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John Bowers QC’s Employment Law Blog For February 2020

What will the Government do now

I am sure many employment lawyers are engaged in this parlour game as to what a Government with a massive majority is likely to do to labour law in a Brexit situation (no expletive please!). There are few clear signposts in the statements made thus far. One can however read some runes in what previous Conservative governments have done and what Johnson has said in the past on the subject. These are in my view some of the likely possibilities:

  1. a cap might be put on awards for discrimination as there was in the early days of the law and this could be coupled with a minimum time period for applications, given that the UK would be free of Directives on the subject; there might be some restrictions on the award of aggravated and exemplary damages in this area too;
  2. Johnson has frequently decried the ability of unions to strike in essential public sectors (especially transport when he was Mayor of London) so we may see further restrictions there;
  3. There might be some roll back from EU law on working time and TUPE Regulations;
  4. The law on trade union recognition may be made more favourable to employers.
  5. The anomaly identified below on equal pay might be tightened up.

Beyond that it is anyone’s guess. I do hope that the Government will legislate on the gig economy as Johnson’s predecessor committed to doing.

Equal pay; mirror image?

The whole basis of equal pay law should be comparison of pay between men and women employed at a similar time. The essence is that discrimination should be removed from the payment structure. It can be seen to require that there is a mirror between the terms of the male and the female. Reading Borough Council v James and others [2018] ICR 1839 is a further EAT case however which diverges from this simple enough principle because it states that a claimant is entitled to have the equal pay continued even though the person(s) with whom she is comparing herself was moved to another job so that there is no direct contemporaneous comparison.

The claimants sought equality with a highway operative who was later promoted to a different role and a tractor driver who was subsequently assimilated to a single status scheme at a lower rate of pay. Against the arguments of the employers (in particular that the purpose of the legislation was to achieve equality of pay not higher pay for one particular sex) the employment tribunal held that once the more favourable term on pay had been incorporated into the claimants’ contracts it crystallised and the claimants were entitled to that rate of pay until something else happened which did not include the removal of the males from the same level of pay. The EAT upheld this, commenting that there was “no temporal limitation restricting the continued implication of the equalised term”. This continued until the claimants’ contract was validly varied or terminated.

The case relied on for this central proposition was Sorbie v THF Hotels Ltd [1977] ICR 55 which is in discrimination terms very old although it had been upheld by the Court of Appeal in Sodexo Ltd v Gutridge [2009] ICR 70 (albeit that this was complicated by the TUPE element). When re read the statement by Philips J in Sorbie that the equality clause continues “until something else happens” almost appears to be a throw away line but insofar as it means anything it surely implies that when the comparator moves the mirror image of pay is no longer requisite but this is not what the EAT decided. This leaves the law in an unsatisfactory state.

Car washes

Have you ever driven into a car wash and wondered what the terms and conditions are like for those who work there? Almost invariably the workers are Eastern European migrants. Matthew Taylor the interim Government director of labour market enforcement rightly says “This sector is endemically non-compliant and I cannot see any way to tackle that endemic noncompliance without a national licensing scheme”. At present there is a Responsible Car Wash Scheme which vets car washes but only those operating in the car parks of big supermarkets. The Resolution Foundation think tank has produced a good guide to the issues which arise in car washes and the Church of England has published an app to show whether a particular outlet is complying with proper labour standards. Beyond that there is no real regulation  of a sector where workers are exceptionally vulnerable. This demonstrates again the lack of teeth of enforcement of labour standards in the UK.  

This blog was written by John Bowers QC

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