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Emplaw Monthly- End of November 2021

NEW FROM OUR AUTHORS

Class pay gap reporting: a social mobility tool for employers?

This article from Emplaw authors Lewis Silkin considers the drivers behind an increasing number of organisations reporting voluntarily in this area as a measure to address social mobility disadvantage in the workplace and identifies the legal and practical issues employers need to consider.

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Permanent Health Insurance Benefits – Why the Employment Contract is key!

A useful article on this tricky area from Moorcrofts, authors of the Emplaw law cards on Contracts of Employment.

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The Bribery Act 2010- A summary 10 years on.

To mark the 10-year anniversary, Emplaw authors Gowling WLG  have provided a summary of the Act and the offences, as well as some practical tips for businesses seeking to ensure they don't fall foul of its requirements.

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NEWS

EMPLOYER/ADVISOR NEED TO KNOW

Fire and re-hire

A Private Member’s Bill is blocked and ACAS guidance is updated.

Fire and re-hire: Government blocks law to curb the practice

The government has blocked a Private Member’s Bill to curb businesses' ability to lay staff off and take them back on different - often worse - pay and terms. The practice - known as "fire-and-rehire" - has caused several industrial disputes. Labour's Barry Gardiner said the government was "cowardly" for using Parliamentary tactics to stop his bill in its tracks but No 10 said it wanted new guidance for companies, rather than a law.

https://www.bbc.co.uk/news/uk-politics-58997916

Acas advice on hire and re-hire

New advice has been published aimed at helping employers maintain good employment relations and reach agreement with staff if they are thinking about making changes to their contracts. This follows the Acas publication of evidence on the use of fire and rehire practices at work in early Summer (see the report in June’s Emplaw monthly). In response to the evidence, the government asked Acas to produce guidance to help employers explore all other options first before considering fire and rehire to change employee contracts.

https://www.acas.org.uk/acas-publishes-advice-to-help-employers-avoid-fire-and-rehire-practices

Stop asking about salary history, employers urged

Asking about salary history UK contributes to the gender pay gap says the Fawcett Society. Employers should stop asking jobseekers about their previous salaries, the campaign group is urging. The Society says asking about previous pay when recruiting contributes to the gender pay gap, by keeping women on lower wages.

Its survey of 2,200 working adults found that 47% of people had been asked about past salaries. Meanwhile, 61% of women said the question had an impact on their confidence to negotiate better pay. The Fawcett Society's chief executive Jemima Olchawski told the BBC that unless more is done, the gender pay gap will not be closed until at least 2050.

https://www.bbc.co.uk/news/business-59326773

https://www.fawcettsociety.org.uk/equal-pay-day-2021

Timewise Flexible Jobs Index 2021

Timewise’s 7th annual flexible jobs index reveals that only 1 in 4 jobs is advertised with flexible working. Further it states that recruiters seem to be missing the easy step of clarifying their hybrid working patterns for new office workers, as only 8% of job adverts mention home-working.

https://timewise.co.uk/wp-content/uploads/2021/11/Timewise-Flexible-Jobs-Index-2021.pdf

IA Principles of Remuneration 2022

The Investment Association has published the Principles of Remuneration for companies for the coming year, 2022. 

The Investment Association is an organisation which champions UK investment management (collectively, their members manage £9.4 trillion for savers and institutions). It has issued updated Principles designed to give companies clarity on their members’ expectations on executive remuneration. These Principles sit alongside compliance the requirements relating to remuneration in the UK’s Companies Act 2006, Reporting Regulations, the UK Corporate Governance Code and the UK Listing Rules. The report states that even where companies are not subject to these regimes, they should apply similar ambitious standards.

The Principles state that companies are expected to continue to show restraint and restrict executive bonuses where government support has been taken and not paid back. The IA also informs companies that as environmental, social and governance (ESG) metrics are increasingly a factor in company strategy, these should flow into determining executive pay and bonuses. The ESG metrics should be clearly linked to the company strategy and the rationale and robustness of ESG-performance-related targets should also be made clear to investors. Companies with ESG risks and opportunities incorporated into their long-term strategies should have these similarly incorporated  into their remuneration structures and where they haven’t, they should explain to investors how they will do this in future years. 

https://www.theia.org/sites/default/files/2021-11/Principles%20of%20Remuneration%202022%20-%20Final.pdf

LEGISLATION AND LITIGATION

Details of courts and tribunals closure over the Christmas period

The dates have been published by HM Courts & Tribunals Service

https://www.gov.uk/government/news/christmas-and-new-year-closures-for-courts-and-tribunals-2021

MPs and Peers report on algorithmic tracking

Monitoring of workers and setting performance targets through algorithms is damaging employees’ mental health and needs to be controlled by new legislation, according to a group of MPs and peers.

