November 2019 - MLP Law

BBC taken to tribunal over unequal pay

Samira Ahmed, presenter for the BBC, has claimed that the BBC are not complying with the Equality Act 2010, alleging that she is being paid less than her male counterparts, specifically Jeremy Vine.

The Equality Act 2010 sets out the law in relation to equal pay. The Act states that when men and women are doing equal work, they are to receive equal pay.

The BBC is defending the pay disparity by arguing that the two are doing different jobs. Jeremy vine is a “personality” and is more recognised by the public and is presenting a more popular show. They also point out the fact that Ahmed’s male predecessor was paid the same amount as she is currently.

This is not the first time that the BBC has been placed under scrutiny for unequal pay. Carrie Gracie, former China editor, resigned from her role in January 2018 for the same reason. In 2017 it was also found that presenter Chris Evans was being paid over £2 million, compared to the highest paid female presenter, Claudia Winkleman, who was earning only a quarter of that earnt by Evans.

At the start of January 2018, six male BBC presenters agreed to pay cuts in order to help balance out the unequal pay,

The real question is, however, why are they being paid unequally in the first place? Is the work they’re doing really that dissimilar?

If you have any questions regarding unequal pay as an employee, please contact our Employment Team on 0161 926 1508, or follow our employment law-specific Twitter account @HRHeroUK.

Battle of the forms- How to ensure it’s your terms that prevail

A “Battle of the forms” arises when two businesses are negotiating the terms of a contract, and each party wants to contract on the basis of their own terms and conditions, thus causing a conflict between the parties. It is a common occurrence where exchanging orders, acceptances, confirmations, emails that each party wants (and expects) their terms to apply.  After all, you’ve spent time and money getting your terms right to reflect how you want to do business and the risks you’re willing to accept.

Last Shot? As far back as 1968, in the case of Butler Machine Tool v Ex-O Corporation [1979] 1 WLR 401 CA, it was decided that in such cases the Court would apply the ‘last shot principle’.

Generally, the battle of the forms is ‘won’ by the party who fire the ‘last shot’ i.e. the last party to put forward its terms and conditions, that were not expressly rejected by the recipient party before the contract was concluded.

Win the battle.

It’s not pot luck.  Businesses can take steps to increase their chances of winning a battle of the forms and to ensure it is their terms that are enforceable. The best way to do this is to:

Provide the other party with your terms and conditions as early on in the transaction as possible.

Include them with either your offer or acceptance.

Add a signature line to bind the contracting party once it has been signed, to remove the possibility of a battle of the forms dispute.

Train your sales team on the dangers and pitfalls for the unwary and the correct process to follow

Review your email footers and how you incorporate your terms into your agreements (in case you didn’t know, only having them on the back of your invoice isn’t good enough)

If you have found yourself in a battle of the forms dispute or would like to review your terms and conditions and incorporation processes, please contact the Corporate and Commercial team by emailing comercial@mlplaw.co.uk or calling 0161 926 9969.

Footballer appealing decision to dismiss him over a car crash which left him injured – while his two colleagues were fined.

Richard Keogh, a 33-year-old footballer, has had his contract terminated by Derby Football club. The dismissal for gross misconduct happened following an incident in which Keogh’s two team members crashed the cars they were driving, leaving Keogh with a knee injury which left him unable to play for at least a year. The two team members were convicted for driving whilst over the legal alcohol limit.

Regarding the dismissal, the club stated that it does not “tolerate any of its players or staff behaving in a manner which puts themselves, their colleagues, and members of the general public at risk.” Yet, the two younger teammates of Keogh, who were uninjured by the accident, have kept their jobs.

Could Keogh have an unfair dismissal claim?

Unfair Dismissal is defined in Section 98 of Employment Rights Act 1996. To have the right to an unfair dismissal claim you have to have been employed by the same employer for two years. Since Keogh has played for Derby since 2012, there is the potential that he could bring a claim.

There are five potentially fair reasons for dismissal including misconduct. However, even if Keogh’s unfair dismissal claim stood up in tribunal, given that his weekly wage was £24,000 and the maximum award for a successful unfair dismissal claim is £86,444, it might not be likely that Keogh would want to face a lengthy tribunal process to receive a maximum of three weeks’ wages compensation.

Could Keogh have a discrimination claim?

