Lawyer Monthly - August 2021 Edition

Michael Malone Fellow, CIArb, Contact: Steve Walker, Lead Civil Clerk Trinity Chambers, The Custom House, Quayside, Newcastle upon Tyne, NE1 3DE Tel: +44 0191 232 1927 | Fax: +44 0191 232 7975 Email: SteveW@trinitychambers.co.uk www.trinitychambers.co.uk EXPERT INSIGHT 57 AUG 2021 | WWW.LAWYER-MONTHLY.COM women in some jobs and men in others. An apparently inevitable aspect of the multiple equal pay claims has been that it could take many years for claims to be concluded. This is largely because of sheer weight of numbers. It is a huge administrative task for the lawyers on each side to prepare a case for hearing - for example selecting the most appropriate lead claimants and comparators, sifting through thousands of pages of documents and assimilating new claims as they come in. Until now, delays have also been caused by a particular preliminary issue. Can claimants in one establishment rely on comparators who are fellow employees in a different establishment? In the Asda cases, the first claims were made in 2014, but the preliminary issue was not finally resolved in favour of the claimants until May 2021. However, that decision, and the Court of Justice decision in favour of the Tesco claimants the following month, have made it very unlikely that future cases will get bogged down on this issue. The UK has now left the EU. Future changes to EU law will not apply to the UK and there will be no further references to the Court of Justice from the UK. However, the EU law which was part of UK law on 31 December 2020, including the Enderby principle, will remain part of UK law, unless and until changed by Parliament or by the Supreme Court. Employers should bear in mind that Enderby type cases are not the only challenges. They need to be aware of equal pay practices which could be indirectly discriminatory even as between employees doing the same or similar jobs. Equal pay cases have also been known to succeed simply because employers don’t understand their own pay systems or can’t explain why one person is paid more than another. Large organisations are particularly vulnerable, because of the greater likelihood that more than one person will have been involved in making decisions about pay. Accurate and detailed record keeping is essential. Equal pay cases have also been known to succeed simply because employers don’t understand their own pay systems. Michael Malone is a retired employment judge. He is a CEDR accredited mediator and a Fellow of the Chartered Institute of Arbitrators. He is based at Trinity Chambers, Newcastle, to undertake mediations (across the whole range of contractual, commercial and employment disputes) and also early neutral evaluation in equal pay and other employment cases. He is also willing to give in house briefings, to lawyers, HR professionals and others, on equal pay generally or on specific aspects of equal pay law. Trinity Chambers is one of the leading sets of barristers’ chambers in the North of England. Regularly recommended in the Legal 500 and Chambers and Partners Directories, with Chambers in Newcastle, Middlesbrough and Leeds, Trinity barristers and Silks deal with cases across the UK.