AMB International Congress Two examples of mass litigation in the Employment Tribunal

Managing group/mass litigation ET s in Scotland and in E and W have had to develop techniques for managing large volumes of claims which raise the same legal issue against one or more employers. Two recent examples: 50,000 + claims in Scotland alone for equal pay for work of equal value. 21,000 + claims in Scotland in connection with alleged underpayment of holiday pay.

Equal pay for work of equal value Art.157 of Treaty on Functioning of EU requires member states to “ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. GB does this through the Equality Act 2010 provisions. Work of equal value means, in essence, a woman holding one type of job can compare her work to a man doing a different job if they work for the same or an associated employer.

Gender based occupational segregation Still the case that there is typically “men’s work” and “women’s work” in some employment. For example, in local authority employment many women might be found in caring/social work, cleaning, cooking etc while men may dominate in manual trades like building maintenance work, refuse collection etc.

Pay differences In UK it is not uncommon for jobs mostly be done by men to be paid at a higher rate than jobs mostly done by women. The pay difference could be but need not be seen in basic hourly rate of pay. It may be that jobs done mostly by men get bonuses and shift allowances that do not apply to women’s jobs.

Origins of the mass equal pay litigation Newcastle Lawyer – “No Win No Fee” Trade unions Local authority – Single Status job evaluation NHS – Agenda for Change job evaluation Large volume of claims across Scotland – 2006 onwards

Case management Dedicated Team and EQP Judges Administrative multiples/combining claims Single hearings for multiple claims e.g. Stage 1 EV Hearings Sample and lead cases Different types of claims – pre and post Single Status

Legal issues Equal Value Rules of Procedure – Independent Experts Statutory Grievance Procedure Multiple comparators Job evaluation challenges Appeals

Learning curve Managing long hearings Managing expectations Setting precedents Developing expertise

Holiday pay cases There is a statutory definition of a week’s pay in British employment law. The issue has arisen of whether when calculating holiday pay an employer is allowed just to pay basic pay or whether the holiday pay needs to include additional payments normally made for commission, overtime, bonuses etc?

Holiday pay cases Under the Working Time Regulations (which implement EU law – Working Time Directive) workers are guaranteed a certain amount of paid holiday every year to make sure they get some rest – this is a health and safety measure. Argument is made that failing to pay full pay for holidays undermines this EU health and safety measure.

Holiday pay cases Around 21,000 received in Scotland over 2014/15, many being backed by trade unions. Case management – specialist team of judges and administrative staff Similar in some respects to equal pay – multiples/submultiples/lead cases on key issues.