Under the Equality Act 2010 age is a ‘protected characteristic’. Keogh’s team members, who were also involved in the accident, were treated less harshly and have not lost their jobs. Derby have claimed that Keogh’s treatment differed from that of his two considerably younger teammates because he held a level of responsibility as captain. It might be possible that this argument is still discriminatory, since younger players are less likely to have achieved captain status.

The decision to dismiss Keogh was made on 31 October 2019 and he will have three months from this date to submit a discrimination claim to the Employment Tribunal. He is currently in the process of internally appealing the decision to dismiss him, and it would be interesting to know if he cites unfair dismissal or discrimination as a point of appeal.

If you think you may have been unfairly dismissed or discriminated against, or if you need help following a fair disciplinary process, please contact our team on 0161 926 1592. To keep up to date with the latest employment law news please follow our twitter account @HRHeroUK.

Cricket Australia has introduced maternity leave for the first time – how do your maternity rights compare?

Prior to the new maternity policy, which has been three years in the making, the chief executive of the Australian Cricketers’ Association said that a woman cricketer becoming pregnant usually signalled the end of her career. The ‘game changing’ move for Australia’s cricket team has sparked worldwide praise from athletes; offering the players up to 12 months of paid parental leave, a contract extension for the following year, plus benefits and support until the child is four years old. The policy is innovative, not just in the sporting world but everywhere.

 

As a result, the new policy has been described as world-leading. Such a generous policy may lead you to ask – how do your maternity rights compare? Of course, policies vary from company to company, with some employers far exceeding the minimum required of them by law.

 

However, as recently as 2017 the TUC reported that the UK ranked 22 out of 24 European countries that offer statutory maternity leave. In the UK, for the first six weeks after birth, women must receive 90% of their previous pay, but that drops to £140 a week, or continues at 90% if that is lower, for the next 33 weeks. Tax and national insurance are deducted. There is no statutory pay beyond 33 weeks.

 

Like Australia’s cricketers, British women are entitled to 52 weeks of Statutory Maternity Leave, which is made up of Ordinary Maternity Leave for the first 26 weeks after birth and Additional Maternity for the last 26 weeks, although you must give your employer 8 weeks’ notice if you want to change your return to work date.

 

Perhaps the best part of Australia’s policy is the guaranteed contract extension for one year after returning from maternity leave. This is where maternity rights differ in the UK. Dismissal can be lawful during pregnancy or maternity, unless due to the pregnancy, pregnancy related sickness, birth or maternity it is automatically an unfair dismissal. There are further differences in connection with redundancy. Pregnant women who have not yet started maternity leave have no special protection in a redundancy situation, although the redundancy selection criteria must not take into account reasons connected to pregnancy or maternity leave.

 

Navigating the complexities of maternity leave and pay entitlement can be a minefield. If you have any questions, or if you’d like help reviewing your company’s maternity entitlement policy more similar to that given to Australia’s cricket team, please get in touch with our Employment Law team on 0161 926 1592. You can also follow our Employment Law specific Twitter accounts for all the latest industry news by searching @HRHeroUK.

Labour Party pledges on Employment Law

Today the Labour party has published its highly anticipated manifesto in advance of the general election on 12 December 2019. Within the manifesto from page 59 onwards the Labour party have included several policies on employment law and industrial relations that they intend to introduce if Jeremy Corbyn is voted into Number 10.

Here are just some of the pledges on Employment Law that have been included:

  • Introducing a living wage of £10 per hour for all workers aged 16 and over. The current minimum wage for people aged 25 and over is £8.21 while for 16-17 year olds it is £4.35.
  • Bringing in additional rights for the self-employed to include free child-care, collective income protection insurance schemes and better access to mortgages and pensions.
  • Setting up a Ministry for Employment Rights, it is not clear at this stage exactly what the role of the ministry will be.
  • Reducing the average working hours to 32 hours per week within ten years. This is the equivalent of a 4-day week and has been a large focus for the Labour party during campaigning.
  • Give everyone full employment rights from day one on the job. Whilst the manifesto does not go into detail about what is meant by ‘full employment rights’, it is likely that this is referring to rights to bring a claim under unfair dismissal. Currently, employees need 2 years’ service to bring an unfair dismissal claim and to be entitled to other statutory protections.
  • Introducing 10 days of paid leave for survivors of domestic abuse.
  • Banning zero hour contracts. There has not been a lot of information given on this policy but it is clear that it would include paying employees on zero hour contracts for cancelled shifts.
  • A requirement for breaks during shifts to be paid.
  • Extending statutory maternity pay from 9 months to 12 months.
  • A requirement for all large employers to have flexible working and menopause policies. A lot of employers already have a flexible working policy in place but the Labour party pledges to make this a requirement.
  • Introducing four new bank holidays.
  • Banning unpaid internships.
  • Strengthening trade union rights by allowing unions to use electronic balloting and by repealing the Trade Union Act 2016.
  • Keeping employment tribunals free for all. Fees were previously scrapped on 26 July 2017 and the Labour party have no plans to re-introduce fees.
  • A requirement for all workplaces with at least 50 employees to obtain government certification on gender equality or face fines.
  • Extending pay-gap reporting to include BAME (Black, Asian and minority ethnic) groups.

