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Shantal-Mod,
Category: Scots Law
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Employee X is a Female School Cleaner at a Local Authority

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Employee X is a Female School Cleaner at a Local Authority Secondary School in Central Scotland, and was originally directly employed by the governing Local Authority (Employer LA) as a member of a single, composite group of Female School Cleaners working shoulder-to-shoulder and performing the same Cleaning duties at the same School.
Within these workplace circumstances, Employee X had worked directly in the employment of Employer LA for 5 years before her employment was ‘no choice’ transferred by Employer LA to a Building Cleaning Services subcontractor [Employer CS], under strict governance of TUPE Regulations - while various of her colleague Female School Cleaners [Employees R] were retained in the direct employment of Employer LA.
On Day 1 of Employee X’s TUPE Transfer of Employment to Employer CS, her T&Cs of Employment with Employer CS - in full TUPE compliance – therefore remained precisely 100% the SAME in relation to Hourly Pay Rates, Holiday Entitlement, etc, as previously with Employer LA [and as continuing for Employees R] .
Full TUPE Compliance in the foregoing terms has now continued resolutely for Employee X for a period of several years, during which time fully equal T&Cs of Employment have been resolutely maintained between Employee X and Employees R, as shoulder-to-shoulder colleague Female School Cleaners, employed respectively by Employers CS and LA.
Also, as at the midpoint date of these several years, EQUAL PAY LEGISLATION has taken effect, AND the consequent Increases to Hourly Pay Rates for Female Employees has been FULLY EQUALLY applied and maintained for BOTH Employees R AND Employee X, as directly employed by Employer LA and Employer CS respectively.
Further, in implementing Equal Pay legislation, Employer LA also decided to respect a ‘duty of care obligation’ to all Female Employee groups, including Employees R, in respect of the Unfair Reduced Pay Rates which were paid in their employment prior to Equal Pay Legislation – and, on Application by individual members of Employees R, individualised compensatory Equal Pay Lump Sum [EPLS] Payments were paid by Employer LA to individual members of Employees R. [In this total context Employer LA made EPLS Payments to almost 400 Female Employees, at a Total Cost of circa £1.5m, and with an Average Individual EPLS Payment of almost £4000]
However, Employer CS DID NOT recognise a parallel ‘duty of care obligation’ in relation to Employee X - and consequently Employee X received ZERO compensatory EPLS Payment in relation to her Female School Cleaner employment prior to Equal Pay Legislation - and which of course included several years employment with Employer LA preceding the ‘no choice’ TUPE Transfer of Employment to Employer CS.
Employer CS’s ‘get out of jail’ position, in relation to NON PAYMENT of an EPLS Payment to Employee X, was that since the Employer LA EPLS Payments to Employees R had been as a ‘duty of care obligation’, and not strictly a direct consequence of a T&Cs of Employment hard parameter, then Employer CS had no TUPE-based obligation to make a parallel EPLS Payment to Employee X.
Employee X has therefore determinedly since mid 2009 pursued Employer LA on the basis that - as the decision maker for her ‘no choice’ TUPE Transfer to Employer CS - then consequently Employer LA was as at the Date of Equal Pay legislation - and still is - subject to a TUPE-based ‘duty of care obligation’ to accept an Application from her for a compensatory EPLS Payment on a precisely parallel basis to Employer LA’s fully recognised ‘duty of care obligation’ to Employees R.
However after exhaustive representations by Employee X to Employer LA on this basis since mid 2009 – and characterised by Employer LA’s absolutely total non cooperation – a complete impasse has been reached.
Court Action by Employee X is therefore now in process to decree Employer LA – as a TUPE-based ‘duty of care obligation’ in the foregoing terms - to accept an Application from Employee X for an appropriate EPLS Payment - AND - to administer Employee X’s said Application with precisely parallel process and rationale as was exercised by Employer LA in administering the parallel Applications as previously received, and accepted with positive EPLS Payment outcome, from Employees R!!
A Preliminary Hearing of Employee X’s Court Action concluded with the Presiding Sheriff instructing that full clarification is required, by an Employment Law specialist, of the legal ‘competence’ of Employee X’s claim of Employer LA’s TUPE-based ‘duty of care obligation’ to Employee X in the foregoing circumstances.
MY QUESTION : Does Employee X have – IN PRINCIPLE - a strictly legally valid (‘competent’) claim versus Employer LA in the foregoing ‘duty of care obligation’ terms??
NOTE : Various additional specific Employee X gross unfairness and injustice factors versus Employer LA also apply, and can be introduced as needed.
Submitted: 4 years ago.
Category: Scots Law
Expert:  cityguru replied 4 years ago.
Hi thanks for your question. If I understand it correctly you are asking whether there is an obligation to extend what you describe as "duty of care" payments made the LA after the TUPE transfer to employees who were transferred. My interpretation off duty of care payments is that they are ex gratia payments and not triggered by a legal obligation. If they had arisen by a legal obligation because there had been a breach of equal pay rights then that obligation would extend to all relevant employees at the time and any claim would transfer under tupe to the new employer.
If it as only an ex gratia payment then there is no obligation to extend it generally. In any case the LA is not the correct defendant. Employee X does not have a claim against the LA at all. Any claim X has is TUPE's over.
The only way in which this obligation is enforceable would be if the payment was the result of a collective bargaining agreement which formed part of the contract. It is possible for the collective agreements to be carried over - this is a very complex area of the law I am afraid and has recently been the subject of a European Court decision .
So in summary if the payments were the result of a breach of equal pay law m, X has a claim against the Transferee.
If they were a benefit negotiated under a union collective bargaining arrangement which remained part of the contract then X may have a claim against the transferee
If the payments were post TUPE and entirely ex gratia then X has no claim.
Customer: replied 4 years ago.

