GFTU Emplaw Monthly - May 2023
NEW FROM OUR AUTHORS
Recalibrating Early Conciliation
An article by Emplaw author Nathaniel Caiden, barrister at Cloisters, exploring how the recent case of Sainsbury's Supermarkets Ltd v Clark considered how early conciliation intertwines with the Tribunal rules on accepting and rejecting claims, and stated the previous main lines of Employment Appeal authority were wrongly decided.
Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent) Case ID: UKSC 2021/0089
A report by Morrish Solicitors on this recent Supreme Court judgment on the limits of vicarious liability.
FOCUS ON EMPLAW CONTENT
Check out the latest law card on Statutory Limits for Benefits and Awards 2023-2024 (full content for subscribers to Emplaw Online only).
EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW
Inclusive Britain: Guidance on Ethnicity pay reporting, positive action and more
A number of actions have been announced, as the government follows up the commitments made in its March 2022 Policy paper on Inclusive Britain: government response to the Commission on Race and Ethnic Disparities (see Emplaw Monthly March 2022 for details). These include a report on progress, the government’s response to the consultation on standards for ethnicity data (see Emplaw Monthly July 2022) and the publication of 'Ethnicity pay reporting: guidance for employers’ and guidance for employers on positive action in the workplace.
As part of its policy paper last year on Inclusive Britain the government confirmed that mandatory ethnicity pay gap reporting would not be introduced. The Ethnicity pay reporting guidance is therefore intended to set out "a consistent approach to measuring pay differences". The guidance covers:
- collecting employees' ethnicity data;
- gathering the required payroll date for ethnicity pay calculations;
- making ethnicity pay calculations;
- analysing and understand the results of these calculations; and
- developing an action plan to address any identified disparities.
As regards collecting data, the guidance suggests employers ask employees to report their own ethnicity but always with an option of not answering. Employers are directed to guidance from the Race Disparity Unit and the government statistical service Harmonised Standards for collecting someone’s ethnicity.
The guidance on Positive action explains how positive action can aid people who share a particular protected characteristic to overcome certain barriers but highlights that employers need to ensure actions do not result in unfair disadvantage to other groups, as that could amount to ‘positive discrimination,’ which is unlawful. See the Emplaw Law card on Positive Action for more information (full content available to subscribers only).
Publications and updates relating to Inclusive Britain, the government's response to the 2021 report by the Commission on Race and Ethnic Disparities are published as a collection on GOV.UK at Inclusive Britain: publications and updates.
Acas Guidance on: Managing stress at work
Acas has updated its guidance on managing stress at work which includes a link to a Wellness action plan which, it suggests, can help employees think about what is causing them stress and to talk to their manager and get the support they need.
Acas information on Health and Wellbeing is listed here.
Acas Guidance on: Reasonable adjustments for mental health at work
Acas has published new guidance for employers and workers on reasonable adjustments for mental health.
The use of Occupational Health services is highlighted and the guidance states that ‘employers should try to make reasonable adjustments even if the issue is not a disability.’
The useful framework for employers covers:
- what reasonable adjustments for mental health are;
- examples of reasonable adjustments for mental health (including case studies) ;
- requesting reasonable adjustments for mental health;
- responding to reasonable adjustments for mental health requests;
- managing employees with reasonable adjustments for mental health; and
- reviewing policies with mental health in mind
HSE podcast to support disabled people in the workplace
The Health and Safety Executive (HSE) podcast outlines seven principles to support disabled workers and those with long-term health conditions to thrive in the workplace.
The podcast builds on the Principles to support disabled workers and workers with long-term health conditions in work, published by the HSE last year.
Immigration: General information Sponsor Guidance updated
The Home Office has updated its guidance on sponsoring a worker. The guidance provides detailed information for sponsors and covers subjects such as how to sponsor a worker, the Immigration Skills Charge, and Conditions of Stay.
EU Pay Transparency Directive approved by Council
The Directive, which includes obligations on employers to report on their gender pay gap and disclose starting salaries, is likely to create challenges for employers operating in the European Union.
The “EU Pay Transparency Directive” (the Directive) is aimed at combating pay discrimination and close the gender pay gap. It will introduce extensive pay transparency obligations in many EU countries that currently have no or few pay transparency requirements.
The new rules include making it compulsory for employers to inform job seekers about the starting salary or pay range of advertised positions, whether in the vacancy notice or ahead of the interview. Employers will also be prevented from asking candidates about their pay history.
Companies with more than 250 employees will be required to report annually on the gender pay gap in their organisation to the relevant national authority. For smaller organisations, the reporting obligation will take place every three years although organisations with less than 100 employees won't have any reporting obligation.
If the report reveals a pay gap of more than 5% that cannot be justified by objective, gender-neutral criteria, companies will be required to take action in the form of a joint pay assessment carried out in cooperation with workers’ representatives.
Once the Directive formally enters into force (likely this year or next ), EU member states will have three years to transpose the Directive into domestic law.
Spring 2023 Tax Day announcements
On 27 April 2023, on what the government described in the Spring Budget 2023 as a ‘Tax Administration and Maintenance Day’, actions were announced aimed at simplifying and modernising the tax system, and tackling the tax gap.
REPORTS AND CONSULTATIONS
Government proposals: ‘A pro-innovation approach to AI regulation’
The clue is in the title! The White Paper from the Government’s Office for Artificial Intelligence sets out proposals for embracing AI by adopting a regulatory (as opposed to a legislative) approach that doesn’t stifle innovation. A supporting consultation closes on 21 June 2023.
The Paper follows the responses to the government’s July 2022 Policy paper ‘Establishing a pro-innovation approach to regulating AI’ and the update to the National AI Strategy in December 2022.
