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Avery Care Homes Equal Pay Legal Action

Wednesday, December 2, 2015

GMB Instruct Lawyers To Begin Legal Action For Equal Pay For Women Members Employed By Avery Health Care In 15 Care Homes In England

The level of discrimination by the Avery Healthcare Group is quite breath-taking and we intend to seek compensation of six year’s back-pay for these members in the High Court says GMB.

GMB has instructed Leigh Day to begin legal proceedings to win equal pay for 62 members employed by Avery Healthcare Limited in female dominated predominately caring roles. See notes to editors for copy of Leigh Day’s “Letter Before Claim” on breach of contract claims against Avery Healthcare Group.

GMB consider that these members are employed to carry out equal work to that carried out by men employed by Avery whose terms and conditions are more favourable than those of  these members.

Avery Homes run 15 care homes in Cheshire, Hampshire, Kent (2), London, Lincolnshire, Northamptonshire (2), North Yorkshire, Shropshire, Staffordshire, Surrey, Wiltshire and Worcestershire (2). See list in notes to editors

Chris Benson, a partner at the law firm Leigh Day the UK’s leading employment firm advising claimants and trade unions on Equal Pay, said "Despite our extensive experience in the field of equal pay we were shocked to see the inequality between female carers and male staff undertaking work of equal value within care homes run by Avery.

Within days of speaking to the GMB, Leigh Day now represent over 60 carers with the final number possibly in excess of a 1000 claims as the full scale of the unlawful payments offered to carers becomes clear.

While it is recognised in some sectors that women are undervalued and underpaid I did not expect to see this happen in care homes. 

These women carry out the most important role in this organisation, caring for vulnerable residents.  Time and again it has been shown that care staff perform a difficult job under a lot of pressure to ensure the best possible care is provided.  The fact that Avery should pay these female staff members less than jobs predominantly done by men is astonishing.”

Justin Bowden, GMB national officer for the care sector, said "Paying somebody less for the job they do because they are a woman was outlawed in Britain in 1970, yet incredibly - some 45 years after the Equal Pay Act was passed - Avery Healthcare are paying female carers and other vital frontline staff they employ hundreds of pounds a year less than males in equal occupations.

The level of sex discrimination displayed by the Avery Healthcare Group towards these women they employ is breath-taking. GMB intends to seek compensation of six years back-pay for these members in the High Court."

End

Contact: Justin Bowden 07710 631351 or GMB press office 07974 251 823 or 07921 289880

For information on High Court action contact Leigh Day: David Standard 07540 332717.

Notes to Editors:

1 List of Avery Homes

List of Avery Care Homes

Adelaide, 35 West Street, Bexleyheath, Kent, DA7 4BE

Amarna House, Rosetta Way, Boroughbridge Road, York, North Yorkshire, YO26 5RN

Birchwood Grange, 117 Preston Hill, Harrow, Greater London, HA3 9SN

Bowood Court, Hewell Road, Batchley, Redditch, Worcestershire, B97 6AT

Bowood Mews, Hewell Road, Batchley, Redditch, Worcestershire, B97 6AT

Clayton Manor, Rood Hill, Congleton, Cheshire, CW12 1YZ

Elvy Court, 200 London Road, Northwich, Kent, ME10 1QA

Glenmoor House, 25 Rockingham Road, Corby, Northamptonshire, NN17 1AD

Lavender Lodge, Bruntile Close, Reading Road, Farnborough, Hampshire, GU14 6PR

Ashurst Mews, Northampton Lane North, Moulton, Northampton, Northamptonshire, NN3 7RQ

Merlin Court, Marlborough Court, The Common, Hyde Lane, Marlborough, Wiltshire, SN8 1JR

Oban House, 46 Bramley Hill, Croydon, Surrey, CR2 6NS

Priory Court, Priory Road, Stamford, Lincolnshire, PE9 2EU

Rowan Court, Silverdale Road, Newcastle-under-Lyme, Staffordshire, ST5 2TA

St Georges Park, School Street, St George's, Telford, Shropshire, TF2 9LL

2 letter from Leigh Day dated 1st December 2015.

Dear Sirs

Re:      Letter Before Claim

            Breach of contract claims against Avery Healthcare Group

We have currently been instructed by 62 employees of Avery Healthcare Limited (“Avery”) in female dominated predominately caring based roles and GMB members.  Our clients intend to pursue claims in respect of breaches of their contracts of employment.  These breach of contract claims are brought with reference to section 65(1)(c) of the Equality Act 2010, section 1(2)(c) of the Equal Pay Act 1970, Article 141 of the EC Treaty and the Equal Pay Directive 75/117.