Thank you for your ANSWER to my original Employee X TUPE-based Employment Law QUESTION. While I had some difficulty with various specifics in the syntax and vocabulary of your ANSWER, I trust that I have clearly and fully understood the bot***** *****ne as fundamentally stating that A CLAIM BY EMPLOYEE X VERSUS EMPLOYER LA FOR AN EQUAL PAY LUMP SUM [EPLS] PAYMENT ON THE BASIS OF A TUPE ‘DUTY OF CARE’ OBLIGATION IS NOT LEGALLY COMPETENT!!

However, while readily accepting NOT LEGALLY COMPETENT in strict TUPE terms, before accepting a NOT LEGALLY COMPETENT final closure position on the overall circumstances of my original QUESTION, I would appreciate an opinion on whether a fully ‘COMPETENT’ LEGAL CLAIM does in fact apply for Employee X versus Employer LA based on an alternative NON TUPE line of argument as follows.

Basically the alternative line of argument is founded on the cornerstone actuality that the ex gratia ‘duty of care obligation’ EPLS Payments which were made by Employer LA individually to their directly employed Female School Cleaners [Employees DE] effective as at the 2006 Equal Pay legislation [as shoulder-to-shoulder colleagues of by then CS-employed Employee X] were indisputably in recognition of and strictly on the basis of each individual Employee DE’s direct employment by Employer LA as a Female School Cleaner prior to Equal Pay legislation – even if direct employment with Employer LA commenced AFTER Employee X’s TUPE Transfer to Employer CS in 2001.

Of course in these terms Employee X in principle also FULLY QUALIFIES for an ex gratia ‘duty of care obligation’ EPLS Payment by Employer LA, on the basis of her 5 years direct employment by Employer LA [1996 – 2001] prior to her ‘no choice’ TUPE Transfer by Employer LA to Employer CS in 2001.

MY FOLLOW UP QUESTION therefore : Does Employee X have IN PRINCIPLE a legally valid (‘competent’) claim versus Employer LA for a ‘duty of care obligation EPLS Payment in the foregoing terms PURELY ON THE BASIS OF HER DIRECT EMPLOYMENT AS A FEMALE SCHOOL CLEANER BY EMPLOYER LA FROM 1996 – 2001, AND THEREFORE PRIOR TO EQUAL PAY LEGISLATION IN 2006??

