Employment Update: August 2024

Landmark equal pay win for Next retail staff: The Employment Tribunal (ET) has found that Next’s female retail staff were unlawfully paid less than employees in the company’s warehouses, who were predominantly male. The claimants successfully argued that their retail roles were of “equal value” to warehouse roles and that, in the absence of any objective justification for differences in pay, they should be paid equally. Next argued that the differences were justifiable by reference to legitimate and non-discriminatory factors, including that market conditions forced it to pay warehouse workers at higher rates to recruit effectively and ensure the quality of its workforce. Whilst the ET accepted that this may have been Next’s genuine reason for paying warehouse workers enhanced rates, it did not accept that this justified retail staff being paid at lower rates (i.e. Next could have also raised pay for its retail staff). Although this would have increased Next’s costs, cost-saving is not by itself a legitimate justification for paying male and female employees differently for doing equal work. Whilst this is an ET decision (which Next intends to appeal) and is not yet binding, it is a stark example of the significant consequences of breaching equal pay laws, with Next now facing a total bill of up to £30 million to compensate over 3,500 employees for historic differences in pay.

Within sport, equal pay between male and female athletes continues to be a hotly-debated topic, but this decision will be more relevant to non-playing staff who may work in roles predominantly occupied by either female or male staff. Where this is the case, employers would be wise to assess the extent to which those roles could be considered of equal value and whether any pay differences can be objectively justified.

No reduction to compensation where claimants contributed to their own dismissal: Whistleblowers who were found to have been unfairly dismissed because of their protected disclosures did not have their compensation reduced, even where it was accepted that their own conduct (specifically, social media posts which violated their employer’s policies) had also contributed to their dismissal. The EAT’s judgment in this case (Notaro Homes Ltd v Keirle and Others) is a harsh reminder to employers that there is no legal requirement for a tribunal to reduce an award, even where an employee has been partly responsible for their own termination.

AC Milan guarantees contracts for pregnant players: Following FIFA’s recent launch of new standards to protect pregnant female footballers, AC Milan has become the first European club to guarantee contract renewals for players who become pregnant in the final year of their contract, committing to awarding players one-year extensions on the same terms as their existing deals. The policy shows how a club can help to reassure its players that their career will be protected during any maternity-related absence. However, where an athlete in an individual sport is not subject to a playing contract in the same way as a footballer, sports governing bodies may need to consider other ways to protect an athlete’s career and progression (e.g. the protection of rankings or relaxed qualification criteria for tournaments). Our article here explores this in more detail.

‘Associative’ indirect discrimination: The Employment Appeal Tribunal (EAT) has upheld a claim by British Airways employees that certain scheduling changes were indirectly discriminatory on grounds of race and sex because they disproportionately disadvantaged non-British nationals (who were more likely to commute from abroad) and women (who were more likely to have caring responsibilities). Whilst indirect discrimination claims are nothing new, the interesting point here is that the group of claimants also included employees who did not actually share the same protected characteristics as the other claimants, namely: (a) a British national who lived abroad; and (b) a man who was a carer. Finding in their favour, the EAT confirmed that a person can still claim indirect discrimination where they lack the relevant protected characteristic, provided that they suffered the “same disadvantage” as the group with that characteristic. This principle, which is now enshrined in the Equality Act 2010, means that employers will need to think more broadly about any adverse impacts that their policies may have, not only on people with specific protected characteristics, but also on others who may suffer the same disadvantages.

Claimant’s belief in English nationalism not a protected belief: The EAT has found that an employee was not unfairly dismissed and discriminated against because of a political belief in English nationalism (Thomas v Surrey and Borders Partnership NHS Foundation Trust). The employee’s belief failed the well-established tests to qualify for protection under equality laws, in particular because the employee’s anti-Islamic views were not “worthy of respect in a democratic society”, were “incompatible with human dignity” and “in conflict with the fundamental rights of others.” This is the latest in a long-line of cases to consider what constitutes a protected belief under equality laws. Whilst each case will turn on its specific facts, the EAT’s decision here may be informative in future cases given the current political climate and recent events in the UK.

If you have any questions, or if you would like to discuss an employment issue, please do get in touch.