Although the statutory dispute resolution procedures were repealed in 2009, there are still some cases ongoing that were brought before the legislation was scrapped.
In Lawless v Print Plus, Mr Lawless was dismissed for redundancy without prior notice or consultation. He appealed against the decision of the Employment Tribunal (ET) to impose no more than the mandatory 10 per cent uplift in the compensation awarded when there had been a complete failure on the part of his employer to comply with the statutory procedures.
The Employment Appeal Tribunal upheld his claim. In
deciding what is just and equitable in the circumstances, the ET should consider:
" whether the procedures were ignored altogether or applied to some extent;
" whether the failure to comply with the procedures was deliberate or inadvertent; and
" whether there are circumstances that may mitigate the blameworthiness of the failure.
In addition, the size and resources of the employer are capable of being relevant where the ET finds that these factors aggravate or mitigate the culpability and/or
seriousness of the failure.
When dealing with such cases, the ET must give reasons for awarding an uplift of more than 10 per cent, or its reasons for not doing so where the claimant has argued that it would be just and equitable to do so.
The statutory dispute resolution procedure rules that
applied in the above case were replaced in April 2009 by a semi-voluntary Advisory Conciliation and Arbitration
Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the
workplace. However, the Code does not apply to
dismissals due to redundancy or to the non-renewal of fixed term contracts on their expiry.
Under the new rules, a dismissal is not automatically
unfair if the employer fails to comply with the ACAS Code. However, the ET does have the discretion to increase or reduce an award by up to 25 per cent where either side has unreasonably failed to comply with its principles.
Equal Pay
Equal pay for men and women has been in the news again recently after
more than 4,500 female Birmingham City Council employees won their discrimination
claim at the
Employment Tribunal. The women, who work as cleaners, care assistants
and in other more traditionally female jobs, claimed that the Council
had discriminated against them
because they did not qualify for bonuses that were
payable to male workers, such as refuse workers, grave
diggers and gardeners. The payment system meant that some male workers
had earned over £50,000 per year. The Council has since introduced
a new pay and grading scheme.
The Equal Pay Act 1970 makes it unlawful for an employer to discriminate
between men and women in terms of their pay and conditions where they
are doing the same or
similar work, work rated as equivalent or work of equal value.
If an employment contract does not specifically include an equality clause,
it is automatically deemed to do so. If a woman brings a claim for breach
of that equality clause, a comparison must be made between the terms of
the woman's own contract and the terms of some other
person's contract - 'the comparator'. The comparator must be a male employee
doing the same or similar work, work rated as equivalent or work of equal
value.
Equal pay does not only apply to basic salaries but to other terms and
conditions of the employment contract. An
employer who pays male and female staff the same basic salary for comparable
jobs but only pays bonus payments to male workers runs the risk of an
equal pay claim unless there is a genuine reason for the discrepancy unrelated
to the sex of the worker. Likewise, if overtime is only paid with regard
to jobs that are predominantly carried out by men, this practice could
also be open to a challenge under the Equal Pay Act, unless the employer
can prove that it is not discriminatory but arises from a 'real need'
of the
business.
The Equality Act 2010 contains several measures aimed at eradicating inequalities
in pay between men and women. However, the new Government is not bound
by the timetable set by its predecessor for implementation of the Act
and it is likely that parts of it will be subject to amendment before
it becomes law.
Employers are nonetheless advised to carry out a gender pay audit and
to ensure that any discrepancies are
remedied so as to reduce the risk of equal pay claims in the future.
For further information or help, please contact Natalie Bell.