NOTE The gross unfairness and injustice should Employee X NOT qualify for an Employer LAduty of care obligation’ EPLS payment in these circumstances is hugely emphasised by various extenuating factors, the most blatant of which is the fact that various of Employee X’s colleague Female School Cleaners as at TUPE Transfer Date 2001 chose Unemployment rather than TUPE Transfer to Employer CS.

HOWEVER THESE SAME FORMER COLLEAGUES WERE SUBSEQUENTLY DIRECTLY RE-EMPLOYED FROM SELF-CHOSEN UNEMPLOYMENT BY EMPLOYER LA, PRIOR TO EQUAL PAY LEGISLATION DATE 2006 – AND – WITH SIGNIFICANTLY LESS TOTAL DIRECT EMPLOYMENT WITH EMPLOYER LA THAN EMPLOYEE X AS AT EQUAL PAY LEGISLATION DATE, STILL STRAIGHTFORWARDLY QUALIFIED FOR ‘DUTY OF CARE OBLIGATION’ EPLS PAYMENTS FROM EMPLOYER LA!!

Expert:  cityguru replied 4 years ago.
If the payment was entirely ex gratia and not as a result of any legal obligation then there cannot be any legal claim. If on the other hand the LA made the payment because there was a legal claim and it was described as ex gratia to avoid an admission of legal liability then there may be a possible claim but in any event it is likely to transfer with the TUPE transfer and also may be time barred because it relates to a period more than 10 years ago.
In order to take this any further it would be necessary to analyse in detail exactly the circumstances of the equal pay claim and the reasons behind the so call ex gratia payment.
Customer: replied 4 years ago.

Thank you for your ANSWER to my Follow Up QUESTION concerning a possible Back Pay Claim by Employee X in relation to her Employment with Employer LA prior to her TUPE Transfer to Employer CS.

As a final consideration, I would much appreciate clarification on the following point of detail.

This is in relation to the Amount of Back Pay Entitlement which applies when Equal Pay is in fact implemented.

My own research has indicated that this Entitlement is for a period of up to 6 years prior to the Date of Equal Pay implementation, and that an individual Amount in these terms is calculated as the difference between what the individual should have been paid and what the individual was actually paid.

My QUESTION in these terms is two fold, as follows :

FOR THE EMPLOYER WHO IS IMPLEMENTING EQUAL PAY, ARE THESE TERMS OF BACK PAY ENTITLEMENT A STRICT LEGAL OBLIGATION, AND IF ‘YES’ IS THERE A SPECIFIC STATUTE OF THE EQUAL PAY ACT WHICH SETS AND GOVERNS THIS OBLIGATION??

IF ‘NO’ - AND ALL BACK PAY PAYMENTS ARE THERFORE PURELY EX GRATIA BY THE EMPLOYER - DOES AN INDIVIDUAL STILL HAVE A ‘COMPETENT’ LEGAL CLAIM FOR UP TO 6 YEARS BACK PAY AGAINST THE EMPLOYER ON AN EX GRATA PAYMENT BASIS, IF PREDECENT CAN BE UNEQUIVOCALLY VOUCHED THAT THE EMPLOYER HAS PREVIOUSLY FULLY RESPECTED AND IMPLEMENTED THE ‘UP TO 6 YEARS RULE’ ON AN EX GRATIA BASIS FOR SHOULDER-TO-SHOULDER COLLEAGUES OF THE INDIVIDUAL??

In providing a pointed ANSWER to the foregoing QUESTION, if ‘NO’ applies to the strict legal obligation parameter of the QUESTION, it would also be helpful to provide a view of what % of Employers implementing Equal Pay do in fact fully respect and fully implement the ‘Up to 6 Years Rule’ on an EX GRATIA basis.