An “accountability for algorithms act’” would ensure that companies evaluate the effect of performance-driven regimes such as queue monitoring in supermarkets or deliveries-per-hour guidelines for delivery drivers, said the all-party parliamentary group (APPG) on the future of work.

https://www.theguardian.com/technology/2021/nov/11/algorithmic-monitoring-mental-health-uk-employees

MPs call on the government to take urgent action on AI accountability. — APPG on the Future of Work (futureworkappg.org.uk)

The New Frontier: Artificial Intelligence at Work (v8-21.11.2021) (squarespace.com)

Menopause- workplace updates and the debate on the Menopause (Support and Services) Bill

Following the recent focus on issues around menopause, including ACAS guidance on Managing the Effects of the Menopause at Work and the ongoing Inquiry into Workplace Practices around the Menopause (from the House of Commons Women and Equalities Committee), the Parliamentary Under-Secretary of State for Health and Social Care, Maria Caulfield MP, announced that legislation would be amended to reduce prescription charges for HRT products in England .

The debate in Parliament on the Private Members Bill noted that employers should be supportive and flexible and that the menopause will be a women’s health strategy priority. Maria Caulfield MP updated the House on the work that the Government are doing to break down the taboos and improve menopause care for women in three main areas: healthcare; the workplace; and the women’s health strategy. On workforce issues, she announced that the Under-Secretary of State for Work and Pensions is hosting a roundtable with organisations including the British Chambers of Commerce and the Federation of Small Businesses to improve support for and understanding of the menopause, which will make recommendations to Parliament in November. She also urged everyone to respond to the Government’s consultation on making flexible working the default, which closes on 1st December.

https://hansard.parliament.uk/commons/2021-10-29/debates/29F63A4A-BD9F-4A23-A64F-6701E2158A9F/Menopause(SupportAndServices)Bill

https://www.acas.org.uk/menopause-at-work

https://committees.parliament.uk/work/1416/menopause-and-the-workplace/

REPORTS AND CONSULTATIONS

Consultation outcome: Making vaccination a condition of deployment in the health and wider social care sector

The government has confirmed that it will legislate to introduce vaccination as a condition of deployment from April 2022 to those frontline workers who provide face-to-face care for patients and clients.

It will apply to those deployed to undertake direct treatment or personal care as part of a Care Quality Commission (CQC) regulated activity. These workers would be most likely to interact with vulnerable people receiving care in health and social care settings including, but not limited to, hospitals, GP practices and also in a person’s home.

Exemptions will be provided allowing registered persons to continue to use workers for whom vaccination is not clinically appropriate (for example a pre-existing diagnosis of anaphylaxis). 

The regulations will not come into force until 1st April 2022.

There will also be amendments of the Code of Practice on Infection Prevention and Control and its associated guidance, which is issued by the Secretary of State under section 21 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-the-health-and-wider-social-care-sector

PwC says that pandemic influenced gender pay gap reporting and results

A report from PwC  analysing gender pay gap reporting found the gap is continuing to narrow slightly, although reductions in some sectors are likely to be largely driven by the impact of furlough removing large numbers of employees from the calculations, rather than a reduction driven by other pay or demographics changes.

Consulting firm PwC's analysis of the gender pay gap, as evidenced by the fourth year of mandatory reporting, found that the gap narrowed very slightly among companies who reported for 2020/21.   PwC's review of figures submitted this year – when the deadline was extended to 5 October – showed that there was a decline in the average median figure reported, from 14.2% in 2017/18 to 13.1% for 2020/21. The year-on-year decline was minimal, however, representing only 0.2% decrease on the 13.3% average reported in 2019/20. 

