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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?

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.

Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

The Rehabilitation of Offenders Act 1974 provides that criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be “spent” after specified periods of time. Spent cautions and convictions will generally not need to be disclosed. However, a person applying for an excepted post (including work with children or vulnerable adults) may be asked whether they have any unspent convictions and cautions. In addition, excepted posts qualify for checking through the Disclosure and Barring Service (DBS) by means of a standard or enhanced DBS certificate.

In 2013 the government amended the filtering rules for criminal record checks to allow offenders with single convictions that are non-violent, non-sexual and non-custodial to have the offence filtered out of a DBS check after 11 years (unless the offender was a minor when they committed the offence, in which case this time period was reduced to five years and six months). However no such provision was introduced for persons with multiple offences, meaning that where an individual has more than one conviction (of any kind) these must be disclosed. Please note that the filtering rules are separate to the rules in relation to spent convictions.

In R (on the application of P and others) v. Secretary of State for Justice and others, the Court of Appeal (the Court) held that these filtering laws are incompatible with human rights legislation as they only benefit single conviction offenders and fail to adequately protect other individuals’ right to a private life.

This case involved an individual suffering from schizophrenia who had multiple cautions for shoplifting as well as a conviction for a bail offence; as a result of these she was unable to get a teaching assistant role. The Court rejected the government’s case that it was clearer to have a ‘no multiple offenders filter’ rule than to spend more time adjusting the filter depending on the circumstances. The judge stated:

“I recognise that where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers. The difficulty with the bright line, however, is that it is not a necessary inference that two convictions do represent a pattern of offending behaviour; indeed on many occasions they will not.”

The Court went on to say that it should be possible to create a filter that takes into account the nature of any offences as well as the length of time that has passed since any convictions; alternatively a mechanism for review in specific circumstances could be introduced (as is the case with removal from the sex offenders’ list).

As a result of this case there are now calls for the government to reform the criminal records system, although this will, in all likelihood, take a back seat in light of the snap election and Brexit. However if such changes are made it is likely that (1) fewer offences would appear on the criminal records register; (2) individuals would receive a greater degree of protection from minor offences that occurred in the past; and (3) there would be less serious implications in terms of employment prospects for minor re-offending.

Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

The gig economy: “Free-riding on the welfare state”

Due to the calling of a snap general election, the Work and Pensions Committee has curtailed its inquiry and has now published its report on the gig economy and its use of self-employment. The report is somewhat damning of companies that utilise the gig economy model. The report concludes that:

“Self-employment is neither inherently good nor bad. It can represent entrepreneurial zeal and a highly desirable culture of self-reliance. It can also be deeply negative, allowing companies to evade responsibility for their workers’ wellbeing and increase their profits. It is incumbent on Government to close loopholes that incentivise this behaviour.”

The main points that the report raises are:

1. Welfare safety net

Employee status and its corresponding rights help to protect (1) individuals from personal hardship and (2) the welfare state from incurring costs in relation to such individuals. On the other hand, self-employed individuals do not have such rights and therefore neither they nor the welfare state are protected. The report argues that self-employed status is being used to deprive individuals of their rights in the name of “flexibility”, and in doing so companies are refusing to contribute to society by protecting those individuals and by contributing substantially less by way of National Insurance contributions (NICs). This is a vicious circle as NICs then bring in less revenue to the welfare pot but there is a larger demand for support as a result of such pseudo-self-employment.

2. NICs

Our welfare state is founded on the principle that everyone contributes. In the past, self-employed individuals received less support than employees, which is why their NICs were substantially lower. However, the reality today is that access to the services that NICs fund is substantially the same for both the employed and the self-employed. The report therefore recommends that the new government consider how it can equalise NICs to ensure that the welfare pot is sufficiently funded.

3. Low levels of retirement saving by the self-employed should be tackled

The report argues that the current framework does not do enough to encourage self-employed people to save for retirement, which, in turn, increases the likelihood that they will need to depend on the welfare state in the future. This could lead to a welfare state crisis whereby there are not enough funds to meet demand. The report suggests looking at tax reforms to encourage greater contributions to pensions by the self-employed.

4. Assumption of worker status

The report recommends that the default position should be an assumption of worker status. The onus would then be on employers to provide basic rights and benefits (for example, national minimum wage and paid holiday). If they wanted to argue that individuals were self-employed the burden of proof would rest with them rather than the individuals.

5. Encouraging real self-employment

Job centres focus on getting individuals into employment (rather than self-employment). The report suggests that whilst employment may be suitable for most individuals, more support should be available for helping people launch (or re-launch) self-employed careers. This would avoid stifling genuine entrepreneurs and viable new businesses.

It will be interesting to see how the findings of this report and the findings of the upcoming Taylor review of modern working practices compare. However there seems to be increasing pressure on government to ensure that gig economy workers are afforded at least basic rights. This, along with a growing body of case law from the employment tribunal that is critical of the gig economy model, means that employers utilising such a model should start to look at ways to address these problems before they are forced to.

To read the report in full click here.

The gig economy: “Free-riding on the welfare state”

Multiple choice test = indirect disability discrimination

Multiple choice tests are commonplace in recruitment processes and are a relatively easy way for employers to whittle down numbers, especially where there are large numbers of applicants. However the case below highlights the potential dangers of such tests.

In Government Legal Service v. Brookes the claimant, who has Asperger’s Syndrome, applied to the Government Legal Service (GLS) for the position of trainee solicitor. The first stage in the recruitment process was to sit a situational judgement test (SJT), which asks a series of multiple choice questions and is aimed at testing candidates’ ability to make effective decisions. Candidates need to achieve a certain score to move on to the next stage. Asperger’s tends to result in difficulties in social interaction and non-verbal communication and can cause difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. As a result of this the applicant requested that she be able to provide short narrative answers to the questions in the SJT, rather than have to select from multiple choices. GLS refused this adjustment, stating that the multiple choice layout on a computer was the most cost-effective way of testing candidates and also removed human error from marking. Instead, GLS said that she could take the test without a time limit. The claimant took the test and narrowly missed the score which would have enabled her to proceed to the next stage. She subsequently brought claims of indirect disability discrimination and of failure to make reasonable adjustments.

The Employment Appeals Tribunal (EAT), upholding the Employment Tribunal’s (ET) decision, refused GLS’ appeal and held that the claimant had been subjected to indirect disability discrimination and discrimination because of something arising in consequence of her disability. It also found that GLS had failed to provide reasonable adjustments. The main points that the ET and the EAT made are as follows:

  • The provision, criterion or practice (PCP) of requiring all applicants to take and pass the SJT put people with Asperger’s at a particular disadvantage. It also put the claimant herself at a disadvantage.
  • There was no alternative explanation put forward by GLS as to why the claimant had failed the test.
  • There was a legitimate aim (testing competency of potential trainees); however, as there was a less discriminatory way of achieving the aim (i.e. letting the claimant provide short narrative answers as she had requested), the means of achieving that aim were not proportionate.

The claimant was awarded compensation (the relatively low amount of £860) and the ET recommended that GLS (1) apologise in writing and (2) review its recruitment procedures in relation to people with disabilities. This of course does not account for the impact of the reputational damage caused by the publicity surrounding this case.

This case is a good reminder that, if you are an employer that uses testing in your recruitment process, care needs to be taken to ensure that the method of testing does not disadvantage applicants with disabilities and that reasonable adjustments are considered and implemented wherever possible.

Multiple choice test = indirect disability discrimination