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BBC pay: Gender pay gap back in the spotlight

On Wednesday, the BBC published its annual report on pay for stars earning more than £150,000, and the statistics have been revealing to say the least. As an illustration, the top five highest earning men earn three times more than the top five highest earning women. Whilst the fact of a pay gap may be unsurprising, the scale is still shocking.

Lord Hall remarked that on gender and diversity the BBC is more diverse than the broadcasting industry and the civil service. However, what’s clear is that even the BBC has a long way to go.

It’s worth noting that the BBC has not as yet actually published its gender pay gap. Indeed it’s been reported that only around 30 or so of the 8,000 odd employers caught by the Gender Pay Gap Regulations have reported to date. However, the BBC has pledged to close the gender pay gap between men and women on air by 2020.

Speculation has now commenced as to how that will be achieved. The corporation has indicated that pay cuts will be part of the solution.

As employers prepare to publish their gender pay gap figures, a light needs to be shone not only on the solutions for closing the gender pay gap but also on the underlying reasons for the pay gap and the business case for closing the gap. Whilst there is no legal obligation to publish an accompanying narrative, messaging and communication, both internally and externally, are going to be key in delivering a ‘successful’ gender pay gap report.

BBC pay: Gender pay gap back in the spotlight

Brexit: A ‘Norway-style deal’?

The Labour Party has made it clear that it will not support the ‘Great Repeal Bill’ in its current form. It was reported last week that at least 15 Conservative MPs are in talks with a group of Labour MPs about a deal which could keep the UK signed up to the principle of free movement after it leaves the EU.

The deal has been described as a ‘Norway-style deal’. But what does that actually mean?

Under the proposed plan, the UK would remain part of the single market post-Brexit, as a member of the European Economic Area (the EEA). It would continue to benefit from free movement of goods, without applicable customs fees. However, unlike EU member states which are bound by a common trade policy, under the proposed plan, the UK would have the freedom to negotiate its own free trade agreements with non-EU countries. In exchange, the UK would be required to apply largely the same free movement of people principles as EU member states.

Whilst per capita UK contribution to the EU would fall, there would still be a ‘fee’ involved in being a member of the EEA.

From the roughly 23,000 EU laws currently in force, the EEA has incorporated around 5,000 (roughly 21 per cent). If the UK joins the EEA, a number of EU policy areas would continue to apply to it, including financial services, social and employment laws, and energy and climate change policies. While the EEA Agreement includes provisions for non-EU members to be consulted on new legislation, the UK would lose its right of veto in the European Council.

Even though details of the Great Repeal Bill have now been published, it’s all still speculation as to what happens in the Brexit negotiations and what our relationship with Europe will look like going forward. Whilst there is a general consensus that our employment legislation will remain largely unaffected by Brexit, what happens to our immigration model is still anybody’s guess.

Stay tuned to our Blog for all employment and immigration Brexit updates.

Brexit: A ‘Norway-style deal’?

Transparency: Business champion calls for the publication of age data

Transparency seems to be the goal. The gender pay gap reporting obligations came into force on 6 April 2017. The Liberal Democrats have called for mandatory reporting on ethnicity pay gap. Now, Andy Briggs, the Government’s business champion for older workers, has called for organisations to publish age data, and to sign up to a “Commit & Publish” pledge to secure at least a million more employees over the age of 50 in the workplace by 2022. This is a target increase of 12 per cent and is proposed in response to an apparent skills gap in the economy.

A number of employers have already agreed to the pledge, including Aviva, Atos, Barclays and the Cooperative Group.

Employers should start to consider the logistics of wider data collection and analysis obligations, the potential reputational and legal risks of failing to report, and any associated litigation risks of analysis exposing a wide pay gap or statistics highlighting a skewed workforce in terms of age.

Transparency: Business champion calls for the publication of age data

The Taylor Review: a new right to request fixed hours?

Zero-hours contracts remain controversial and, last month, fast food chain, McDonald’s, confirmed that it will offer its workforce of 115,000 a choice as to whether to work fixed hours or remain on their zero-hours contracts. McDonald’s had previously trialled this arrangement and they found that only around 20% of staff chose to move to fixed hours, with the majority preferring the flexibility of the zero-hours arrangement.

