GFTU Emplaw Monthly - End of November 2022
GFTU Emplaw Monthly – End of November 2022
News for this month includes the Regulations banning exclusivity clauses for low-income workers, which will be in force from December 6th, and the minimum wage increases announced for next year. We highlight a number of employee health related matters such as updated draft guidance from the ICO on how to handle employee health information, NHS guidance on supporting people through menopause and the rising numbers of workers on long-term sickness absence. We also report on the rising opposition to the Retained EU Law (Revocation and Reform) Bill and more…
NEW FROM OUR AUTHORS
TUPE Tuesday podcast: Information and Consultation claims
Part of Emplaw authors Gowling WLG's TUPE Tuesday podcast series with the latest TUPE updates, the implications of recent cases, and potential new developments next year.
This article, by Emplaw authors Lewis SIlkin, outlines the law in this area and gives practical insights, aimed at employers.
EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW
2022 Autumn Statement includes national minimum wage increases
Amongst the chancellor's announcements made on the 17th of November, was an increase to the national living wage (NLW) and national minimum wage (NMW) rates from 1st April 2023. The NLW and the NMW (for the over 21s) will, for the first time, be over £10 per hour.
The new rates from 1 April 2023 will be:
• Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
• Age 21 to 22: £10.18 (up 10.9% from £9.18)
• Age 18 to 20: £7.49 (up 9.7% from £6.83)
• Age 16 to 17: £5.28 (up 9.7% from £4.81)
• Apprentice rate: £5.28 (up 9.7% from £4.81)
• Accommodation offset amount: £9.10 (up 4.6% from £8.70)
2.5 million people in the UK are out of work because of a long-term health problem
The number has jumped by half a million since the start of the pandemic but the impact is spread unevenly across the country, with some regions and types of job far more affected. Informative analysis by BBC News.
Information about workers health – what should employers collect and how to handle it
The Information Commissioner's Office (ICO) has published draft guidance on information about workers' health. It is open for consultation until 26 January 2023.
This is the second set of draft guidance prepared by the ICO as part of its plans to replace its current employment practices guidance (see October’s Emplaw Monthly). Last month we reported on the consultation on guidance replacing the “Monitoring at work” chapter of the DPA98 employment practices code.
The latest draft ‘Employment practices and data protection: information about workers’ health’ addresses data protection questions such as how to lawfully process health information, as well as practical guidance on how to handle sickness records, occupational health schemes, medical examinations and testing, genetic testing, health monitoring and the sharing of worker health information.
Supporting people through menopause: guidance for NHS line managers and colleagues
The NHS has published detailed guidance for its entities, but which will be useful for other organisations to consider too. It has been developed in collaboration with the Chartered Institute of Personnel and Development (CIPD).
There is guidance on how an organisation can be menopause friendly and how to support colleagues experiencing menopause. There are links to a number of other useful resources to inform employers and to support staff going through the menopause such as The Government’s vision for the Women’s Health Strategy and guidance from the CIPD and Acas.
Note on electronic signatures and execution of documents
With increasing use of e-signing platforms and the practice of remote signings, this up-to-date note issued by The Law Society & The City of London Law Society is essential reading for legal practitioners and commercial organisations. It is a comprehensive and authoritative note on the execution of documents using an electronic signature. It applies to documents (including contracts) entered into in a business context.
CONSULTATIONS AND REPORTS
Gender pay gap at 8.3% among full-time employees this year
The 8.3% figure is found in information published by the ONS (Office for National Statistics) and based on their Annual Survey for Hours and Earnings. This compares to 7% in April 2021 and 9.0% in April 2019.
Given the effects of the coronavirus pandemic, including the impact of furlough schemes and the disruption of data collection, the ONS encourages focus on longer term trends rather than year on year changes. These longer term findings include:
- The gender pay gap for full-time employees aged 40 years and over is much higher than for employees aged below 40 years
- The gender pay gap is higher in every English region than in Scotland and Northern Ireland
- Compared with lower-paid employees, higher earners experience a much larger difference in hourly pay between the sexes
TUC calls for mandatory disability pay gap reporting
Following analysis showing the pay gap between non-disabled and disabled workers is now 17.2%, or £3,700 a year, the TUC is calling on the government to take active steps to reduce it.
The TUC proposes:
- More funding for the Equality and Human Rights Commission (EHRC) to enforce disabled workers’ rights to reasonable adjustments. The EHRC must update their statutory code of practice to include more examples of reasonable adjustments, to help disabled workers get the adjustments they need quickly and effectively
- A stronger legal framework for reasonable adjustments including: ensuring employers respond quickly to requests, substantial penalties for employers who fail to provide adjustments and for reasonable adjustment passports to be mandatory in all public bodies.
- The National Minimum Wage to be raised to £15 per hour as soon as possible
- A day one right to flexible working for everyone and a duty on employers to include possible flexible working options in job adverts
LITIGATION AND LEGISLATION
Regulations banning exclusivity clauses for low-income workers in force
The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 (SI 2022/1145) come into force on 5 December 2022 and apply to England, Scotland and Wales.
The Regulations extend the ban on exclusivity clauses, which already applies in zero hours contracts, to contracts where a worker’s guaranteed weekly income is below the Lower Earnings Limit (currently £123 a week). An exclusivity clause is a contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer's consent.
The background to and scope of these Regulations is covered in Emplaw Monthly - End of July 2022 | Emplaw when the draft Regulations were published.
Opposition grows and amendments tabled to the Retained EU Law (Revocation and Reform) Bill
Opposition parties, including Labour and the SNP, have tabled amendments to the Bill which is now at the Committee stage and others, including Unison and the Employment Lawyer’s Association (ELA) have flagged substantial employment law concerns.
The Bill provides for EU laws which were retained post Brexit and which are not restated, replaced, or revoked by the end of 2023 (although this can be extended to June 2026) to cease to be on the statute book. For further background see Emplaw Monthly - Autumn 2022 | Emplaw
Some of the amendments tabled propose to remove, and so thereby preserve, certain legislation from the Bill including The Working Time Regulations 1998, TUPE protections, and The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Unison is asking the government to remove all employment legislation from the scope of the Bill altogether, and to extend the sunset date to the end of 2033, to allow the government more time for a proper review.
Meanwhile the ELA published a briefing paper which strongly counselled that the Government carries out a comprehensive audit as to the effect of abolishing the Regulations within the scope of the Bill.
Tribunal closures over Christmas holidays 2022
HM Courts and Tribunals Service (HMCTS) has published details of which courts and tribunals will be closed over the Christmas 2022 holidays.
ET tribunals will be closed on:
• Monday 26 December 2022.
• Tuesday 27 December 2022.
• Wednesday 28 December 2022
• Monday 2 January 2023.
Scottish courts and tribunals will be closed on Monday 26 and Tuesday 27 December 2022 and Monday 2 and Tuesday 3 January 2023
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