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Scotland – a separate system for global mobility?

The Times newspaper has revealed plans by Scottish ministers to pave the way for a bespoke immigration system. Scottish ministers are concerned that Brexit will lead to a fall in immigrant workers, who are vital to the Scottish economy. Alasdair Allan, the Scottish government's Europe minister, raised this as an issue to the Europe Committee earlier in 2017. He said: "The Scottish government will continue to call for a less restrictive and more humane system from the UK which recognises individual and demographic circumstances."
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Scotland – a separate system for global mobility?

Uber loses appeal on worker status

In the continuing worker status saga, Uber's recent appeal against the Tribunal ruling that its drivers are workers, rather than self-employed individuals, has been dismissed by the EAT.
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Uber loses appeal on worker status

The Real Living Wage has increased, but is it actually benefitting employees?

Earlier this week it was announced that the Real Living Wage has been increased from £8.45 to £8.75 per hour across the UK and from £9.75 to £10.20 per hour in London. The changes have been driven largely by inflation, higher private rents and transport costs, and the new figures have been calculated to reflect the actual cost of living required in order to sustain a decent quality of life in the UK and London.

However, the Real Living Wage remains voluntary, unlike the mandatory National Living Wage put in place by the Government. Further, despite more than one thousand employers signing up to pay the Real Living Wage since Living Wage Week last year (including Google and Ikea), 5.5 million people across the UK (comprising 21% of the workforce) are still being paid less than the Real Living Wage. One of the criticisms of the Living Wage campaign was that it targeted sectors that do not tend to have significant numbers of low paid staff – as such, it may not, as yet, have had the desired impact for those who need it the most.

Further, there have been questions around how employers are offsetting the additional cost of meeting the Real Living Wage – some employers have cut overall pay packages to mitigate the costs of increased pay, for example stopping overtime rates and cutting back hours. As such, the overall benefit being passed to employees is, in some cases, questionable.

On a more positive note, the increase in the Real Living Wage will see more than 150,000 employees get a pay rise, as more than 3,600 employers have now signed up to pay the Real Living Wage since it was introduced. Among these is Heathrow, which is set to become the first Real Living Wage airport by the end of 2020.

The Real Living Wage has increased, but is it actually benefitting employees?

Government update on settled status

The Government has published further details on how the new settled status scheme for EU citizens and their family members will work as the UK leaves the EU. In the technical document sent to the European Commission, the Government has pledged that this new system will be streamlined, low-cost and user-friendly and will be designed with input from EU citizens.

Following the UK’s exit from the EU, EU citizens will have up to two years to apply to stay in the UK and obtain settled status. Applications will be decided solely on the criteria set out in the Withdrawal Agreement and there will be no discretion for refusal based on other reasons. As yet, these criteria are not conclusive. However , the Government has confirmed that they will be simple and transparent and will minimise the need for documentary evidence. Unsuccessful applicants will have a statutory right of appeal in line with current rights provided by the Free Movement Directive.

There are also plans to set up a voluntary application process to provide those currently resident with the option to get new settled status at their earliest convenience. This is in recognition of the administrative challenge of granting status to potentially over 3 million EU citizens and their families.

 Negotiations between the UK and EU are ongoing with the next talks set to take place on 9 and 10 November.

 

Government update on settled status

Cost vs. benefit of Pension complaints

The Pensions Ombudsman has some key benefits as a venue for employees with pension grievances. Jurisdiction revolves around ‘maladministration’ which can be quite broad and for employees, costs aren’t a real issue.

However given the potential costs raised by these complaints employers and pension schemes often run up large legal and actuarial costs defending Ombudsman claims.

This can lead to some “challenging” cost to benefit analyses for Ombudsman complaints, particularly where there are arguments around payments for distress and inconvenience caused by proven maladministration.

An example being the recent High Court case of Smith v. Sheffield Teaching Hospitals NHS Foundation Trust [2017] All ER (D) 166 (Oct) where an employee who worked for the NHS lost the right to an unreduced pension due to bad information.

