Judge denies PDAU Claimants the right to pursue Boots for Indirect discrimination over premium pay cuts.
Background
In June 2011, Boots unilaterally reduced the premium pay for those employees who work on a Sunday (and Bank Holidays) and who joined Boots before 2000.
At the time of the announcement, the PDAU approached Boots at the request of many affected pharmacists to deal with the matter on a group basis, rather than require individual grievances to be held on essentially the same point. This request was declined and the company encouraged its employees to contact their own line manager to raise a grievance as Boots stated it was only right for it to make the time to speak to each of its people individually to discuss options. At the time we took this as a sign that the company was prepared to listen to its pharmacists with a view to reviewing its position and the PDAU provided representatives for those meetings. It became clear that Boots, although going through the motions, were not dealing with grievances or appeals on a local basis but in fact were referring them all for Head Office responses – all similar in their tone and content. There came a point when it seemed highly unlikely that Boots would address members’ grievances and rescind their decision to reduce premium payments so we advised that members should consider lodging a claim.
In December 2011, nineteen PDAU members issued a claim in the Employment Tribunal against Boots for unlawful withholding of wages and discrimination because of what they deemed to be unfair treatment on the grounds of sex and age. At an early stage in proceedings, the Judge determined that the issue of unlawful withholding of wages should be heard separately from the claim for discrimination.
A hearing took place in April 2012 and the employees were successful in their claim. The effect of this was that they received arrears of their Sunday pay at double time from the date of the first deduction. Based on this success, other members approached the PDAU to seek advice on whether or not they could make a similar claim. A claim was filed with the Employment Tribunal in May 2012 on behalf of those 140 pharmacists.
In replying to all 159 claims for discrimination Boots submitted that the Judge should throw out the claims because they were ‘out of time’. The Judge decided that he should hear evidence from both parties in a formal hearing as to whether or not he should allow the claims to continue.
The decision not to allow the claim for discrimination to proceed
The hearing took place on Thursday and Friday 25th and 26th April. Although it will take a few weeks to obtain the written determination, the Judge has unfortunately decided to accept Boots arguments that the claimants should have brought their claims earlier. This effectively stops the discrimination claims from going any further.
The point of issue between the claimants and Boots was whether the claims had been presented to the tribunal in time and the question of when time began to run was crucial to the decision.
We argued that the unlawful deductions continued from 1st June 2011 and that every month there was a continuing deduction and therefore a continuing act and detriment. Boots argued that there was one deduction, one single act on 1st June 2011 and although there were continuing consequences of that one act (of alleged discrimination), the act itself did not continue.
We also argued that even if the Judge determined that the claim was ‘out of time’ because it was a single act that took place in June 2011 that it was just and equitable for the tribunal to hear the claims. We provided evidence that between the 1st June 2011 and the date of submitting claims, claimants participated in a grievance process where it was hoped that Boots would change its’ mind and decide not to make the unlawful deduction.
Boots argued that whilst the original 19 claimants did follow the grievance process, the company had already made up its mind about the change and would never have decided to keep the premium pay at double time. Essentially its argument was that the claimants should have complained to the tribunal within three months of the first unlawful deduction in June 2011.
The PDAU was disappointed at the Judgement on two accounts.
The first being the anomaly in the law where the unlawful deduction of wages under the Wages Act was deemed to be a continuous act and unlawful every time a deduction is made (and therefore a claim could be brought within three months of the last deduction) but the very same act for the purposes of discrimination legislation was not seen as continuous.
The Judge preferred to rely on a number of historical cases and more importantly a very recent case concluded in early 2013 as opposed to the case law we presented and our interpretation of it. The 2013 case in particular appeared to persuade him that every time an unlawful deduction was made it did not constitute a continuous act.
As stated in the earlier passage of this communication, the company declined to hear a group grievance and that it stressed in correspondence to the PDAU that it wanted to hear the concerns of its employees through individual grievances to consider options. Given this position we were surprised that Boots’ application to have the claims struck out centred around the fact that it had no intention of ever changing its mind on cutting the premium payments; even though it encouraged (and in our view delayed hearing) those individual grievances. This supported our later assertion that the grievance process they subjected their individual employees to was shown to be a sham exercise, in that they had required their employees to attend grievance meetings and appeals without there being any prospect at all of the company changing its decision. The Judge however saw this as the weakness in our case and that we should have realised and the Claimants should have realised (as it is their case) that Boots was not going to change its’ mind irrespective of whether it heard grievances or not.
Perhaps this admission is not something that Boots or indeed any other employer should be proud of, but it was an argument that won them the day. The PDAU will take this on board in future when dealing with our members’ grievances. It would seem that employees should be more prepared to put in a claim at an early stage rather than rely on the promises of their employers to listen to grievances in the spirit of resolving disputes, which such meetings are intended to do
What Next
All claims for discrimination will not proceed.
This decision does not affect the original Judgement that the cuts were unlawful or any awards made because of that.
Claims for unlawful deductions of wages still exist for the 140 members who approached PDAU after the Judgment of April 2012 and the same Judge will have to decide whether these employees waivered their right to bring a claim (i.e. they accepted the new contractual terms by working to them without expressing any objection in the form of a grievance or bringing legal proceedings).
Boots will argue that these individuals are simply jumping on the bandwagon after the success of the original claimants and whilst the Judge may well accept Boots position we will do all that we can to convince him otherwise to ensure that everyone can benefit from the original decision.
PDAU will keep you informed of any further developments
Thank you for your continuing support.