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Redressing one-sided flexibility and further proposals to support families

There has been a flurry of activity in Theresa May’s last week in office, including the government issuing further consultations under the auspices of the Good Work Plan. One consultation deals with one-sided flexibility and the other invites responses on several proposals to support families.
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Redressing one-sided flexibility and further proposals to support families

#metoo – formal consultation on tackling sexual harassment now published

The previously anticipated consultation paper on tackling sexual harassment in the workplace has now been published by the government. The two-part consultation focuses on how to make employers respect and prioritise the issue. One part of the consultation is a simple question format aimed at individuals who have experienced such issues in the workplace. The other part covers the more technical legal aspects. Interested parties have until 2 October 2019 to contribute to the consultation.

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#metoo – formal consultation on tackling sexual harassment now published

Is it still viable to run an internal disciplinary process alongside criminal proceedings?

The Court of Appeal's decision in the case of North West Anglia NHS Foundation Trust v. Gregg [2019] EWCA Civ 387 brings some welcome reassurance to employers that it remains viable to run internal disciplinary processes alongside criminal proceedings. Only in very limited circumstances is there any requirement on an employer to delay pending the outcome of those criminal proceedings.
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Is it still viable to run an internal disciplinary process alongside criminal proceedings?

Expanding the female talent pipeline – new government guidance

The Government Equalities Office has published some simplified guidance on actions that can help support women's progress in the workplace.
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Expanding the female talent pipeline – new government guidance

Gender Pay Gap Reporting Response

On 17 January 2019 the House of Commons' Business, Energy and Industrial Strategy (BEIS) Committee published a Government response to its report on gender pay gap reporting.
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Gender Pay Gap Reporting Response

Trade unions on the decline?

Trade unions saw a large decline in their membership last year (losing 275,000 members last year) and reducing their overall numbers to 6.2 million according to the Office for National Statistics. The largest decreases were in the pubic sector with union membership falling by 209,000 to 3.6 million. However, there was also retraction in private entities by 66,000 to 2.6 million.

Trade union leaders have plenty to say about the reason for the decline. They have pointed to the Conservative government, which they say has a policy of “shrinking the union base” and austerity. They have said that cuts have meant a loss of good jobs being replaced by a large proportion of insecure jobs. Of course, the trade unions themselves might not be entirely without blame. The decline may represent some trade union members’ unhappiness with what their trade union is offering, or feeling that their trade union is not useful in today’s society. There have been several very public trade union actions in the past few years including the rail strikes and junior doctors strikes. The duration and on-going nature of the rail strikes, have proved unpopular with the public. There were challenges in the junior doctors dispute to the trade unions’ approach to spin, which some say resulted in a reluctance to resolve the issues amongst doctors. Taking industrial action aside, issues such as the gig economy also present a challenge to trade unions. Having a flexible workforce, often without a fixed base, makes it difficult for trade unions to reach out with their members. This is particularly so, if trade unions do not embrace social media and other technological advancements. Trade unions are not generally known for being at the forefront of developments, but that may need to change, if they do not want to see further decline. Employers who recognise trade unions may see this decline as a positive development, but given that trade unions may be feeling the need to emphasise their worth, it may not all be plain sailing.

Trade unions on the decline?

Older and wiser?

After a call from Andy Briggs, the government’s champion for older workers to increase the number of mature workers by 12% by 2022, a group of businesses: Aviva, Atos, Barclays, the Co-operative Group, Home Instead Senior Care, the Financial Services Compensation Scheme, Mercer and Walgreens Boots Alliance, have publically committed to tackling a potential skills gap by recruiting more individuals over 50 years old. Both transparency and target setting are quite fashionable at present following gender pay reporting. However, whether there will be any real development in this area remains to be seen. With Brexit on the horizon, and uncertainty about any restrictions on free movement, the pool of home-grown talent in their 50’s and older should sensibly be considered. Notwithstanding this, there is some tension between this drive and the March 2017 Advocate General’s opinion in the European case of Fries v. Lufthansa CityLine GmbH C-190/16 that an age limit of 65 imposed on EU commercial pilots is not discriminatory. In that case the Advocate General felt that the age limit was both appropriate and necessary to achieve the aim of air traffic safety. He said that there could hardly be any question that capability declined with age. For many working in non safety critical areas employers should be able to manage capability issues by pro-actively applying their capability processes at an early stage.

Older and wiser?

Sisters doing it for themselves?

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Sisters doing it for themselves?

A growing gig economy

In Boxer v. Excel Group Services Ltd ET/3200365/2016, Mr Boxer brought a successful claim against Excel Group Services Ltd (Excel) for one week’s holiday pay. Mr Boxer had been a cycle courier for Excel since September 2013. His contract described him as a “subcontractor” and he was registered as self-employed with HMRC. Excel did not pay Mr Boxer when he took a week’s holiday and so he decided to claim for his holiday pay.
The Employment Tribunal had to decide whether Mr Boxer was a “worker” under section 230(3)(b) of the Employment Rights Act 1996 and regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) in order to determine whether his claim could proceed. The Employment Tribunal concluded that Mr Boxer was a worker. The key considerations for the Employment Tribunal in determining this were:

  • he signed a contract because he had no choice: there was no negotiation or tendering process;
  • he worked five days a week, nine hours a day, and had to be available during the working day;
  • while he enjoyed some flexibility in respect of time off or changing hours, this had to be by arrangement and with notice;
  • he was paid a fixed rate for his work, which was non-negotiable;
  • he did not have to bear the cost of any damage in transit or pay insurance; and
  • not only was he expected to work and in turn was entitled to expect a steady stream of jobs, he was also expected to stand by between jobs and wait for the next one.

Mr Boxer’s evidence in this case was uncontested as Excel had gone into liquidation. Nonetheless, the case is a further example of a (first instance) claim against a courier company and application of the Court of Appeal decision in Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51. To see our previous blog post on Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51, please click here.

A growing gig economy

Its all change in employment law in April…

April is a key month for employment law changes and this April is no different. 6 April is “D-Day” for a number of significant changes. By way of reminder:

1 April

  • National minimum wage – the National Living Wage (for workers aged 25 and over) increased from £7.20 to £7.50 and there were also changes in the other bands.

Weeks commencing after 2 April

  • Cap on a week’s pay  – the cap on a week’s pay (which is used in statutory redundancy pay calculations for example) increased from £479 to £489.

5 April and onwards

  • Gender pay gap reporting – employers with 250 employees should have collated their relevant data on the first annual “snapshot date” yesterday. Today the work on calculations can begin! Private employers have a 12 month window (4 April 2018) before calculations must be published on the employer’s website and the relevant government website. Remember that public sector employers have a earlier snapshot date (31 March), their calculations need to be published by 30 March 2018 and every four years thereafter.

From 6 April

  • Unfair dismissal compensatory award – the statutory cap increases from £78,962 to £80,541.  Don’t forget that the cap will be one year of the employee’s gross salary if lower.
  • Apprenticeship levy – UK employers in the public and private sectors with annual wage bills of £3 million or more have to pay their monthly levy payments;
  • Immigration skills charge – employers who sponsor workers under tier 2 will have to pay £1,000 per year, or £364 if they are a small employer or a charity;
  • IR35 – new rules apply to public authorities paying personal service companies or other intermediaries. The public authority will need to make tax and National Insurance deductions as appropriate;
  • Salary sacrifice – relief on benefits in kind provided via salary sacrifice arrangements is being scaled back for benefits entered into from today.
Its all change in employment law in April…