the Employment Appeal Tribunal confirmed the decision of the employment tribunal that employees at Asda stores may use employees at Asda distribution depots as comparators in their claims of equal pay for work of equal value.

The Employment Tribunal had rejected Asda’s argument that the different locations were a bar to the claim and found that Asda’s board acted as a single source for the pay of both applicants and comparators.

It is estimated that over 7000 applicants are involved.

Asda has indicated that it will seek permission to appeal the EAT decision to the Court of Appeal.

 

Last updated 14th November 2017