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How to be transparent about your gender pay gap reporting

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How to be transparent about your gender pay gap reporting

TIME’S UP

Back in November I blogged about #metoo, the hashtag used to raise awareness of and denounce sexual assault and harassment. This was initially in relation to the abuse of power in the entertainment industry but the hashtag has spread to include not only harassment in the workplace but in every aspect of everyday life. TIME'S UP is a response to #metoo – taking the awareness raised by the hashtag and looking at what can be done to stop sexual harassment for good.
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TIME’S UP

#MeToo

In the light of news-breaking allegations against Harvey Weinstein (see the Nov 2 blog post) more than 30,000 women joined the "#MeToo" campaign to raise awareness about sexual harassment in the workplace. Originally started by the actress Alyssa Milano, this campaign was joined by a large number of women from around the world, including Anna Paquin, Debra Messing, Gabrielle Union, Lady Gaga and others. Since the hashtag appeared on Twitter, it was used 850,000 times within the first 48 hours.
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#MeToo

Mind the gap

Employment law issues seem to be rife with gaps at the moment – we have already reported on the gender pay gap brought to the fore by the gender pay gap reporting regulations which came into force on 6 April 2017. However, it looks like we are now dealing with another gap – the skills gap commentators believe will be brought about when the UK exits the EU.
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Mind the gap

When can a mobility clause be relied upon?

Find out here in Emma Carter’s article for People Management:

Mobility clauses

When can a mobility clause be relied upon?

We need a holiday from the holiday pay cases!

In the latest in a number of cases dealing with the calculation of holiday pay, the Employment Appeal Tribunal ("EAT") has held, in the case of Dudley Metropolitan Borough Council –v- Willetts, that pay for voluntary overtime normally worked constitutes "normal remuneration" for the purposes of calculating holiday pay provided for in the Working Time Directive (20 days).
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We need a holiday from the holiday pay cases!

Assuming the best…

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Assuming the best…

SOSR – A low threshold for a fair dismissal?

Of the five fair reasons for dismissal, ‘some other substantial reason’ (SOSR) is often viewed as a ‘catch all’ justification for dismissal. It does not give an employer freedom to dismiss for an irrelevant or trivial reason. However, the threshold to meet in order to be able to rely on an SOSR dismissal appears not to be prohibitively high in light of the recent case of Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA.
Ms Ssekisonge was a registered nurse who worked for a number of NHS Trusts. She came to the UK and obtained indefinite leave to remain and then British citizenship. Her citizenship was revoked when the Home Office had concerns regarding her identity. Ms Ssekisonge did, however, retain her leave to remain. Following a disciplinary process, the NHS dismissed her, again due to concerns over her identity.
The Employment Tribunal found the principal reason for the dismissal was that the NHS could not determine Ms Ssekisonge’s identity and the risk that this posed was sufficient to justify her dismissal for SOSR. Ms Ssekisonge appealed the decision but the Employment Appeal Tribunal (EAT) upheld the first instance decision. Certainty over an employee’s identity was essential for a nursing role. The EAT rejected an argument that employers should go further than they might otherwise do when dismissing for SOSR where there is no fault on the part of the employee.
It is important to remember each case is fact sensitive. In particular the claimant in this case was waiting for the outcome of the Home Office investigation in relation to her identity and the NHS Trust was not expected to investigate further in the meantime. Employers should also be aware of their duties to check a job applicant’s ‘right to work’ documents.

SOSR – A low threshold for a fair dismissal?

The proposed shake up of Employment Tribunals

Digital claims, the delegation of authority to caseworkers and a tailored composition of tribunal panels are just three of the proposed reforms to Employment Tribunals.

On 23 February 2017, the government published its response to the MoJ and BEIS’s joint consultation aimed at simplifying and speeding up the resolution of disputes. The consultation forms part of a wider initiative to review the entire civil justice system.

The government confirmed its commitment to the digitisation of claims, recognising that claims should be made and processed online. Depending on the nature and complexity of the claim, some cases would also be suitable for online decisions. Recognising the inevitable risks of new IT systems creating unforeseen problems, the reforms will take place over several years and digital transformation will be the latter part of the programme.

The government also recognised the importance of providing procedural flexibility to meet future challenges by supporting the delegation of tasks to tribunal caseworkers who would be legally “trained or qualified”. Noting the concerns raised around ensuring that only those matters suitable for delegation are, in fact, delegated, the government expects that any delegation implemented would follow further engagement between the Senior President of Tribunals, the Employment Tribunal judiciary and Tribunal users.