The Ombudsman and the Court both decided that she couldn’t have the unreduced pension, but that an award for inconvenience and distress was appropriate. The Ombudsman decided that she should get £500. The employee wanted £36k based on the Ogden tables. The Court decided it would award £2750.

The question is, how much time and effort did the employer end up spending on defending the claim? Given the outcome, it would have probably been better to carefully check the pensions communications in the first place!

Cost vs. benefit of Pension complaints

#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

Risk assessments for breastfeeding mothers

The European Court of Justice (CJEU) has held, in the recent case of Otero Ramos v Servicio Galego de Saude, that failure to conduct an appropriate risk assessment for a breastfeeding employee amounts to sex discrimination.

The employee in this case was an accident and emergency nurse who had made a request for an adjustment to her working pattern on account of her breastfeeding. Her concerns included the complex shift rotation system, exposure to ionising radiation, healthcare-associated infections and stress. She requested an adjusted shift pattern and preventative measures to be implemented. Her employer issued a report stating that her work did not pose any risk to her breastfeeding her child and rejected her request for an adjustment to her working conditions.

The employee filed a claim for sex discrimination against her employer, alleging that the risk assessment carried out by her employer did not comply with the requirements of EU law which provides measures to improve health and safety for pregnant and breastfeeding workers. The CJEU found that the employer had failed to perform an individual assessment of the employee’s circumstances, as required under the legislation, and rather it had conducted an assessment of the employee’s role as an accident and emergency nurse.

Accordingly, the CJEU held that failure to properly assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of EU law must be regarded as less favourable treatment and constitutes direct sex discrimination.

Risk assessments for breastfeeding mothers

Publication of gender pay details

To date most companies have been slow to release details of their gender pay gap with only 176 companies publishing their data.

With some 8,800 yet to reveal their figures, Theresa May has called for more companies to report on their gender pay gap to address the inequality in the workplace. She said that, “the gender pay gap isn’t going to close on its own” and that “we all need to be taking sustained action to make sure we address this.” Nevertheless, the only Government Department to have so far published their figures is the Department for Education which has a gap of 5.9%.

So far a handful of City businesses have published details of their gender pay gap and the results are as anticipated with reported median gaps of between 24% and 35.7%.

The Prime Minister’s announcement comes in the wake of a report, published by the World Economic Forum, which showed that the UK has dropped from a ranking of 9th in the world to 15th in respect of its gender gap. This ranking comes after a study from the Chartered Management Institute which showed a 27% pay gap among the UK’s 3.3 million managers, where men outnumber women three to one.

While the gender pay gap reporting obligations are an important step in the right direction, it seems that much work is still needed to reduce the gender pay imbalance in the UK.

Publication of gender pay details

Sexual harassment in the workplace

The recent allegations against US film producer Harvey Weinstein have brought the issue of sexual harassment at work into the global spotlight with an overwhelming number of women across the globe sharing their experiences of inappropriate treatment at the hands of their employers. This has prompted discussion of the obstacles faced by women trying to develop their careers. It is becoming clear that in many sectors there is a culture in the workplace of ignoring or trivialising sexual harassment.

A recent BBC survey, commissioned in the wake of the Weinstein allegations, has found that half of the women interviewed had experienced sexual harassment at work or place of study. The harassment ranged from inappropriate comments to sexual assault with 30% of the women being targeted by a boss or senior manager.

What has emerged over the recent weeks is that simply having a sexual harassment policy in place is not enough to address such a prolific problem in the workplace. Policies will only be effective if they are “lived” and there is a culture that does not ignore the behaviour the policy is designed to prevent. Perhaps now is the time for a shift in emphasis from attempting to avoid a harassment claim, to preventing the harassment occurring in the first instance.

Sexual harassment in the workplace

Social media: the opportunities and the risks

Find out more about the latest social media/employment law cross-over case law, and the importance of having a social media policy in place, in my latest article for People Management.

http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/10/23/what-does-case-law-say-about-social-media.aspx

Social media: the opportunities and the risks