Labour & European Law Review (LELR) Magazine picture

Labour & European Law Review

12th January 2012 - LELR Weekly Issue 251

 

 

Work your proper hours day

According to research published last week by the TUC, the total amount of unpaid overtime worked last year was 1,968 million hours.

The report calculates that this is worth a record £29.2 billion to the UK economy - that equates roughly to a million extra full-time jobs.

The TUC has calculated that the date by which the average person who regularly does unpaid overtime starts earning for themselves is February 24 2012. This is the TUC's “Work Your Proper Hours Day” (WYPHD). Obviously this varies depending on the amount of time the person works over and above their contracted hours.

The TUC will call on employers to mark “Work Your Proper Hours Day” by thanking staff for the extra hours they're putting in.

An analysis of official figures shows that 5.3 million workers put in an average of 7.2 hours of unpaid overtime per week last year, worth around £5,300 a year per person.

Whilst reducing the amount of unpaid overtime would not translate precisely into extra jobs, the TUC is concerned that persistent and excessive hours are holding back job creation.

Some employers are forcing staff to work extremely long hours that damage their health, when taking on extra employees would be far more productive and provide much needed jobs, says the TUC.

Workers in London (26.9 per cent) and the South East (25 per cent) are the most likely to work unpaid overtime. Workers in the West Midlands and the North East have experienced the sharpest rise in the likelihood of doing so over the last year, according to the TUC analysis.

The number of people working extra hours for no pay has increased by more than a million since records began in 1992, when 4.2 million people regularly did unpaid overtime, to 5.3 million people in 2011.

The proportion of workers doing unpaid overtime has also increased slightly, from 19.7 per cent in 1992 to 21.1 per cent in 2011.

For more information, visit the Worksmart website

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Pension opt-out

It is well established in law that it is indirectly discriminatory to exclude workers from a pension scheme because they work part-time. The Court of Appeal has now said in Copple and ors v Littlewoods plc and ors that part-time women employees who would not have exercised the choice to join were not entitled to retrospective membership of the scheme because they had not lost anything.

Basic facts

Hundreds of women employees, who had been denied the right to join Littlewoods’ pension scheme between 1976 and 1995 because they worked part-time, claimed a breach of equal pay law. The company conceded that during the time they were not allowed to join the scheme, they were the subject of indirect discrimination which could not be justified.

However, having opened it up to part-timers, the company refused to give retrospective pension rights for the “closed periods” to anyone who did not join within three months of being eligible to do so.

Instead, it took the view that if a woman had failed to join within that three-month window, it would assume that she would not have joined it earlier even if eligible. As the woman had suffered no loss, she was not entitled to a remedy (known as the opt-out principle).

The part-timers claimed this denied them an effective remedy and was incompatible with EU law. They asked the Tribunal for a declaration recognising their right to be admitted to the pension scheme, whether they would have chosen to join or not.

Tribunal and EAT decisions

The Tribunal rejected their arguments, saying that since the women who had opted out had not suffered a detriment, the equality principle had not been breached.

It also refused to make a retrospective declaration of entitlement, as this would put the claimants in a better position than male full-timers who had chosen not to join once they were eligible to do so.

As to whether they fell into the category of opt-out workers, it found that some of the women would have joined the pension scheme, had they had the chance to do so. In the other cases, it found that they would not and therefore were not entitled to a declaration.

The EAT held that the opt-out principle was wholly compatible with EU law and agreed that, in the circumstances, it was not appropriate to grant the remedy of a declaration of entitlement to someone who had not suffered a loss.

Court of Appeal decision

The Court said that there had been a breach of the equality clause as the women had been denied the right to choose whether to join the scheme, even though they had not suffered a loss. The loss of the right to choose was, in itself, a detriment.

However, although it had been breached, those women who could not establish that they would have chosen to join the scheme were not entitled to a declaration of entitlement to retrospective membership of the scheme because they had not lost anything.