Expert:  cityguru replied 4 years ago.
First , can I please make the point that the use of capital letters is electronic communication is considered to be the equivalent of shouting - I assume you were not aware of that but I would ask you to bear it in mind. You don not need to use emphasis in your questions. I am able to determine the significance of the question. Secondly you have now asked to long and complicated questions but have not yet rated my answers and unless I receive a favourable rating I get no credit for my time ( the experts are completely independent of the site).
Your latest question is not really capable of any different answer from the previous ones, you are to be honest just rephrasing the same questions. The correct question is - was the employer in breach of the equal pay legislation? If so affected employees have a potential claim.
I do not know where you got the 6 year period form. The normal prescription period in Scotland for contractual claims is 5 years but I do not think it is relevant here anyway -The equal pay legislation has been around for a long time and Equal Pay Act 1970 which applies in Scotland only allows claims for back pay for 2 years.
So even if there was a breach of the equal pay legislation and there was a legal basis for a claim it can only go back 2 years however if employees subject to Tupe were not compensated there is a possible basis for a claim for backdated pay for 2 years - albeit that it may be time barred by now if it dates back to 2006 - certainly it is too late for an employment tribunal claim although a county court claim may be possible
Customer: replied 4 years ago.

I can assure you that I am a seasoned business professional, and as such not prone to the typo errors and confusing syntax which characterises your own communications.

Your previous Answers raised additional supplementary Questions, and as seasoned business professional I do not provide an overall Rating until a dialogue has been fully concluded – which ours is now as far as I am concerned!! [Is it ok to have used a Double Exclamation Mark??]

Re Your comment in your most recent Answer that (direct quote) [Italics ok??] ‘I (you) do not know where you (I) got the 6 year period form [I assume this is a another typo and should be from], well I can assure you that it was not a figment of my imagination, and I suggest you check some of the basic Equal Pay Back Pay Entitlement websites to bridge this gap in your information.

Expert:  cityguru replied 4 years ago.
I asked about the 6 year period for precisely that reason. The 6 year period referred to on such websites arises under the Equality Act 2010 which was not in force in 2006 when this claim apparently arose. The period is in any even 5 years in Scotland.
Good luck with this - I shall opt out as I have no interest in assisting rude and sarcastic customers.
Customer: replied 4 years ago.

DITTO!!

SHOULDN'T YOU HAVE FIGURED FOR YOURSELF WHERE I HAD ENCOUNTERED THE 6 YEAR RULE - RATHER THAN 'WONDER WHERE' - OR WAS THIS TOO BRAIN CHALLENGING FOR YOU??


RATING ZERO!!

Expert:  Shantal-Mod replied 4 years ago.

Hello,

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you

Shantal

Customer: replied 4 years ago.

A specific point which I had asked in a previous iteration of Q&A - but which was not answered - was :

FOR THE EMPLOYER WHO IS IMPLEMENTING EQUAL PAY, ARE THESE TERMS OF BACK PAY ENTITLEMENT A STRICT LEGAL OBLIGATION, AND IF ‘YES’ IS THERE A SPECIFIC STATUTE OF THE EQUAL PAY ACT WHICH SETS AND GOVERNS THIS OBLIGATION??

I originally asked this specific Question because a specific Answer wouild have been helpful.

Expert:  Shantal-Mod replied 4 years ago.
Hello,

We will continue to look for another Professional to assist you.

Thank you for your patience,

Shantal
Customer: replied 4 years ago.

I've decided to opt out of further Qs and As with justanswer on this one.

I've now located a Test Case for myself [Sodhexo v Gutridge] which would seem to offer more potential for a 'sharp' answer and going forward positioning than the justanswer dialogue.

However if justanswer would still like to comment on Sodhexo v Gutridge in the context of the previous Q and A trail - then 'fine'.

Expert:  Shantal-Mod replied 4 years ago.

Hello,

I apologize for not being able to find you another Professional.

If you do not wish to continue I can reverse your charges for you. Please let me know how you wish to continue.

Thank you for your patience,

Shantal

Customer: replied 4 years ago.

I now face a serious time bind to prepare for the next Court Hearing and cannot take on any further delays which will probably occur if I require to engage with another Professional.

Unfortunately therefore I regard the current position as full closure point.