The government also intends to proceed with its proposal for the Senior President of the Tribunals to have responsibility for deciding the panel composition of the Employment Tribunal and the Employment Appeal Tribunal. We will see a new Employment Judge and a legal practitioner with specific experience of the Employment Tribunal introduced to the Tribunal Procedure Committee. Obviously these reforms will take some time to implement but the proposals mark a long overdue overhaul of processes that have been in place for a very long time. A move to modernise the more antiquated systems can only be welcomed, as long as the appropriate level of care is taken to ensure that the new processes work.

The proposed shake up of Employment Tribunals

Uber and the Gig Economy – is the law keeping up?

After a preliminary hearing spanning seven days (including reading the five-volume bundle and time for deliberation), an Employment Tribunal has handed down its much anticipated ruling that Uber drivers are workers rather than independent contractors. The drivers can, therefore, benefit from statutory protections, such as 5.6 weeks’ paid annual leave each year, a maximum 48 hour average working week (in the absence of an opt-out), rest breaks, the National Minimum Wage, potentially the National Living Wage, and the protection of the whistleblowing legislation.

The Tribunal examined in detail Uber’s business model but rejected Uber’s assertion that it is a provider of technology services rather than transportation services. Passengers can order a taxi via Uber’s smartphone app and Uber’s drivers can then decide (with the extent of the autonomy of such decision one of the factors questioned in this case) whether to drive that passenger to their requested destination and, if they do, the route to be taken. The passenger pays the fare to Uber by credit or debit card, Uber takes a 25 per cent service fee, and pays the balance of fares to the driver on a weekly basis.

The Tribunal looked at various aspects of the arrangement as it operates in reality, rather than as described in Uber’s contracts, to determine whether the drivers are workers as opposed to truly independent contractors. For example, the Tribunal noted the fact that, if a driver declines three trips in a row whilst logged on to the app and so ostensibly available to work, he will be forcibly logged out of the app for 10 minutes. The Tribunal also took note of the fact that Uber prohibits drivers from agreeing with the passenger a fare which is higher than that set by Uber and that Uber usually bears the cost of any cleaning necessitated by a passenger soiling a vehicle.

In summary, the Tribunal concluded that Uber is a taxi service and employs drivers to provide that service in a way which, in a number of key respects, Uber controls. Consequently, the Tribunal held that each of the drivers in this case fell squarely within the statutory definition of a worker as an individual who works under a contract to personally perform services for another party to the contract (Uber) which is not a customer of a business undertaking carried on by the individual. However, we note that this contract did not actually exist (in the sense that no such express agreement had been put in place) but had to be inferred by the Tribunal from the facts as found by it. It may be that the scope for doing so will be one of the grounds on which Uber appeals against the Tribunal’s judgment.

The Tribunal went on to find that, whilst the drivers are under no obligation to switch on the app through which their instructions are received and there is no prohibition against dormant drivers, once the app is switched on, the driver is in the territory where he is licensed to operate and he is able and willing to accept assignments, he is then on working time until one of those conditions ceases to apply.

For the purposes of the National Minimum Wage Regulations, the Tribunal stated that the work carried out by drivers does not constitute “time work” or “output work”, as the driver’s entitlement to pay is not limited to when he is carrying a passenger and does not depend on him completing a particular number of trips. Accordingly, the work was classified as “unmeasured work”, so it is likely that the relevant rate of pay will be calculated by reference to the periods of time when the driver is logged on to the app in his licensed territory and ready to accept passengers, rather than just the time spent driving passengers to their destinations.

This decision is extremely fact specific. Furthermore, Uber has already announced its intention to appeal against it. The outcome is likely to have wide-ranging implications for the concept of the gig economy, the proponents of which claim that it benefits individuals who want the flexibility to work how, when and for whoever they please, in an increasingly interconnected and digitally virtual employment sphere.

The employment landscape is changing rapidly and the challenges to the existing statutory framework presented by the Uber case could be seen as demonstrating that the law also needs to change in order to keep up. In support of its decision, the Tribunal cited an earlier judgment which identified the underlying policy behind the definition of “worker” as the need to extend statutory protection to individuals who are vulnerable to exploitation in the same way as employees. Whilst this is clearly not a new issue, as is evidenced by some of the previous case law referred to in the Uber judgment, perhaps in light of the rise of the gig economy, such policy needs to change and the law, therefore, needs to change with it.

Uber and the Gig Economy – is the law keeping up?