Tuesday 17 May 2011

Equal Pay

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Beddoes v Birmingham City Council, which is authority for the propositions that in determining if Claimants (here school staff but Council employees) are in the 'same employment' as comparators (other Council staff) for the purposes of the EPA, the fact that school governors - who are not the employer - set the Claimants' terms and conditions (albeit on Council recommendations) did not mean that the Claimants were not under a 'single source' of terms and conditions with other Council staff, meaning Council staff were potential comparators.

The EAT said that 'the same employment' should be construed naturally, but observed that with sufficient evidence of departures by governors from Council recommendations, the outcome might differ. The EAT suggested that a material factor defence might arise for an employer in such situations.

In mass Equal Pay litigation, with mistakes in job titles being "inevitable", Tribunals should be very ready to accept amendments to correct misdescriptions of job titles, subject to considerations of jurisdiction and prejudice to the employer.

A failure to properly state the basis of a grievance under the (now-repealed) Modified Grievance Procedure will not mean a claim is barred under S32 EA 2002 if a Collective Grievance under Regulation 9 of the 2004 Dispute Resolution Regulations covers that grievance. The EAT set a low threshold for complying with the Collective Grievance provisions by a Union or appropriate representative, allowing for compliance by 'happy accident'.

The EAT also held that agreeing to follow the Modified Procedure is binding, and a Claimant cannot retract agreement and revert to the Standard Procedure to get round a S32 bar if a grievance under the Modified Procedure fails to do so.


Fiona Coombe said...

This case is of interest to me in seeking to interpret the Agency Workers Regulations 2010, specifically the issue of who is regarded as the 'hirer' in the context of agency workers supplied to maintained schools. BIS recently removed a statement from their guidance on the Regulations that the LA was the hirer saying DFE is due to publish guidance for the education sector. I tend towards the view that as a governing body is a legal entity and the recruitment of agency staff is not specifically covered by the Schools Staffing Regulations they will be the hirer having the contractual relationship with the agency. I would be interested in anyone's views on whether it is the school or the LA which is the hirer under the AWR

Sam Burnett said...

BIS (via the Dept for Education) has recently (23 Sept 11) published guidance which assists on the question of who is a hirer in a maintained school - see http://www.education.gov.uk/schools/careers/traininganddevelopment/a0077106/supply-teachers. The guidance states:
"In foundation schools, voluntary aided schools and foundation special schools, the “hirer” is the school’s governing body, being the legal entity to whom the worker is supplied and who is responsible for the supervision and direction of that worker.

In community schools, voluntary controlled schools, community special schools and maintained nursery schools, the “hirer” is either the local authority or the school’s governing body. It is a matter of fact to be determined in each case and depends on to whom the worker is supplied and who supervises and directs that person’s work."