16 May 2021

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

Asda Stores Ltd v Brierley

The Supreme Court has upheld a previous Court of Appeal (CA) decision that retail workers can compare pay terms for the purposes of an equal pay claim to distribution workers, due to common terms applying at the establishments.

Around 30,000 predominately female retail workers have submitted equal pay claims against ASDA, alleging they were not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. They argued that the roles of retail workers, and those working in distribution, are similar enough to warrant an equal pay claim.

Before it could hear their actual equal pay claim and therefore determine whether pay is related to gender, it was necessary to establish if a comparison could be made between the two groups. Both the employment tribunal (ET) and the employment appeal tribunal (EAT) determined that the retail workers could compare their pay terms to those applying to distribution workers. ASDA appealed to the CA, which dismissed their appeal.

The CA assessed key matters under domestic law when determining whether common terms apply at the establishments. They found that common terms do not require all the terms that apply to relevant employees to be common. Instead, taking a common-sense approach, “broadly common” terms will satisfy this requirement.

Applying this to the case in question, the CA highlighted that common terms applied to all retail workers employed at retail sites. Notwithstanding the slight pay variation between depots, there were also common terms applied to all distribution employees working at distribution sites. As common terms and conditions applied to the relevant classes, regardless of where they actually worked, the CA held that the ET and EAT had correctly determined that retail workers could compare their terms against those of distribution workers.

ASDA appealed further to the Supreme Court (SC), which has dismissed their appeal. Agreeing with the CA, the SC found that the conditions of retail workers and those in the distribution centres could be comparable even if the groups were not based at the same establishment. The SC explained that the correct test, from existing case law, was to establish whether the comparator, if employed to do their job in the claimant’s establishment, would do so under existing terms and conditions. The ability to compare employees across sites is there to prevent organisations from avoiding a successful pay claim on this basis.

The SC went on to outline that the original ET had considered the wrong question by carrying out a line-by-line comparison of the terms and conditions of employment between the two groups. What they should have done is establish a broad comparison by seeing if the terms were substantially the same. This was necessary in order for comparisons to be made that otherwise may not have been due to geographical or historical factors. That said, as the ET had correctly concluded that distribution employees would have been engaged on mostly the same terms if they had been engaged at the claimant’s site, the SC did not interfere with their ruling.

The claimants are now free to return to the ET to have their equal pay case heard. ASDA is still able to make the argument that there is a material difference between the roles which justified the disparity.


M Austin v A1M Retro Classics Ltd

The ET has ruled that the claimant was unfairly dismissed after posting his frustrations with his employer on social media. Mr Austin was employed by the respondent as a paint sprayer. On 13 February 2020, both parties entered into an argument about the claimant’s poor workmanship which resulted in the respondent becoming agitated and shouting at the claimant.

After the claimant returned home that day, he turned to Facebook to vent his frustrations about the argument; one of the posts read: “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” The post garnered a number of responses from people attempting to reassure the claimant, some of which were inappropriate and included personal verbal attacks towards the respondent – including homophobic comments.

Some days later, on 17 February 2020, the claimant was called into a disciplinary hearing without any real prior notice and without the respondent’s disciplinary policy having been followed. The claimant was dismissed via telephone the next day and later made a claim to the ET for unfair dismissal. The claimant also argued that he was not given the opportunity to be accompanied at the hearing.

The ET upheld his claim because the respondent had failed to carry out a proper investigation of the incident and there had been no prior notice given to the claimant that the disciplinary hearing would be taking place.

With regards to the former, the respondent attempted to rely on their social media policy which states that employees should only make posts on their personal social media accounts and not make comments which would ruin the reputation of the organisation and those in charge of it. To this the ET expressed that the respondent should have investigated whether the claimant’s occupations and place of work were identifiable on his Facebook page before calling a disciplinary hearing. The ET went on to say that a “reasonable” employer would have not only done this but also checked the privacy settings of the post and the size of the group who interacted with it – due to the social media policy highlighting the need for “appropriate privacy settings” on employee posts.

The ET’s explanation of its decision that it was satisfied that the claimant had not been given enough notice of the disciplinary hearing relates to the claimant’s blatant unpreparedness for the hearing. He had not been given any information of what was being alleged against him; thus, he could not prepare a defence. In all, it was clear that the respondent had not followed a fair procedure before concluding that a dismissal was reasonable.

Although the ET upheld the claim of unfair dismissal, it disagreed that the claimant had not been given the opportunity to be accompanied to the disciplinary hearing. The ET found that there was no evidence to show that the claimant had requested to be represented by a trade union or a colleague.


Barlow v Horwich Farrelly Solicitors

The ET has ruled that a claimant was not unfairly dismissed after being made redundant and having their bumping request denied. ‘Bumping’ is when one employee whose role is at risk of redundancy is redeployed into another employee’s position, meaning that employee will be made redundant instead.

The claimant, Ms Barlow, began working for the respondent’s subsidiary, Zest Legal, in 1987 as a secretary. As she progressed through the company, her role changed to that of client relationship and development coordinator in 2011, as well as working as a personal assistant to the head of the company.

In 2017, Zest Legal went through a period of winding down, rendering fourteen staff redundant and redeploying twelve others to existing roles in other departments. During this period, Ms Barlow’s knowledge and expertise proved useful to the company and she played a considerable role in the winding down process which lasted for a period of two years. However, in 2019 after the winding down of Zest Legal was complete, Ms Barlow was informed that her role was at risk of redundancy.

As her role was independent, Ms Barlow was told that there would be no selection pool and that the only alternative roles available were lower ranking and which carried lower salaries. Ms Barlow argued that although Zest Legal had wound down, she was still employed by its parent company, Horwich Farrelly Solicitors (HFS), and thus a fair process would call for all others within HFS who had the same role as her to also be at risk of redundancy. She put forward the option of bumping a HFS employee in order for her to move into their role. HFS rejected this, arguing that it had considered the option and had determined that doing so would not be an appropriate action to take.

Ms Barlow’s role was made redundant shortly after as she had rejected the lower paid role offered to her. She appealed this decision with HFS unsuccessfully and thus brought a claim of unfair dismissal to the ET.

The ET rejected the claim that Ms Barlow had been unfairly dismissed. The fact that she had accepted that a redundancy situation had arisen meant that the ET simply had to consider whether HFS could have considered bumping by creating a selection pool of all its own staff performing the same role as Ms Barlow. The ET held that it was indeed appropriate for Ms Barlow to have been the only one in the selection pool as her role was the only one at risk of redundancy and that an organisation is not legally obligated to bump another employee or consider this as a suitable option.

It went on to state that it would have been a reasonable response if HFS had chosen the bumping route but since they did not, for sound and genuine business reasons, it was up to Ms Barlow to show that the decision was unfair. In this case, she had not successfully proven HFS’s decision to be unfair. 

Featured in the June 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.