Details of the alleged breaches

Our clients believe they have not received payments which they are entitled to under their contracts of employment, and in particular pursuant to the equality clause implied into their contracts by way of section 1(2) of the Equal Pay Act 1970 and section 65(1) of the Equality Act 2010. 

They believe they are employed to carry out equal work to that carried out by men employed by Avery, whose terms and conditions (apart from the equality clause) are more favourable than those of our clients. 

Specifically, our clients believe that their comparator receives additional remuneration primarily by way of a higher rate of hourly pay. 

The comparator role that our clients currently seek to rely on is that of the ‘maintenance man / site caretaker’.  Additional comparators may be relied upon following further disclosure and we reserve our rights in this respect. 

The clear majority of staff employed as of maintenance men and/or site caretakers at the Avery’s sites are male. 

Our view is that there is no material factor (not being the difference in sex) that would prevent the operation of the equality clause in these circumstances, and note the comprehensive decision of the Employment Tribunal in Barker & Others v Birmingham City Council to that effect.

As a result of the above, our clients consider that they are entitled to the benefit of the equality clause adjusting their terms and conditions so that they are not less favourable than those of the relevant male employees.  Avery are in breach of their contracts of employment by failing to pay our female clients the sums paid to the male comparators carrying out equal work. 

Any male clients included in this claim will rely on female employees on the equivalent grade or lower, who were owed or were subsequently paid a higher salary or were receiving compensation as a result of the equality clause.  Whilst the claim is drafted from the perspective of the female employees, should they be successful their male colleagues will rely on the same arguments and pay differential.

The remedy sought

Our clients are seeking damages on account of the past failure to comply with the equality clause. 

Our clients claim damages for the absence of or shortfall in payments made to them in comparison to the payments made to their comparators.  It is not possible at this stage to quantify each of the individual claims, but the overall value of the claims is substantial and such as would warrant proceedings being issued in the High Court. 

As you will have noted, whilst these claims are to be brought by reference to Equal Pay legislation, they are in fact breach of contract claims.  Given the importance and cumulative value of these claims, they will be issued in the High Court. 

The attached schedule

Start and end dates

The claimants’ details are provided in the schedule attached to this letter.  We have provided the start and end dates (where applicable) for each claimant.  Where the claimant is unsure of the exact date, we have provided the default date of the first of the month.  If the claimant is unsure of the month, we have also defaulted to January of the year in question. 

Job titles

We have provided the claimants’ most recent job titles on the schedule.  This claim relates to any jobs that the claimants have held in the past 6 years whilst working for Avery.  We have not attempted at this stage to standardise claimants’ job titles but relied on the job titles provided by the claimants. 

The details of the action Avery is expected to take

In light of the above, we would ask you to take the following steps:

Please confirm that you agree with the details of job titles and dates of employment set out in the attached schedules.  If you do not agree with these details please set out and evidence what you say is the correct position.

Please confirm that Avery accepts that it has been in breach of the equality clause in relation to these claimants and confirm that it will comply with the equality clause in the future and it will make good any shortfall resulting from a breach of that clause over the last 6 years. 

Please acknowledge this letter within 7 days and provide a full written response within 28 days.  If a full response is not received within that period, proceedings will be issued without further notice.  Should you wish to extend the period of your investigations before providing a formal response, we would be willing to consider an extension of time on terms that protect our clients from the progressive impact of section 5 of the Limitation Act 1980.  For example we would be willing to allow you 49 days to consider your response to this claim on the basis of a Standstill Agreement that time would not continue to run for the purposes of the Limitation Act 1980 from 29 December 2015 for the duration of the agreement, terminable by either side on notice of 21 days.

At this stage we are keen to discuss the amicable resolution of this case.  Our clients are willing to consider any proposals for mediation or another method of alternative dispute resolution that you may have.  However, given the impact that limitation will have upon our clients’ claims, if this process is undertaken, we will need to take steps to protect their position in this regard, and would therefore ask that our clients’ position is preserved under a Standstill Agreement.

We refer you to the practice direction on pre-action conduct, and in particular paragraph 13 concerning the court’s powers to impose sanctions for failure to comply with that practice direction.  Ignoring this letter may increase your liability for costs.

We would be grateful if you could reply to the address set out at the bottom of this letter.

We look forward to your prompt reply.

Yours faithfully

Leigh Day

 

 

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