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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?

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

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.

Dress code in the workplace: keep your high heels on!

The government has undertaken to produce new guidance on workplace dress codes this summer following a joint report published by the Petitions and Women and Equalities Committees (the Committees). The report called for urgent action to improve the effectiveness of the Equality Act 2010 (the Equality Act) in preventing discriminatory practices of dress at work.

The issue attracted the public’s attention last year when Nicola Thorp brought a petition to Parliament with more than 152,000 signatures supporting a change in the law on dress codes. Nicola was sent home from work for refusing to wear high heels on her first day as a temporary receptionist.

In response to the joint report, the government rejected calls to ban employers from forcing women to wear high heels. It stated that, while the Committees had uncovered practices which appeared sexist, unacceptable and potentially unlawful, a redress scheme already existed under the Equality Act. The government also rejected calls to increase fines for employers who have sexist dress codes, arguing the current fines of up to £30,000 for the most serious discrimination were “proportionate and fit for purpose”. A proposal to allow tribunals to issue injunctions banning sexist dress codes was also rejected.

For now, we await the government guidance on dress codes. Meanwhile, employers are encouraged to review whether their dress codes comply with the Equality Act.

Dress code in the workplace: keep your high heels on!

Matthew Taylor’s report on the gig economy – emergent themes

Matthew Taylor, former head of Blair’s Number 10 Policy Unit, is due to publish a report on the gig economy this summer. A number of themes have emerged from his interviews and discussions with the press to date.

His report will look at the following issues:

  • Security, pay and rights
  • Progression and training
  • Balance of rights and responsibility
  • Representation
  • Opportunities for under-represented groups
  • New business models

The report will emphasise that it is not just quantity of work that matters but also the quality of work. Mr Taylor wants to ensure there are greater opportunities for progression and fulfilment in the self-employed and worker economy. He wants to strengthen employee voice in the workplace.

His research will recognise that employers want clearer rules on how to determine self-employed, worker and employee status. To that end, it is likely to foreground the idea of the “dependent contractor” (a term currently used in Canadian law) as an indicator of worker status.

His investigations look into a diversity of self-employment roles, and will take account of differences between, for example, the construction and healthcare industries.

Finally the report will also disclose the extent to which tax treatment and social security rights are a big influence on employment trends. We can assume that Matthew Taylor saw the now cancelled tax reforms to self-employed workers as a step in the right direction. Although he cannot make recommendations on tax, he is likely to want to nudge tax treatment in an employee-friendly direction as well as recommend a strengthening of pension entitlements for those working in the gig economy.

Matthew Taylor’s report on the gig economy – emergent themes

The Great Divide

With reporting obligations due to come into effect from 6 April 2017, the gender pay gap debate has taken centre stage over the past year. With the UK gender pay gap still sitting at over 18 per cent, it is unsurprising that this has been the focus of political and media attention. The purpose of the regulations is not just to force employers to mechanically calculate their pay and bonus gaps, but also to encourage employers to look inwards to identify why any gaps are arising and what steps can be taken to achieve parity. Considering the business case for closing the gender pay gap is tantamount to the success of this latest government initiative.

But the gender gap is not the only gap which affects our productivity in the UK. A government backed review has found that helping black and minority ethnic (BME) people to progress in their careers at the same rate as their white counterparts could add £24bn to the UK economy each year (a boost to GDP of 1.3 per cent).

The report by Baroness McGregor-Smith, who became the first Asian woman to run a FTSE 250 company when she took over at Mitie in 2007, found that people from BME backgrounds were still often disadvantaged at work. Whilst the Baroness acknowledged that this is still in part down to overt race discrimination, she said, for the most part, the differential treatment is actually down to unconscious bias. She also noted that the UK has a structural, historical bias that favours certain individuals.

The review found that employment rates amongst people from BME backgrounds were 12 per cent lower than for white counterparts. It also found that just six per cent reached top-level management positions. But this isn’t new. A report by the TUC in February last year identified that staff from all ethnic minority backgrounds, qualified to degree level, faced a 10 per cent pay deficit in comparison to their white counterparts, with the figure rising to 17 per cent for those with A-levels only.

Of course the reasons for the gap are not straightforward. However, Frances O’Grady, TUC General Secretary, stated that “this is not just about education, but about the systemic disadvantages ethnic minority workers face in the UK”. A study by the Institute for Social and Economic Research at the University of Essex found British ethnic minority graduates were between five and 15 per cent less likely to be employed six months after graduation than their white peers at the same institutions.

