Yes, held the Court of Appeal in Asda Stores Ltd v Brierley.
Thousands of Asda’s retail staff say their customer-facing roles are undervalued compared to warehouse work. For equal pay comparisons, Claimants and their comparators need to be working at the same establishment, or at establishments at which “common terms are observed”. The Court of Appeal decided that common terms were observed between the warehouses and supermarkets, so the claims could proceed. The Court also held that the claimants would be entitled to draw the comparison under European law because there was a “single source” for their and their comparators’ terms, but declined to decide whether European law had direct effect in relation to equal value claims. The Court of Appeal explains the test for “common terms” in purely hypothetical terms, considering it unnecessary for claimants to present evidence about the actual terms on which they and their comparators are employed. Employers will have a tough time arguing that they don’t need to ensure pay equality between workers at different sites operating different employment regimes: the question won’t be how different are the terms at the two sites - but how different would the terms be, if workers from one site were transplanted to do their own jobs (however unlikely that is in practice) at the other site.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
CIPP comment Whilst the Court of Appeal denied the right to appeal it has been reported that Asda intends to apply to the Supreme Court to appeal against this latest ruling
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Working Time Directive and actual hours worked 13 February 2019
The Advocate General in a Court of European Justice (CJEU) case has suggested that an employer should keep records of actual hours worked to fulfil its obligations under the Working Time Directive.
Keeping records of working time
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
Is it necessary for an employer to keep records of actual hours worked to fulfil its obligations under the Working Time Directive ?
Yes, suggests Advocate General Pitruzzella in the CJEU in Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.
The CCOO is a trade union which brought a group action before the National High Court in Spain against Deutsche Bank, seeking a judgment declaring the bank was under an obligation to record the actual daily working time of its employees. Deutsche Bank used an Absences Calendar which only permitted the recording of absences for full working days (annual leave, sick leave etc.). Actual hours worked on a particular day were not recorded.
In his opinion, Advocate General Pitruzzella stated that in order to comply with duties under the Working Time Directive , national law must require employers keep records of actual time worked by workers. He commented:
"...[T]he absence of a mechanism for recording working time will significantly reduce the effectiveness of the rights which [the Working Time Directive] confers on workers, who will essentially be dependent on their employer's discretion...
I would add that, even though [the] Directive...does not expressly provide for such an obligation...such an obligation is
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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