The Paper lists a number of positive uses for AI such as accelerating the discovery of new medicines and increasing farming efficiency. It also acknowledges the risks to human rights, to safety, to fairness, to privacy, to societal well-being and to security. The paper commits to the regulatory framework being ‘pro-innovation, proportionate, trustworthy, adaptable, clear and collaborative’
The government proposes relying on existing regulators, such as the Health and Safety Executive, Equality and Human Rights Commission, and the Employment Agency Standards Inspectorate, to issue guidance, interpreting and applying five new ‘values-focused cross-sectoral principles’.
The five principles (which are elaborated upon in some detail within the Paper) are:
- Safety, security and robustness
- Appropriate transparency and explainability
- Accountability and governance
- Contestability and redress
The government commitments, within 6 months, to engaging with industry, the public sector, regulators, academia and civil society and to design and publish an AI Regulation Roadmap with plans for establishing the central functions including monitoring and coordinating implementation of the principles.
Meanwhile employers, especially those who do business in the EU, will wish to monitor what is happening in the EU, where the European Commission is proposing to introduce an EU AI Act (expected later this year) to address the risks posed by AI
Information on artificial intelligence, leading policy papers and consultations is posted together on gov.uk at Artificial intelligence - GOV.UK (www.gov.uk)
The 2022 Policy paper is at Establishing a pro-innovation approach to regulating AI - GOV.UK (www.gov.uk)
AI – thoughts from beyond Government
Trade Unions, The Information Commissioner's Office (ICO), The Equality and Human Rights Commission (EHRC) and the Master of the Rolls have expressed their views in the AI space.
The TUC has launched learning for union reps and members who want to know about the impact that artificial intelligence is having in the workplace and who would like to support unions in negotiating agreements on this issue.
The Information Commissioner's Office (ICO) has already published its response to the White Paper ‘A pro-innovation approach to AI regulation’ and encourages the government to work through regulators and, in particular, through the Digital Regulation Cooperation Forum. It has previously published Guidance on AI and data protection.
The EHRC published guidance last year on AI in public services (see GFTU Emplaw Monthly - Autumn 2022 | Emplaw.)
Master of the Rolls
In April 2023, the Master of the Rolls, Sir Geoffrey Vos, gave a speech within which he predicted that AI may be used to take some judicial decisions but controls will be required, including for the parties to know which decisions are taken by judges and machines, and for there to be an the option of appeal to a human judge.
Review of the whistleblowing framework
Following criticism in recent years that the UK’s whistleblowing legislation does not go far enough in encouraging disclosures of wrongdoing and protecting those who blow the whistle, the Department for Business and Trade has launched a review, which will conclude by Autumn 2023.
The core areas the review will explore are:-
- how has the whistleblowing framework facilitated disclosures?
- how has the whistleblowing framework protected workers?
- the definition of worker for whistleblowing protection purposes.
- is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
- what have been the wider benefits and impacts of the whistleblowing framework, on employers, prescribed persons and others?
- what does best practice look like in responding to disclosures?
See Emplaw Law Card on Whistleblowing for an explanation of the current framework (subscribers only).
Committee calls for written evidence on Data Protection and Digital Information (No 2) Bill
The House of Commons Public Bill Committee has called for written evidence ‘as soon as possible’ on the Bill and in any event before it concludes its consideration of the Bill on 13 June 2023. (See Emplaw Monthly April 2023 for more information on the Bill.)
LEGISLATION AND LITIGATION
Employers to be liable for failure to prevent fraud
The government has announced a ‘failure to prevent’ offence – similar to the existing offence of failing to prevent bribery, which will impose criminal liabilities on large employers where a fraud intended to benefit the organisation is committed by an employee or agent.
The offence will be introduced in The Economic Crime and Corporate Transparency Bill 2022-23 which is currently in the House of Lords. Once passed, it is expected that it will be a year before the legislation comes into force. Organisations convicted of the offence can receive an unlimited fine.
Fraudulent offences include participation in a fraudulent business (section 9, Fraud Act 2006), false statements by company directors (Section 19, Theft Act 1968), false accounting (section 17 Theft Act 1968) and fraudulent trading (section 993 Companies Act 2006).
An organisation could be guilty of the crime even if it can be demonstrated that its executives and managers knew nothing about the fraud, although a ‘reasonable procedures’ defence will be available. This will require the organisation to show that it had ‘reasonable’ or ‘adequate’ controls to prevent the fraud, and the extent of the defence is expected to be similar to the ‘adequate procedures’ defence in the Bribery Act.
Large organisations are those defined in the Companies Act 2006 as organisations meeting two out of three of the following criteria: more than 250 employees; more than £36 million turnover; and more than £18 million in total assets.
EHRC recommends that government consider biological definition of "sex" in EqA 2010
On 4 April 2023, the Equality and Human Rights Commission published a letter recommending that the government consider redefining "sex" in the Equality Act 2010 to mean biological sex. The letter requires detailed reading to understand the nuances and complexities of the arguments and the advantages and disadvantages such a change would mean.
Legal challenge to blocked Gender Recognition Reform (Scotland) Bill
The Scottish Government has announced it will seek a judicial review of the UK Government’s decision to block Scotland’s gender reforms. (See Emplaw Monthly February 2023 for background.)
No employer named or shamed in Employment Tribunal Naming Scheme
A Freedom of Information request has revealed that the Department for Business and Trade has been notified 3,713 times of employers’ failure to pay employment tribunal awards, since the scheme was announced four years ago (see Emplaw Monthly January 2019), but no names have been published.