Employment law alert UK - April 2021

Commission adopts new EU Directive on Pay Transparency. This new directive proposes a powerful set of measures aimed at improving gender equality across the EU, including gender pay gap reporting (as the UK already does), transparency of pay to job seekers and employees, as well as measures to improve access to justice. It is important for businesses with European operations and may have implications for the UK.

Regulators look to toughen their approach to gender equality and diversity and inclusion. Speaking at the Women in Finance Charter Annual Review Launch on 17 March, Nikhil Rathi of the FCA announced that it is exploring ways to toughen its approach to diversity and inclusion, and is considering whether to use Senior Manager approvals as a tool to enhance diversity. Read our update.

Supreme Court rules that Asda store staff can compare themselves to distribution staff for equal pay purposes. In this long-running equal pay case, the Supreme Court has finally settled the preliminary issue that the predominantly male distribution workers are a valid comparator to the predominantly female retail store staff. The case is now a leading authority on the cross-establishment comparison and provides guidance for future case management. (Asda Stores Ltd v Brierley & others).

EAT rules that requested disclosure of comparator information in equal pay claim was not a fishing expedition. In another large equal pay claim against supermarket chain Tesco, the EAT has confirmed that a request for disclosure designed to narrow down the appropriate comparator should be allowed if it is necessary for a fair hearing (Tesco Stores Ltd v Element & others).

FCA launches new whistleblowing campaign. The FCA has announced the launch of a new campaign “In confidence, with confidence”, re-affirming whistleblowing as a key FCA priority as part of their broader culture agenda.

ECJ decision on transfer to multiple transferees applies to service provision changes. The EAT has held that the ECJ’s decision (in ISS Facility Services v Govaerts) involving a transfer to multiple transferees applies to service provision changes under TUPE, such that the employment contract of a transferring worker could be split between each of the transferees (McTear Contracts Ltd v Bennett & ors; Mitie Property Services UK Ltd v Bennett & ors).

New roadmap for employment tribunals. The Presidents of the Employment Tribunals have issued a new roadmap for listing new cases in 2021/2022, with the majority of hearings to continue to be conducted remotely and the launch of a new “virtual region” which can hear cases generated in any region of England and Wales.

Removal of non-exec director from office for expressing objection to same-sex adoption was not religious discrimination. The EAT has dismissed the appeals of this Christian NED after he was removed from office (as NED for an NHS Trust and separately from his role as a magistrate) for speaking out in public against same-sex adoption. A careful balance must be struck between the rights of the individual and the legitimate interests of the institution they work for (Page v NHS Trust Development Authority, Page v Lord Chancellor and another).