Mandatory UK Diversity and Gender Pay Reporting - Maintaining focus on equality - PwC UK

Mandatory UK Gender Pay Gap Reporting: Maintaining focus on equality (pwc.co.uk)

TUC: Gig economy workforce has almost tripled in last five years

4.4 million people in England and Wales now work for gig economy platforms at least once a week according to research.

The number of people working for gig economy platforms has near-tripled in England and Wales over the past five years, according to new research published by the TUC.

The research – carried out by the University of Hertfordshire with fieldwork and data collection by BritainThinks – shows that three in 20 (14.7 per cent) working adults surveyed now work via gig economy platforms at least once a week, compared to around one in 20 (5.8 per cent) in 2016 and just over two in 20 (11.8 per cent) in 2019.

https://www.tuc.org.uk/news/gig-economy-workforce-england-and-wales-has-almost-tripled-last-five-years-new-tuc-research

Government to back a new five-year review to monitor women’s representation in the upper rungs of FTSE companies

The government has announced that it would back a new five-year review to monitor women’s representation in the upper rungs of FTSE companies, namely The FTSE Women Leaders Review, and encourage firms to open up opportunities to everyone.

The government accepts that research has found that having diversity at the top can improve companies’ profitability, and states that it is eager to ensure everyone, whatever their background, has equal opportunity to succeed and achieve on merit across the UK.

https://www.gov.uk/government/news/ministers-renew-efforts-to-increase-opportunities-for-talented-women-at-the-top-of-uk-business

CASES: 

Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694

Disability: Likelihood of recurrence - paranoid delusions unlikely to recur

Mr Sullivan was a senior sales executive with BSC, a boutique capital-raising and advisory firm.

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Kostal v Dunkley and others [2021] UKSC 47

Direct offers from employers to workers who were Unite members breached section 145B TULRCA

The Press Summary is set out below:

Mr Dunkley and 56 other claimants (and appellants) are all members of the trade union “Unite” and are employed as shop floor or manual workers by the respondent, Kostal UK Ltd. Following a ballot of workers, Kostal and Unite signed a (non-legally binding) Recognition and Procedural Agreement in February 2015. In October 2015, they began formal annual pay negotiations.

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Ryanair DAC v Morais & Ors [2021] UKEAT 2020-000275

Pilots were taking part in trade union activities by going on strike regardless of whether it was protected industrial action

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Palmer & Anor, R (On the Application Of) v Northern Derbyshire Magistrates' Court [2021] EWHC 3013 (Admin)

English Court had jurisdiction to hear claims against director and administrator for failure to give notice of proposed collective redundancies in Scotland

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Case Summary Tag: 

Spadijer v. Montenegro - 31549/18 [2021] ECHR 921

Failure to provide effective remedy to damage to physical and psychological integrity was breach of Article 8

This case concerns primarily bullying at work affecting Ms Spadijer’s psychological integrity and the failure of the relevant domestic bodies to protect her, the complaint falling under Article 8 of the European Convention on Human Rights. Ms Spadijer also complained under Article 13 of the Convention that she did not have a relevant effective domestic remedy.

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Case Summary Tag: 

Dublin City Council [2021] EUECJ C-214/20

ECJ rules that 24/7 standby time for a firefighter does not constitute ‘working time’ and so no breach of  Working Time Directive

This request for a preliminary ruling concerns the interpretation of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time.

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Little Piece of Paradise v HMRC [2021] UKFTT 0369

Sports presenter was subject to the intermediaries legislation

This case concerns whether the intermediaries legislation applied to a well-known sports presenter and commentator (Dave Clark) working for Sky TV.

The intermediaries legislation in relation to income tax is by reference to section 49 Income Tax (Earnings and Pensions) Act 2003 (‘ITEPA’), which provides as follows:

49 Engagements to which this Chapter applies

(1) This Chapter applies where —

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Unitatea Administrativ Teritorială D. [2021] EUECJ C-909/19

ECJ rules that time spent training constituted working time

This request for a preliminary ruling concerns the interpretation of Article 2(1) and (2), and of Articles 3, 5 and 6 of Directive 2003/88/EC (the Working Time Directive) concerning certain aspects of the organisation of working time.

Article 1 states, in paragraph 1:

‘This Directive lays down minimum safety and health requirements for the organisation of working time.’

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