The Court also held that the opt-out principle was compatible with EU law. The equality clause removed the barrier preventing them from joining the scheme and was an effective remedy. However, conferring the right to access did not oblige them to join the scheme.

Nor did it give them the right to join with retrospective effect as that would be disproportionate to their loss and would put them in a better position than full-timers, except for a “relatively short period” when the scheme was open to them but before they decided to join.

Comment

It is unlikely that this will have wider implications outside the part-time pension litigation. It is relatively uncontroversial. Equal pay and sex discrimination law cannot put the claimant in a better position than she would have been in, had she had the rights from the start. There is no provision for compensation for non-financial loss or penalty damages.

 

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Equal pay common to all

To succeed in an equal pay claim, claimants have to show (among other things) that they are “in the same employment” - either that they work at the same establishment or are on common terms and conditions - to their comparators. In City of Edinburgh v Wilkinson and ors, the Scottish Court of Session said that claimants were “in the same employment” if the Council was the source of their terms and conditions.

The claimants’ union, UNISON, instructed Thompsons to act on their behalf.

Basic facts

A group of 52 women working in schools, libraries and social work (historically white collar jobs) brought equal pay claims with men employed in manual jobs such as refuse collectors, gardeners, gravediggers and roadworkers.

The women argued that as they were doing work of equal value to that of the men in the same establishment, they were entitled to equal pay. Alternatively, they argued that their comparators would have worked under common terms and conditions to them, if they had worked at the same establishment as them.

Tribunal and EAT decisions

The Tribunal decided that the women and their comparators were not employed at the same establishment because, although the Council was a single undertaking, they worked at different physical locations. However, under European law, they were all in the “same service” and their terms and conditions were subject to a single source - the Council.

The EAT upheld the women’s appeal on the question of whether they worked in the same establishment as their comparators, saying that “only if the facts demonstrate that there are subsets of its operation which ought properly to be regarded as separate establishments, will that presumption be set aside”. As all the claimants and their comparators were all involved in delivering the Council’s core statutory services, the "same establishment" was, in these circumstances, the Council.

It also concluded that, under European law, they were employed in the same service and therefore subject to a single source for their terms and conditions. In this case, the Council was the “single source” because it was responsible for setting the pay terms of both the claimants and their comparators.

Court of Session decision

The Court of Session held that as section 1(6) of the Equal Pay Act referred to “at an establishment” as opposed to “in an establishment”, this conveyed “an association with a locality” rather than the whole body or undertaking. On that basis a school was a distinct establishment from other places of work under the Council’s aegis.

The Tribunal was right, therefore, that, even though the women and their comparators were all employed by the same Council, they worked at different locations under different management structures.

The Court then considered whether the women were employed on “common terms” with the men. It agreed with the Tribunal that they were, not least because the Council had consistently advised its staff since 1999 that they were on single status terms.

That being so, it asked whether a hypothetical male comparator, employed in his current job at the school, would have continued to be employed on terms and conditions applicable to manual workers. It found that he would.

The Court of Session had previously decided in North v Dumfries & Galloway Council that claimants do not have to show that there was a realistic possibility of the comparators working at the claimants’ establishment, just whether they would have stayed on the same terms and conditions.

Holding that the Tribunal had been entitled to conclude from the facts that they would, it rejected the appeal and upheld the Tribunal decision that the claimants and comparators were in the same employment.

Comment

Lord Eassie went even further, saying that there was no question of the comparator’s terms ever changing simply as a result of a change of location. Instead it was the nature of the job which determined the terms and conditions on which claimants and comparators were employed rather than the place they carried out their work.Unfortunately, the other judges did not agree and said that the matter would have to be determined on a case-by-case basis.

This issue is to be heard by the Supreme Court in the case of North v Dumfries & Galloway Council in October 2012 and an appeal to the Supreme Court in Wilkinson may follow.

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