This is not an extensive list and there are additional policies in relation to Employment Law that have been referenced in the Labour Party manifesto that can be found on the Labour Party website.

If you want to have your say in the upcoming general election, then please remember to register to vote by 11:59pm on 26 November 2019.

If you have any questions in relation to your own employment rights or if you are an employer who deals with employees then please contact our Employment Team on 0161 926 1508, or follow our employment law-specific Twitter account @HRHeroUK.

Pochettino shown the red card by Spurs: the law on unfair dismissal

On Wednesday evening Mauricio Pochettino was sacked as Tottenham’s manager after five years in charge of the club. The sacking was criticised by many football pundits as Pochettino had successfully led Spurs to top-four finishes in four of his five seasons in charge, as well as their first Champions League final in the 2018/19 campaign.

However, irrespective of whether you agree or disagree with the sacking, the questions we want to consider are: was Pochettino’s dismissal legally ‘fair’, could he bring a claim in the Employment Tribunal for unfair dismissal and if so, would it be worthwhile?

Could Pochettino bring a claim for unfair dismissal? 

In order to be eligible to make a claim for unfair dismissal in England & Wales, you must:

  • have been dismissed;
  • be an employee;
  • have been employed by a minimum of 2 years;
  • bring the claim within 3 months of your dismissal; and
  • not be in an excluded category.

Pochettino was employed by Tottenham Hotspurs for a period exceeding 2 years and his dismissal from the club has been officially confirmed by Spurs, who have in fact already found a replacement (Jose Mourinho). This means that yes, if Pochettino bought the claim within the next 3 months and provided that he was not in an excluded category, then he would be able to make a claim for unfair dismissal.

Would he be successful in a claim?

The honest answer to this is that we have no idea. Unfortunately, here at MLP Law we haven’t been given the inside scoop on what went down behind the terraces at the Tottenham Hotspur stadium. However, what we can say is that when deciding whether a dismissal is fair, the Employment Tribunal will consider the following two factors:

  • Whether the employee was sacked for one of the five potentially fair reasons which are capability, conduct, redundancy, statutory illegality (not legally allowed to be employed or some other substantial reason that could justify the dismissal; and
  • Whether the dismissal was fair in all the circumstances (this would involve looking at the process that was followed leading up to the dismissal).

So why not bring a claim?

Let’s say for arguments sake that Pochettino did bring a claim to the Employment Tribunal and that Spurs couldn’t convince the Tribunal that the dismissal of Pochettino was fair in all the circumstances and lost. What would Pochettino be entitled to in terms of compensation?

The level of compensation awarded for unfair dismissal in the Tribunal if you were dismissed on or after 6 April 2019 is limited to one year’s gross pay or £83,682 (whichever is the lowest). Considering Pochettino was allegedly earning an annual gross salary of £7.5million, you can see why he might not think a claim is very worthwhile.

This is one of the key reasons as to why we rarely see football clubs being taken to the Employment Tribunal. With the average premier league footballer earning as much as £2.6million gross per annum and the average manager earning as much as £5million gross per annum, there isn’t the same financial incentive for them to make a claim as there is in the majority of cases. Whether there should be a distinct claims process available for higher earners including football managers and footballers to follow in cases or unfair dismissal is potentially something to be considered. However, as the law currently stands, we are unlikely to see Pochettino lodging a claim at any point in the near future.

If you have any questions as an employer in relation unfair dismissal or if you think that you might have been unfairly dismissed, then please contact our Employment Team on 0161 926 1508, or follow our employment law-specific Twitter account @HRHeroUK.