Employment Law – Review And Update On Key Legal Issues

Despite the ambiguity surrounding Brexit, employment law has continued to evolve.

While Brexit generally remains in limbo, post-Brexit immigration enjoys a degree of certainty and clarity. For example: The post-Brexit EU Settlement Scheme is already operating, with over 50,000 applications received in the first weekend.

£65 administration fee for settled-status applications has been waived. EU citizens with 5 years continuous residence in the UK can apply for settled-status. The "gap" continues: Due to the impasse at Stormont, gender pay gap ('GPG') reporting remains outstanding in NI. However, recent reporting carried out by GB businesses has highlighted a widening gender pay gap.

GB businesses have also been encouraged to report ethnicity pay gaps ('EPG') following a consultation which closed in January 2019. Although it is anticipated that EPG reporting will be required alongside GPG in NI, it may be some time before we will see any movement on this.

This briefing covers a selection of key cases of interest.

1. CLAIMS FOR EQUAL PAY AREN'T GOING AWAY: COURT OF APPEAL RULES IN FAVOUR OF ASDA EMPLOYEES IN BRIERLEY AND ORS V ASDA STORES LTD [2019] EWCA CIV 44

   Over 7,000 predominantly female retail employees brought equal pay claims against ASDA in the Employment Tribunal.

   The first hurdle to overcome in an equal pay claim is establishing an appropriate comparator. The female employees in this case relied upon male employees in the distribution line. The female employees argued that the work carried out by men in the distribution operation is of equal value to the work that they carry out but the male employees receive superior terms and conditions.

   However, Asda argued that its distribution and retail sectors are fundamentally different, because they:

   Operate in different industries; Have different objectives; Require employees with different skill sets; Have vastly different physical environments; and Have distinctly different functions. Therefore, the female employees were not entitled to compare themselves to male employees in a different sector.

   The Employment Tribunal found in favour of the female employees and held that they could compare themselves to male employees in distribution. This was upheld by the Employment Appeal Tribunal and Court of Appeal.

   Although the female employees cleared this hurdle, they still have a long race to go. The Tribunal will have to now determine whether the work of the female employees is actually of equal value to that of their male comparators. Nevertheless, employers in the retail sector could see an increase in equal pay claims being brought after this decision, as it highlights to employees that an appropriate comparator can be someone in an entirely different role and/or area of the business.

2. BREXIT: WHAT'S THE DEAL WITH DATA PROTECTION?

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