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 botXXXXX XXXXXne 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 LA ‘duty 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!!
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.
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.
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??
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.
A specific point which I had asked in a previous iteration of Q&A - but which was not answered - was :
I originally asked this specific Question because a specific Answer wouild have been helpful.
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'.
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,
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.