GFTU Emplaw Monthly - July 2023
NEW FROM OUR AUTHORS
Manifestation of beliefs in the workplace: welcome guidance on proportionality
An article from Lewis Silkin discussing the EAT decision in Higgs v. Farmor’s School which broaches the challenging issue of clashing views in the workplace, and specifically gender critical/religious beliefs and LGBT+ rights. In reaching its conclusion, the EAT set out some helpful pointers regarding what factors will be taken into account in assessing the proportionality of any interference with the right to freedom of belief and expression.
Climate Change and your Workforce
An interesting article by Gowling WLG which examines the challenges ahead for certain business sectors.
Retained EU law bill becomes law: what’s the practical impact on employers?
With Royal Assent given on 29th June, this is a timely article from Lewis Silkin summarising what the Act does, and the immediate, mid-term and longer-term impact on employment law from the employer’s perspective.
EMPLOYER/ADVISOR NEED TO KNOW
Over 200 companies named for failing to pay national minimum wage
The Department for Business and Trade has published a list of 202 companies, including high street retailers, restaurants, hotels, schools and football clubs who have previously failed to pay employees the National Minimum Wage. Simple ‘check your pay’ guidance for employers and employees has also been published.
The list is based on investigations which took place between 2017 and 2019. In many cases, the companies may not have intentionally underpaid their workers, but NMW legislation is complicated. Whether intentional or not, employers were ordered to repay workers, and pay total penalties approaching £7 million.
The employers named underpaid workers in the following ways:
- 39% of employers deducted pay from workers' wages.
- 39% of employers failed to pay workers correctly for their working time.
- 21% of employers paid the incorrect apprenticeship rate.
BSI issues workplace standard on menstruation, menstrual health, and menopause
The British Standard Institute, the UK’s national standards body, has announced a menstruation, menstrual health, and menopause in the workplace standard (BS 30416), which aims to provide employers with policy guidance and examples of good practice.
This extensive practical guidance includes examples of conversation topics and suggested adjustments and a sample internal review check list.
BS 30416 takes the form of guidance and advisory recommendations. It is not a specification or a code of practice.
Meanwhile, legislative reform in this area does not appear to be on the agenda. Earlier this year the Government responded to WEC's 'Menopause and the Workplace' report recognising the significance of the topic and identifying a number of steps employers can take to support their employees – from raising awareness through education and training, to making adjustments, to implementing a menopause policy. However the recommendation to make menopause a protected characteristic was not supported.See Emplaw February 2023 for more information.
Landmark workplace standard on menstruation, menstrual health and menopause announced by The British Standards Institute (BSI) - Law Society In-House Division Newsstand (lexology.com) (free registration required to download)
CIPD guide to supporting employees experiencing fertility issues
With the aim of encouraging organisations to view fertility as an important workplace wellbeing issue, the CIPD has published a guide to offering workplace support for individuals experiencing fertility challenges, investigations and treatment.
Guidance on whistleblowing at work
Acas has issued new guidance on whistleblowing at work. Meanwhile the government review of the whistleblowing framework continues to Autumn 2023 (see Emplaw Monthly May 2023).
EAT consults on proposed changes to EAT rules and new practice direction
The Employment Appeal Tribunal has issued a consultation on proposed changes to the EAT Rules and for a new practice direction. Responses must be submitted by 19th July 2023.
The changes proposed to the Employment Appeal Tribunal Rules 1993 (SI 1993/2854) (EAT Rules) are limited and include that the ET1 and ET3 would no longer need to be submitted with the Notice of Appeal and that, in the case of minor errors in complying with rule 3 in terms of the documents submitted, the EAT would have a greater discretion to extend the time limit.
The proposed new EAT Practice Direction will include consequential provisions necessitated by the amendments to the EAT Rules, but also make other substantial changes aimed at better enabling the EAT to deal with appeals efficiently and justly (for example setting out a preference for all parties to use e-filing and an expectation of represented parties to use efiling or to explain, with reasons, why e-filing is not being used.). The new practice direction would replace the existing Practice Direction (Employment Appeal Tribunal Procedure) 2018.
