Category Archives: Claim

Should Employers Take The Gender Pay Gap Seriously?

wage-gap-concept-blue-symbolizing-men-red-womenSUMMARY: A failure to address gender pay gaps can create both financial, legal and reputational risk for employers. We answer some frequently asked questions about equal pay.

Do we have to pay men and women the same?

The law provides that men and women should be treated equally when doing “equal work”.  This means men and women must be treated equally in relation to their terms and conditions of employment if they are employed to do:

  • like work. This means work that is the same or broadly similar;
  • work rated as equivalent under a job evaluation study; and
  • work found to be of equal value in terms of effort, skill or decision making.

In order to establish if there is equal treatment or otherwise, there will need to be a comparison of the terms and conditions enjoyed by a member of the opposite sex working for the same employer, doing like work of equal value.

Employers should not forget that the equal pay law protects men too.  Women who are pregnant or on maternity leave have special rights when it comes pay, benefits and bonuses.

Is there any way of defending an equal pay claim?

It is open to an employer to defend a claim if it can show the reason for the difference is due to a genuine factor and is not based on the sex of the employee. Common factors would include a difference in geographical location, experience or qualifications.

Is it just pay that we have to ensure is equal?

The equal pay law covers all aspects of pay and benefits including:

  • basic pay;
  • contractual benefits, i.e., company cars;
  • holiday pay;
  • hours of work;
  • non-discretionary bonus payments;
  • non-monetary benefits;
  • pension benefits and access to pension schemes;
  • performance related pay and benefits, overtime rates and allowances; and
  • sick pay.

The following areas would not be covered by the equal pay law but could be challenged under the sex discrimination law:

  • discretionary bonus payments;
  • discretionary pay increases;
  • promotion; and
  • the terms of a job offer.

To avoid the risk of equal pay claims we are considering banning staff from talking about how much they get paid?

Whilst employers are able to impose some restrictions on their staff about discussions concerning pay, any ban on this type of discussion would be unenforceable, if the purpose of the discussion is to identify if there is unlawful pay discrimination. This means a gagging clause in a contract of employment will not be effective if its aim is to prevent this type of discussion.

Any disadvantage including dismissal suffered by the employee as a consequence of their disclosure about pay for the purpose referred to above will be unlawful victimisation.

Do we have to respond to a request from a member of staff asking for information about pay differences?

A person who thinks they may have an equal pay claim may submit questions to the employer to help them determine whether they have such a claim.    An employer is not legally obliged to respond.  Before making the decision not to respond, an employer needs to be aware that an employment tribunal can take into account any response, or lack of response as a contributing factor when considering the issue of discrimination.

An employer faced with a request for information will need to consider carefully the nature of any response it chooses to provide and any decision not to respond. In any event, if legal proceedings are commenced the employment tribunal may order the information to be provided.

Acas has provided guidance on the question and answer process – Asking and responding to questions of discrimination in the workplace.

Should we be aware of any additional legal requirements?

It is expected from October 2016 private and voluntary sector organisations with more the 250 employees will be required to publish information about the pay differences between men and women. The first reports will have to be published by April 2018.

These requirements do not apply to the public sector.

If we lost an equal pay claim, what are the sanctions?

Any claim by an employee can be brought during their employment or no later than six months after their employment has ended.  Any individual wishing to issue a claim would have to contact Acas to consider conciliation.

A successful employee would be entitled to:

  • a declaration that their rights have been breached;
  • payment of any arrears (in the case of pay); or
  • damages (in the case of a non-pay contractual term).

In most cases arrears of pay can go back up to six years before the date the claim was brought.

Any employer who loses any case in the employment tribunal can now be ordered to pay a financial penalty of between £100 and £5,000, which is payable to the government.

In some cases, a losing employer will be required to carry out an equal pay audit and publish its findings supported by a plan to avoid breaches occurring or continuing. The penalty for failing to carry out the audit is up to £5,000.

Contact Details

If you would like more information on good equal pay practices with a view to engaging with your workforce and to minimise the risk of claims, please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 12th Day of Christmas…

12th Day of ChristmasOn the 12th day of Christmas my employee said to me….  “One of our suppliers has given me a crate of wine as a thank you.”

The employer might say, “well lucky you, I didn’t know we had Santa on our supplier list, merry Christmas!”  Or they might say, “make sure you share it around the office”, and the employee is left attempting to divide 12 bottles of wine between 14 people.

Either way, there are some concerns which an employer should be aware of when a member of staff receives a generous gift:

  • Could this be a bribe? 

The Bribery Act 2010 creates offences both of bribing and being bribed.  Accepting a generous gift may be considered to be accepting a bribe, depending upon the purpose of the “gift”.  For example, if the supplier gave the employee the crate of wine to guarantee their son being offered a job, this could amount to a bribe.

  • What does the employer’s hospitality and gifts and/or anti-bribery policy say? 

These policies would not usually ban employees from accepting gifts.  Guidance will however be given as to what procedure the employee should follow.  For example, a monetary limit on gifts which employees can accept without notifying the employer and what to do if employees receive gifts over this amount can be explained.

Having a procedure which employees are required to follow could help to identify potential bribes.

  • What does the employer’s whistleblowing policy say? 

If an employee considers that the gift is in fact a bribe, they may raise this with the employer by following the procedure set out in a whistleblowing policy.  Any such whistleblowing complaint should be fully investigated.  If an employee does raise such a complaint, they are likely to have additional protection if they suffer a detriment in the future (for example, dismissal) as a result of their whistleblowing.  An employee does not need to have two years’ service to bring a whistleblowing claim.

To manage any potential bribery risks, an employer should ensure they have in place an anti-bribery policy, whistleblowing policy and hospitality and gifts policy and that employees are aware of these policies and how to use them.

Merry Christmas!

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Dress Codes – Avoiding Discrimination Claims

Dress Codes - Avoiding Discrimination ClaimsSUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.

Background to case

A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab).  After a half-day trial, Ms B was invited to interview.  She wore a jilbab on both the trial day and the interview day.  At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work.  The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.

Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.

Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.


The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.

It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women.  It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard.  The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.

The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B.  However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.


The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic.  Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.

Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.

Indirect discrimination on grounds of religion or belief occurs where:

  • An employer applies to an employee a provision, criterion or practice (PCP).
  • The employee has a particular religion or belief.
  • The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.
  • The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.
  • The PCP puts or would put the employee at that disadvantage.
  • The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:

  • it had a legitimate aim (for example, compliance with health and safety obligations); and
  • the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.

What can employers require in terms of dress code?

The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.

An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.

In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment.  The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations.  If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).

An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children.  However, there may be some work environments where there are no health and safety considerations which could justify such a ban.

It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab).  Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf.  Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”.  We consider this argument would be unlikely to justify discrimination if it occurred in the UK.

We advise that all employers consider whether to have a written dress code policy.  The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.


Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13

Contact Details 

For more details about dress code and if you would like us to draft a policy for your business, please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.