Tuesday Q&As

5.4.22

More Q&As about employment law, especially holidays!

Equal pay

Q. Hi. Am I entitled to equal pay as somebody who does the exact same job as me on the same shift and holiday entitlement. We work in the same department and have both signed a job description form and I’ve worked there 10 years longer. Thank you

A. No, an employer is free to pay its employees whatever they wish even if they undertake the same role. Individual terms are discussed and agreed between the parties when agreeing the contract of employment. The job market is fluid and currently, in certain sectors, workers are few and far between and can therefore demand a premium when it comes to remuneration, which may have happened in your case.

However, there is an exception, and that is when women are paid less than men (or vice versa) for doing like work, work of equal value or work considered as equivalent. There have been class actions in the past when supermarket checkout operators, mainly women, were paid less than their male counterparts who worked in the warehouse. The work was considered as being of equal value when they brought a claim under the Equality Act.

So, in your case, if the majority of the women on the shift are paid more than the men there may be a case, but this sounds like you are simply paid less than another worker.

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Tribunal procedure

Q. I stumbled across your Tiktok videos when I was researching about Employee Tribunal reconsideration applications. I’ve recently won a tribunal for unfair dismissal after being dismissed for whistleblowing misuse of the furlough scheme. The employer didn’t respond to any part of the process from conciliation to hearing, but since being served the judgement are claiming they knew nothing about it. Luckily for me I have ample evidence showing they did and obviously chose not to represent to defend at the time. I’ve been researching online about what best to do to object their request for reconsideration and whether I have to copy them into any objection sent to the Tribunal.

A. It is not uncommon for employers to ignore tribunal correspondence when a claim is made against them. Some genuinely do not receive the claim papers because of some fault in the delivery process. The tribunal is obliged to consider any application for a review. In your case, you state you have ample evidence that the Respondent was aware of the initial claim and the hearing date and chose not to attend.

You are right to object to the tribunal giving your reasons. You should also copy in your response to the Respondent, otherwise you will simply be told by the tribunal to submit it again copying in the respondent. It won’t prejudice your case if you do so in any event. I would also consider sending any evidence backing up the assertion that the Respondent had knowledge of the proceedings and copy them into that correspondence too, as they would have to deal with it if the tribunal rely on it.

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Holiday pay calculation

Q. Hi, what can be done if my employer won't acknowledge the average previous 13 weeks wage calculation for holiday pay, and only pays basic flat wage for holidays.

A. To calculate holiday pay for hourly paid employees with varying pay your employer must now go back 52 weeks to find the average which includes regular overtime, bonus and commission payments. I recently produced a video on this. You initially raise a formal grievance. If the issue is not resolved you must contact ACAS with a view to making a claim at the employment tribunal for an unlawful deduction from pay.

Note: You must make the claim within three months of the date of the last deduction, or series of deductions. If there is a break of three months or more in any series of deductions, it breaks the chain. You can only claim back unlawful deductions for a maximum of two years.

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