Tackling non-compliance at umbrella companies
The government has published a summary of responses to its Call for Evidence on the umbrella company market and has launched a consultation on proposals to tackle non-compliance with tax and employment rights. The consultation closes on 29 August 2023.
The Call for Evidence on the umbrella company market ran from November 21- February 2022.
The consultation recognises that to enable regulation to be introduced, umbrella companies must first be defined in law. The consultation invites views on which of two definitions of umbrella company would best enable regulation of the market.
Views are then sought on options either:
to set minimum legislative standards in just a few key areas that have consistently been reported as the main areas of detriment for individuals (such as handling of pay and holiday pay, and making entry into an employment contract conditional upon the individual agreeing to pay for additional services offered by the umbrella company)
to set wider minimum standards for performance of umbrella company functions (for example requirements to make it clearer what the individual’s gross pay would be, and to address workers’ confusion about employer contributions being deducted from their gross pay).
The consultation seeks view on which body should enforce umbrella company regulations, although the Government favours the Employment Agency Standards Inspectorate.
With regard to tax non-compliance, the consultation considers three options for preventing tax non-compliance:
• The introduction of a requirement for organisations contracting with umbrella companies to carry out a minimum level of due diligence on that umbrella company with penalties for non-compliance.
• To legislate to give HMRC the power to collect an umbrella company tax debt from another business in the labour supply chain - probably the employment business which supplies the worker to the end client.
• To deem the employment business which supplies the worker to the end client to be the employer for tax purposes, moving the responsibility to operate PAYE.
LSB launches call for evidence on the misuse of NDAs and the role of lawyers
The Legal Services Board (LSB) wishes to consider the professional ethical conduct of legal professionals who assist, enable, or facilitate the misuse of Non-Disclosure Agreements (NDAs) and whether existing regulation is sufficient. Previously promised legislation on the topic has not been forthcoming.
Whilst the LSB accepts that the majority of NDAs are lawful and can legitimately be used to protect the confidentiality of sensitive business ideas and information, there are concerns about their misuse to conceal wrongdoing. For example, the #MeToo movement has raised public awareness of the misuse of NDAs to silence victims of workplace misconduct.
The LSB will publish its conclusions later this year, as well as any proposals for further action. It could for example potentially recommend changes to the regulators' professional codes of conduct.
Back in 2019 the Government consulted on ‘Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination’ and its response proposed legislative controls on confidentiality clauses (See Emplaw Monthly July 2019) but there has been little progress. A private members bill was introduced in May 2022 but did not proceed after the 2021-2022 session of Parliament prorogued.
LITIGATION AND LEGISLATION
Bill of Rights Bill will not proceed
The Justice Secretary Alex Chalk MP has confirmed that the government will not proceed with the Bill of Rights Bill, which aimed to repeal the Human Rights Act 1998.
The Bill has not advanced since its first reading in June 2022 (see Emplaw Monthly June 2022 for more detail).
Retained EU Law (Revocation and Reform) Bill: Royal Assent
The Bill which was introduced to the House of Commons on 22 September 2022, and was significantly amended during its passage through Parliament, was given Royal Assent on 29 June 2023. Much of the Act is now in force, but many of the changes will not take place until the end of 2023. Some provisions of the Act will be brought into force by commencement regulations. For excellent guidance on its practical impact please see the article above.
Is the Sexual harassment bill stalling?
The Worker Protection (Amendment of Equality Act 2010) Bill, which aims to reintroduce employer liability for harassment of employees by third parties and impose a new proactive and positive duty on employers to take “all reasonable steps” to prevent sexual harassment in the workplace, may run out of time to get through before the end of the current Parliamentary session.
The Private Members’ Bil,l which had its first reading in the Commons in June 2022, has faced a number of amendments in the House of Lords following concerns about the potential implications on freedom of speech.
For more background on the Bill see Emplaw Monthly March 2023.