Reed Smith Newsletters

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law.

Case law updates

Damages: A claimant, a gynaecologist employed by a private hospital, was awarded over £880,000 (being 10 years of loss) after succeeding with his whistleblowing detriment claim. However, the employer appealed, and the Employment Appeal Tribunal granted the employer’s appeal against the amount, accepting that the tribunal should have taken into account the following factors when making an award for a substantial, career-long loss: the extent to which the claimant’s losses were caused by the detriments; the possibility that claimant’s workplace would close in the future; the possibility that the claimant’s career would not have progressed as claimed; and whether it would be reasonable to expect the claimant to relocate to mitigate his loss. These points may act as useful guidance for employers challenging significant loss of earnings claims. [BMI Healthcare v Shoukrey]

Discrimination – religious beliefs: A former magistrate and non-executive director of a National Health Service (NHS) and social care trust was found not to have been discriminated against, nor his human rights breached, when he was removed from his lay magistrate post and disciplined in his non-executive director role for publicly expressing his Christian views objecting to same-sex couples adopting children. The Court of Appeal held that the action taken against him was not because he was a Christian but because his views prevented him from acting impartially in adoption cases involving same-sex couples and because his comments impacted the trust’s ability to engage with gay service users. [Page v Lord Chancellor; Page v NHS Trust Development Authority]

Equal pay (1): The Supreme Court has ruled that for the purposes of an equal pay claim, the work of mainly male depot distribution workers could be relied upon by the claimants, a group of female retail store workers, for comparison even though they did not work at the same establishment. The Supreme Court ruled that the tribunal was required to apply the ‘North hypothetical’, that is, it should have considered whether the male depot workers would have been employed on broadly similar terms to their current ones if they had worked at the same site as the claimants. The Supreme Court did not interfere with earlier decisions which concluded that they would have. This is the first stage for the claimants in a notoriously complex area of discrimination law; to succeed with their claim, they will need to establish that their work was of ‘equal value’ to the male comparators, and any differential in pay will need to be found to be due to gender and not a material, non-discriminatory reason. [Asda Stores Ltd v Brierley] For more information, please visit the Employment Law Watch blog.

Equal pay (2): The requirement for an employer to disclose documents and information relating to alleged comparators’ contracts, jobs, and pay in a group equal-pay claim was not ‘a fishing expedition’, but a necessary exercise to help the claimants formulate their choice of comparators and address the "informational asymmetry" which arises in these cases (that is, because the employer tends to hold the information necessary for claimants to prove their case). [Tesco Stores Ltd v Element and others]

Holiday pay: An individual who took leave but was not paid for it (because he was treated as self-employed by the company, although later held by the Supreme Court to be a worker) was out of time for bringing a holiday pay claim on the termination of his employment, rather than within three months of when payment would have been due. Although the CJEU in King v. Sash Window Workshop established that a holiday which was not taken because an employer refused to pay for it could be carried forward, the Employment Appeal Tribunal (EAT) held that the CJEU decision did not apply in cases like this one where the leave had in fact been taken, albeit unpaid. We understand the decision is being appealed. [Smith v. Pimlico Plumbers]

National minimum wage: The Supreme Court has found that care workers who are required to sleep at or close to their workplace to provide assistance if needed are only entitled to the national minimum wage during the times that they are “awake for the purposes of working”, a composite term which requires both elements to be met. Time spent asleep, or awake but not for the purposes of working, do not qualify. [Royal Mencap v. Tomlinson-Blake]

Settlement negotiations: An employee who accepted the offer of the transfer of ownership of his company car on termination, but did not reach agreement on overall severance terms, was not then able to claim a breach of contract when the car was not transferred to him. Although the tribunal found that a binding agreement had been reached, the EAT concluded this was an error. The EAT concluded that the offer of the car was not freestanding, but was part of wider settlement discussions and that negotiation of severance agreements would become too complex if a party could unilaterally sever the terms by accepting some but seeking to improve others. Although fact-specific, the case acts as a reminder of the importance of clarity in negotiations and the benefit of settlement agreements to record the agreed terms. [Evergreen Timber Frames v. Harrington]