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December 2011 Updates

Marital discrimination

In Dunn v Institute of Cemetry and Crematorium Management, the Employment Appeal Tribunal decided that an employer acted unlawfully in treating an employee less favourably because she was married to a particular man.

The Claimant resigned and claimed constructive unfair dismissal following a dispute over her employment terms. She also claimed sexual discrimination because she felt that she was treated less favourably because she was married to another employee with whom the employer was also in dispute. She was treated as an addition to her husband.

The Employment Appeal Tribunal decided that the law could be construed to protect the Claimant by reason of her status, not only of being married, but also of being married to her (particular) husband.

Equal pay claims a valid defence to them

The Employment Appeal Tribunal decided, in Secretary of State for Justice v Bowling, that, if a difference in pay between a male and a female employee had nothing to do with their gender at the time of their recruitment, this difference could be used to justify an ongoing difference in their pay in later years.

The female Claimant and her male comparator were recruited to do similar work at around the same time. The male comparator was placed two points above the Claimant on an incremental pay scale due to his background and experience when compared and contrasted with hers. By the time of the next pay review, the female Claimant had matched the performance of her male comparator. The Tribunal found that the original reasons for the differential had ceased to be a material factor which provided a valid defence to an equal pay claim brought by the Claimant.

The Employment Appeal Tribunal disagreed. The "catching up" might have undermined the justification for the differential, but it did not undermine its effect. It considered the labelling of the explanation as "historical" to be unhelpful. The real question was whether a cause ceased to operate as an explanation for the differential at the date under consideration. The explanation in this case was not time-limited. The Claimant accordingly lost.

Live in housekeepers and the National Minimum Wage

In Julio & ors v Jose & ors, the Employment Appeal Tribunal has decided the test for determining whether a domestic worker who is treated as a family member is or is not eligible to receive the national minimum wage.

The test is to be approached holistically and there is no one single factor (such as the provision of accommodation, meals, or the sharing of tasks) which is decisive.

Whilst the exemption from the right to the national minimum wage is to be construed narrowly, the entire arrangement and the nature of the relationship are relevant. The general dignity of the worker's situation should also be considered.

The "sharing of tasks" which, amongst other things, fall to be considered, relates to the sharing of tasks carried out by the family as a whole, not the sharing of the work performed by the worker under their contract.

The Employment Appeal Tribunal rejected a literal approach to the requirement that the worker undertakes tasks jointly with the family, or that there should be some equivalence between the tasks done by the family and the worker, noting that every family is different and tasks are often divided up between family members.

Consultation on Employment Tribunal fees

The Ministry of Justice has released details on the proposals to charge fees in Employment Tribunals and the Employment Appeal Tribunal.

In the Employment Tribunal, two options have been put forward as follows:

  • The first option would involve a scale of fees, with the fee to be levied depending on the nature of the claim:
    • Level one would cover claims for unpaid wages and redundancy payments.
    • Level two would cover unfair dismissal claims.
    • Level three would cover discrimination and whistleblowing claims.
    There would be separate issue and hearing fees, with "indicative fees" of between £150 to £250 for issuing a claim and £250 to £1,250 for a hearing.
  • The second option would introduce a fourth level of fees, for claims where the Claimant is seeking an award of over £30,000. In these cases, there would only be a fee to lodge a claim. This would range from £200 to £1,750.

For the Employment Appeal Tribunal, an issue fee of £400 and a hearing fee of £1,200 has been suggested.

The consultation closes on 6 March 2012.

TUPE service provision change

The Employment Appeal Tribunal has decided, in Hunter v McCarrick, that, for there to be a service provision change under TUPE, the activities carried out by different providers before and after the transfer must be carried out for the same client.

The Claimant was employed by a provider of property services. The company which owned the properties became the subject of a winding up petition. The lender on the properties appointed receivers, who assumed control of the properties and appointed a new property services company.

The Employment Appeal Tribunal decided that there could be no service provision change when not only was there a change in contractors, but also of the client.

2012/2013 annual compensation limits

The Department for Business, Innovation and Skills has set the new compensation limits. From 1 February 2012:

  • The limit on a week's pay (to be used, for example, when calculating statutory redundancy pay and an unfair dismissal basic award) will be increased from £400 to £430.
  • The maximum Tribunal unfair dismissal compensatory award will be increased from £68,400 to £72,300.

Ministers of religion as employees

The Court of Appeal has decided, in President of the Methodist Conference v Preston, that an ordained Minister appointed as Minister by the Methodist Church is an employee.


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