There has been speculation that, inspired by the McDonald’s arrangement, Matthew Taylor’s highly anticipated review on the gig economy is likely to recommend a new right for workers on zero hours contracts to secure a guaranteed number of hours. It is expected that the right will be structured in a similar way to the right to request flexible working, with the employer maintaining the right to refuse the request for specific statutory reasons only.

The Labour party has pledged to ban zero hours contracts completely but the McDonald’s experience suggests that there may still be a place for them in the modern working environment.

The Taylor Review: a new right to request fixed hours?

Social Media: The Employer Strikes Back

The recent case of Plant v API Microelectronics Ltd should serve as a reminder to employees of the potential dangers of using social media to post comments about their employer, and to employers of the importance of having in place a clear social media policy.

In that case, API introduced a policy which prohibited unacceptable social media activity, including posting comments that could damage the reputation of the company. Following an announcement of a proposed relocation, Mrs Plant unwittingly posted a comment about suing her employer on Facebook, not realising that the page was linked to her employer’s technology.

API instigated a disciplinary process, ultimately leading to Mrs Plant’s dismissal. Mrs Plant claimed unfair dismissal in the employment tribunal, relying on her otherwise clean disciplinary record and long length of service. The Tribunal held that, whilst the decision may seem harsh, the dismissal was still within the band of reasonable responses by the employer and, as such, ultimately fair.

Social Media: The Employer Strikes Back

Mental Health and the Equality Act

It’s a well known fact that mental health issues are capable of constituting a disability for the purposes of the Equality Act 2010 (the Act). However, to fall under the current definition of disability, the condition must have a “long-term” effect on the individual’s normal day-to-day activities. The Act provides that a condition will be regarded as long term if it has lasted, or is likely to last, for at least 12 months.

Accordingly, short term mental health issues, including conditions such as stress, anxiety and depression may not be covered by the Act and employees can find themselves without the layer of protection that the Act provides, including an obligation on the employer to make reasonable adjustments.

With statistics suggesting that 1 in 4 people in the UK will experience mental health problems each year, the Government is seeking to ensure that mental health issues are treated equally to physical impairments.

Last week, Health Secretary, Jeremy Hunt, suggested that, if elected, the Conservatives would amend the Act. Specifically, they would remove the requirement that to qualify for employment protection against discrimination on grounds of mental health an individual must have had the condition for a period of 12 months or more.

Given the prevalence of mental health issues, this announcement could be concerning for employers. Indeed, it is not unusual for employees undergoing a disciplinary or performance management process to be signed off due to stress, and the proposed changes could significantly affect the way in which employers will need to manage those employees. In light of the impact on businesses, notwithstanding the commitment from Mr Hunt, the Government would be likely to consult on any proposed changes before bringing them into effect.

Mental Health and the Equality Act

Fulton and anor v Bear Scotland Ltd

The EAT has confirmed that a gap of more than three months between non-payments or underpayments of wages breaks the ‘series’ of deductions for the purpose of bringing an unlawful deductions from wages claim. In the context of holiday pay, what this means is that where there has been a gap of more than three months between underpayments of holiday pay, the earlier payments in the series will be time barred, although the Tribunal may exercise its discretion to extend time.

Fulton and anor v Bear Scotland Ltd

General Election countdown: Immigration – what’s next?

What’s going to happen to immigration in a post-Brexit era? That’s the million dollar question. Whilst there has been huge speculation as to what our immigration system and net migration figures are likely to look like going forward, little clarity has been provided as yet.

Following the leak of the draft Labour Manifesto, it has been reported that Jeremy Corbyn has agreed to toughen up his message on immigration. The Labour Party has acknowledged that free movement of workers is unlikely to be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be top of its list of priorities if it wins the election. It’s not really clear where that message leaves us when trying to predict what the new model is going to look like.

