As you are aware, the world of employment law can be a treacherous one. Employment tribunals offer us a peak into how a company may fall foul of the law in unexpected ways. One such case has recently come to a conclusion, which highlights the pit falls a company may unknowingly walk into.
The case in question is that of Mrs Gharabli, a support worker at Cedar Hope Care Services. On the 24th of August 2023 Mrs Gharabli was reviewing the work schedule when she noticed that overseas support workers on visas were being paid at a rate of £12.31 per hour. On the face of it, this information is uncontroversial, but Mrs Gharabli noted that domestic support workers were only being paid £10.50 per hour. At the time Mrs Gharabli was a senior support worker making £12.50 an hour; she thought it unusual that she, a senior member of staff with more responsibilities than her junior counterparts, was only making 19 pence an hour more than them. Upon discovering this, Mrs Gharabli contacted her line manager to discuss her findings; in response Mrs Gharabli’s pay was increased to £13.50 an hour.
You may be wondering why Cedar Hope Care Services decided that overseas and domestic support workers should paid at different rates. This was due to the fact that the Home Office immigration salary list at the time specified that the minimum yearly salary for individuals with skilled worker visas was £26,200 or in this instance £12.31 an hour. While domestic minimum wage at the time was set at £9.50 for those over the age of 23. As the national minimum wage increased in April 2023 and April 2024 the domestic support workers’ pay was adjusted to £11 and £12 respectively. In January 2024 Mrs Gharabli made the decision to shift her role from senior support worker back to a support worker. In order to match the lower seniority of this new role, Mrs Gharabli’s pay was decreased from £13.50 to £11, in line with the pay increase the care home had provided in April 2023. On the 28th of June 2024 Mrs Gharabli resigned with immediate effect, citing discrimination on the basis of pay and gender.
So, what did the tribunal have to say about this?
The judge found that domestic support workers were in fact at a disadvantage when compared to overseas workers due to the fact that national minimum wage requires a lower rate of pay for domestic employees, while overseas employees get the higher rate set by the Home Office. It was found that as the roles and responsibilities of domestic and overseas workers were fundamentally the same at the time, they should have been paid at an equal rate. While the company argued that they had paid every member of staff what they were legally entitled to, this was still found to put domestic workers at a disadvantage. Cedar Hope Care Services argued that the only way they could move forward would be to stop hiring overseas workers on visas as they could not afford to raise the domestic workers pays to match. However, the tribunal could not see any evidence that paying domestic workers an equal wage would be “financially prohibitive”.
Even though Cedar Hope Care Services had followed the letter of the law by providing both domestic and overseas workers more than their requisite minimum wages, they had still put domestic workers at a disadvantage. As a result, Mrs Gharabli was awarded a total of £14,175 including damages for injury to feelings, financial loss, and interest.
So, how do you avoid falling into the same trap as Cedar Hope?
Well, the obvious answer is to pay any employees with equal roles and responsibilities the same amount regardless of whether they are a domestic or overseas worker on a visa. However, this is not the only answer; Cedar Hope could have avoided this if they had considered all the alternatives to paying different rates. As it stood Cedar Hope only considered two options, paying separate hourly rates or not employing any overseas workers at all. The tribunal found that they had not even considered the option of paying both domestic and overseas workers the same wage. As such they could not provide the tribunal any evidence that this would not be a viable, non-discriminatory, alternative.
Written by Lucy Williams FCILEx
Head of Employment Law & Human Resources at Key Group Services Ltd