In this
update:
Equal pay claims –
time limits following TUPE transfer
The
Court of Appeal has confirmed that the time
limit for equal pay claims which relate to a
period prior to a transfer under the Transfer of
Undertakings (Protection of Employment)
Regulations (TUPE) starts to run from the date
of the transfer.
The
Equal Pay Act 1970 provides for equal pay
between men and women by implying an equality
clause into all contracts of employment. An
equal pay claim should be brought on or before
"the qualifying date", which is usually six
months after the last day on which the woman was
"employed in the employment".
In
Gutridge and others v Sodexo Ltd and
another, the female claimants were all
employed by North Tees and Hartlepool NHS Trust
(the Trust) and worked at Hartlepool General
Hospital. On 1 July 2001, they were all
transferred under TUPE to Sodexo Limited
(Sodexo). In December 2006, the claimants
brought equal pay claims to recover six years
arrears of pay and sought to compare themselves
with male employees who, before and after 1 July
2001, still worked at Hartlepool General
Hospital.
The
women argued that the equality clause in their
contracts meant that their contracts were
modified so as to entitle them to the higher
rate of pay received by their male comparators.
The Trust was in breach by continuing to pay the
women at a lower rate. When the women's
contracts transferred to Sodexo under TUPE,
Sodexo then became liable to pay the women at a
higher rate and were also liable for the Trust's
pre-transfer breach, which transferred under
TUPE. The women also contended that the effect
of TUPE was to deem their employment continuous
and as they were still in "the employment", time
for bringing the claim had not yet begun. Sodexo
argued that the claims were time-barred. It
argued that time should have run from 1 July
2001, when the women ceased to be employed by
the Trust, so the time for bringing a claim had
expired.
After
examining previous case law relating to this
point, the majority of the Court of Appeal
confirmed that equal pay claims relating to the
pre-transfer period must be brought against the
transferee within six months of the date of the
transfer. The time limit for equal pay claims
relating to the continuing liability of the
transferee post-transfer is six months after the
end of employment with the transferee.
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Default retirement
age to be reviewed in 2010
The
Government has published a strategy document, "Building a society for
all ages", announcing that its review of the
default retirement age of 65, which had
originally been planned for 2011, will be
brought forward to 2010.
The
default retirement age of 65 is contained in the
Employment Equality (Age) Regulations 2006,
which provide that an employer may fairly
dismiss employees who are over the age of 65 by
reason of retirement. The default retirement age
is currently subject to challenge by the
National Council for Ageing (the "Heyday"
challenge).
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Tribunals pass on
details of whistleblowing claims to
regulators
The Government has
launched a consultation on
proposals to enable employment tribunals to pass
on details about whistleblowing cases to
industry regulators. The aim is to allow the
underlying allegations (e.g. fraud or health and
safety issues) to be investigated, where
appropriate, by the relevant
regulator.
The
process is intended to enable employment
tribunals to send copies of the claim form, or
extracts from it, directly to the relevant
regulator. The regulator would then assess the
information and investigate it if appropriate,
as part of their normal regulatory duties,
procedures and processes. There would be a box
on the claim form for the claimant to indicate
their express consent to the tribunal passing a
copy of the form to the regulator. The process
would not involve any unsubstantiated
allegations against companies being made public
by the employment tribunal, with information
only being shared with the relevant
regulator.
The
proposed new powers are intended to apply to
cases brought on or after 6 April 2010.
Consultation closes on 2 October 2009.
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the top
A quarter of British workers too
scared to take holiday
Almost
1 in 4 British workers are too scared to take
their full holiday allowance this year, because
of concerns about job security.
A
study commissioned by www.HireScores.com reveals
that almost 25% of British workers will not take
their full holiday entitlement this year, most
of whom will sacrifice their vacation to find
favour with their bosses and keep their job.
In
a study of over 1,000 employees in Britain, it
was also revealed that of the people who do
always take their full holiday allowance, more
than a third check work related e-mails or call
the office whilst they are on a break. The most
common reason for workers keeping in touch with
the office whilst on their holidays was to prove
to their bosses that they were passionate about
their job, as they hoped this would give them
better job security.
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Motherhood "devastates" women's
pay and prospects
Motherhood can
have a devastating impact on a woman's earnings,
according to a report released by The Fawcett
Society. The report, entitled 'Not having it all: How
motherhood reduces women's pay and employment
prospects' is a new survey of existing
research, drawing together the most recent data
from academic and government sources.
The
report finds that:
-
before
becoming parents, men and women are equally
likely to be employed but childbirth marks the
start of a great divide which continues even
after children have left home. Just over half
(57%) of mothers with children under 5 are in
paid work compared to nine tenths of
fathers.
-
even
those women working full time experience a pay
penalty. Partnered women without dependent
children earn 9% less than men on average but
for mothers with two children working full time
the pay gap is 21.6%.
The
Fawcett Society has called for new policy
responses to reduce the impact of motherhood on
a woman's earnings. Four areas are identified as
priorities:
Provide
mothers with the support they need to return to
jobs at their previous skills levels
Enforce
and extend the law to protect pregnant women and
women on maternity leave
Create
substantially more part-time work in higher paid
occupations
Tackle
the low pay that exists in sectors primarily
employing women
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