The Conservatives have indicated that they will stick by pledges made in David Cameron’s 2010 manifesto to cut migration to “tens of thousands”, despite having missed the target after making the same promise in 2010 and 2015. Again, it’s not clear from their rhetoric so far how they hope to achieve this, although Prime Minister May has reiterated that when we leave the EU we will have the opportunity to make sure we have control of our borders.

UKIP has gone one step further, as it is prone to do, pledging to cut net migration levels to zero within five years by asking skilled workers and students to get visas and banning migration into the UK for unskilled and low skilled workers. This time it’s not clear how UKIP intend to do the maths to achieve a net migration level of zero.

And then there’s the Liberal Democrats who are against stricter migration controls. Details of the party’s policies on migration are yet to be revealed but Tim Farron recently tweeted that “immigration is a blessing and not a curse”.

General Election countdown: Immigration – what’s next?

General Election countdown: Let’s get ready to rumble.

With just over three weeks until the General Election, the parties are getting ready to pack a punch. It seems that workers’ rights are high on the political agenda and likely to feature in all the main manifestos, official versions of which are (at the time of writing this post) yet to be released.

Prime Minister May has set out 11 key employment-related pledges and, not only has she guaranteed that all workers’ rights currently offered under EU law will be maintained in spite of Brexit, she has also committed to building on these entitlements. Amongst other things she has pledged that the national living wage will rise “in line with average earnings by 2022”. Her “new deal for workers” is also likely to include a statutory right to a year’s unpaid leave to care for a relative, two weeks’ statutory bereavement leave in the event of the death of a child, “better rights for workers in the gig economy”, and a commitment that workers’ pensions will be given new protections from “irresponsible behaviour” by bosses.

The Labour Party and the Greens are committed to increasing the minimum wage to £10 per hour. Both Labour and the Liberal Democrats have pledged to end the 1 per cent pay cap on public-sector pay and to ensure that these workers receive pay rises in line with inflation if they win the election. Indeed Labour’s manifesto is due to boast a 20-point plan, including a pledge to scrap employment tribunal fees, banning zero hours contracts, repealing the Trade Union Act 2016 and introducing four new UK-wide bank holidays. And there’s also a focus on family friendly rights, with both Labour and the Liberal Democrats having made commitments to extend paternity leave entitlement.

Following the recent introduction of gender pay gap reporting, the Conservatives and the Liberal Democrats have both said that they would bring in mandatory reporting on ethnicity gaps for organisations with 250 employees or more.

What seems to be apparent from the pledges is that there is in fact a significant overlap between the parties’ positions on worker rights. Whatever happens at the General Election on 8 June, we can expect to see some significant developments in employment law over the course of the next term.

General Election countdown: Let’s get ready to rumble.

Holiday: to roll over, or not to roll over – that is the question

The issue of holiday pay has been back in the ECJ, with the Court considering the case of King v The Sash Window Workshop Ltd and another.

In that case, the issue had arisen as to whether Mr King, a worker who had been mistakenly classified as self-employed, should be able to carry over holiday that he had been prevented from taking as a result of the misclassification.

The EAT held that a worker who is unable or unwilling to take holiday due to reasons beyond their control (extending beyond sickness) should be allowed to carry it over to the next leave year. The question of whether Mr King was in fact prevented from taking his leave was referred back to the Employment Tribunal.

The Court of Appeal made reference to the ECJ to answer the key issues in the case, specifically:

  1. Under the Working Time Regulations, does an individual have to take unpaid leave before being able to prove that they are entitled to pay for this?
  2. Where the worker doesn’t take leave they are entitled to, can the leave be carried over when the worker is prevented from exercising their right?
  3. If the leave does carry over, is this indefinite or for a limited period as in sickness cases?

The hearing took place on Wednesday and the judgment will be hotly anticipated, for a number of reasons. It has the potential to extend the right to carry over beyond incidences of sick leave. It is also interesting on its facts, in the context of the rise of the gig economy and the question of employment status.

One interesting point made by the European Commission was that, as the Working Time Directive is a health and safety measure, the burden of ensuring compliance should fall on the employer. As such, there is no burden on the employee to actually request carry-over. For updates on the decision, watch this space.

Holiday: to roll over, or not to roll over – that is the question