One of the main recommendations of the Baroness’ report is legislation to make firms with more than 50 workers publish a breakdown of their workforce by race and by how much they are paid. She suggested that firms should draw up five-year diversity targets and nominate a board member to deliver them. She also noted that she wants to see diversity as part of public procurement guidelines.

Government ministers have been quick to respond in support of the general recommendations of the report but they have ruled out introducing new legislation. Instead, Business Minister, Margot James, has asserted that “the best method is a business-led, voluntary approach and not legislation as a way of bringing about lasting change.” This recommendation is not however supported by the history of gender pay gap reporting.

The 2010-2015 coalition government initially decided to introduce gender pay reporting on a voluntary basis, in the “Think, Act, Report” scheme. Whilst 200 firms signed up to the initiative’s principles, only a handful actually published their gender pay gap statistics. With pressure mounting on the government, the then Prime Minister, David Cameron, announced that the government would “end the gender pay gap in a generation”; a bold statement and one that he could only dream of achieving if it was specifically legislated for. Here’s hoping the new regulations achieve that honourable goal.

But the question is, in light of the gender pay gap experience, can we expect new legislation providing for race/ethnicity pay gap reporting? In the medium term at least it seems likely. By that point, employers will hopefully have developed the infrastructure that will mean that calculating these gaps and reporting on them should not be too much of an onerous task. However, employers should ideally be taking informal steps to assess their race/ethnicity pay gap now and should start to consider initiatives that they might take to close the gap within their workforce. That way, they can be ahead of the curve if and when race/ethnicity pay gap reporting obligations do come into force.

The Great Divide

High heels, dress codes and discrimination: government recommendations published

The House of Commons Petitions Committee and Equalities Committee have published a joint report, ‘High heels and workplace dress codes’, which recommends that the government urgently reviews the effectiveness of discrimination law to challenge inappropriate dress codes. The report is adamant that the requirement for women to wear high heels is discriminatory and damaging to female workers’ health and wellbeing. Further,  the report is critical of the lack of effective sanctions for employers who impose discriminatory dress codes in the workplace.

 
What next?
The deeper issue here is the scope of what is potentially discriminatory. Should women to be required to wear make-up, have regular manicures or have a certain skirt length at work? Should men not be allowed facial hair? Updated guidance on these controversial issues is due to be published by Acas and the Health and Safety Executive by July 2017 and we will be following with interest.

 
The July 2017 guidance is also expected to recommend more significant financial penalties and the option of bringing an injunction against employers who impose discriminatory dress codes (although we question how effective an injunction would be in practice – should all workers be made to wear high heels going forward?)

 
What should employers do now?
Broadly, the law states that a provision, criterion or practice is indirectly discriminatory if it puts one sex at a particular disadvantage and such discrimination cannot be justified as a proportionate means of achieving a legitimate aim. There is a fine balance between a discriminatory dress code and a requirement for workers to dress appropriately and professionally for the workplace. Employers should be cautious and consider whether their dress codes could be considered humiliating, degrading to or sexualising women when compared to men (or the other way around). Careful review is particularly important in anticipation of more severe penalties being imposed this summer.

High heels, dress codes and discrimination: government recommendations published

Consultation launched on Employment Tribunal fees

On 31 January 2017, the government published its review of the Employment Tribunal (ET) fees system. As our readers will be aware, the current system of requiring claimants to pay ET fees has faced significant criticism as creating a barrier to access to justice. The government has reviewed the situation and found that the introduction of fees has “broadly met its objectives”. The lengthy report explains that, among other reasons, the introduction of the successful early conciliation scheme has contributed to the decline in potential claims proceeding to the ET. Further, that while people may have been discouraged from bringing claims because of the applicable fees, “there is no conclusive evidence that people have been prevented from bringing a claim”.

Despite the glowing praise for the current system, there are still a few areas that the government have found to be unsatisfactory. First, as of 31 January 2017, no fees are required to bring a claim related to the recovery of a redundancy payment from the National Insurance Fund. The government has recognised that early conciliation may not resolve this dispute via early conciliation and that, as the employers are insolvent, the claimants will be unable to recover their fees from their employers. Second, the current Help with Fees scheme (which helps claimants with fee remission) is proposed to be extended, so that workers who earn approximately the National Living Wage, will be able to benefit from this scheme and have support with fees.

Please access the report (and respond to the consultation by 13 March 2017) by clicking on the link.

Consultation launched on Employment Tribunal fees