June, 2020

Mandatory ethnicity pay gap reporting petition reaches more than 100,000 signatures

A petition calling for mandatory ethnicity pay gap reportingfor UK firms with 250 or more staff has reached more than 100,000 signatures, meaning it will be considered for debate in parliament.

The petition, created on the Government’s portal, urged the importance of introducing an ethnicity-based pay gap reporting framework similar to that already in place for the gender pay gap. It followed Black Lives Matters protests in cities across the UK.

The petition – launched in March, before the death of George Floyd in the US triggered the current wave of Black Lives Matter protests – reached 100,000 signatures, the threshold at which parliament will consider holding a debate on the issue.

As the Black Lives Matter movement has continued to press for equality in the US and elsewhere, companies seeking to support equal rights have come under increasing scrutiny about the make-up of their boards and their commitment to paying and treating non-white employees equally.

A UK Government consultation on ethnicity pay reporting closed in January 2019, but the outcome is yet to be published. The Government is yet to respond to the petition and a date for the parliamentary debate has not been set.

The ethnicity pay gap petition followed increasing pressure for leaders to take action on this issue. In March this year, calls for ethnicity pay gap reporting were renewed as research revealed young people with BAME backgrounds were 47% more likely to work zero-hours contractsthan their white counterparts, and were 10%  more likely to hold a second job.

Earlier this year the Government suspended gender pay gap reporting requirements to ease the burden on organisations dealing with the repercussions of the coronavirus outbreak. As a result, the number of organisations reporting their gender pay data this April was half that of last year. The average pay gap increased from 11.9% to 12.9%.

  • Posted on June 22nd, 2020

Misuse of Furlough Scheme

Almost 2,000 claims of furlough fraud have been made against employers since the coronavirus job retention scheme (CJRS) was introduced in March. But the number of reports could spike dramatically when the scheme comes to an end, with disgruntled employees looking to get their own back.

There may be businesses which have seen the scheme as a way of getting the Government to pay their employees’ salaries while expecting them to work at the same time. While many employees may feel scared to report their employer right now, if they were to be made redundant that may well change.

While some employers may have been exploiting the scheme, some others have refused, as a matter of principle, to take Government money from the CJRS, which makes the response from businesses varied.

Given that this is a completely new scheme, with many iterations of guidance, of course some employers may have made genuine mistakes. Employers should take advice from their accountants and make sure they have put in the correct claims.

Employers that have misused the CJRS may be subject to investigation by HMRC. Ignorance is no excuse, and with HMRC warning that individual directors will be ‘jointly and severally’ liable, it is essential that businesses make sure they have been claiming correctly.

  • Posted on June 22nd, 2020

Effective listening is key to avoiding whistleblowing claims

In the new Covid-19 world, UK employers are having to examine health and safety obligations as never before. This includes risk-assessing broader areas, including transport to work and factoring in considerations cleaning.

Equally, UK workers are being forced to adjust to new environments, new measures, fast-paced change in employers’ measures and Government guidance. Workers feeling worried about their safety are likely to look for a way to raise those concerns. If they do not feel that their employer is taking concerns seriously, they may raise them formally through whistleblowing.

To gain legal protection as a whistleblower, the employee must show they have made a qualifying disclosure. The definition of this is a disclosure of information that, in the reasonable belief of the worker, is made in the public interest and tends to show one of the relevant failures has occurred, is occurring or is likely to occur.

In this context, any whistleblowing claim is likely to focus on the health or safety being or is likely to be endangered. The legislation dictates to whom a qualifying disclosure can be made to be protected.

So what is the risk to the employer if a worker has made a qualifying disclosure? The employee needs to allege that they have sustained a “detriment”, or they have been dismissed because they made a qualifying disclosure.

Having an active whistleblowing mechanism is a good thing. However, proactive management of communication channels and active listening may go a long way to keeping the numbers of avoidable concerns down. One option is to focus less on whether or not employees have legal protection as whistleblowers and set a standard that makes employees feel that they are being listened to and valued at this uncertain time.

  • Posted on June 22nd, 2020

Carers using annual leave to cover childcare

Three in five working carers had to use annual leave last year to look after an ill, elderly or disabled family member, partner or friend, research has found.  A poll found carers used on average, six days of their holiday entitlement to help them juggle work and caring responsibilities, prompting calls for the Government to roll out extra statutory leave for carers as soon as possible.

Legislation cementing statutory rights for working carers, which includes five extra days’ unpaid leave a year, is currently under consultation. The survey polled a nationally representative sample of more than 2,000 UK adults. It found almost two-thirds of working carers said they could be forced to give up their existing employment because of a lack of support and flexibility from their employer.

Almost one in five of all workers polled said their employer currently offered carers additional leave, and more than half said they would struggle financially if caring for a loved one meant they could no longer work.

Seven in 10 respondents said they supported the idea of statutory carers’ leave. While the Government doesn’t currently plan to oblige employers to make extra carers’ leave paid, more than two in five respondents also supported such leave being paid.

  • Posted on June 22nd, 2020

Parents returning to work from statutory leave

Employers have been wrestling with the issue of employees returning from Maternity or other statutory parental leave in the context of Furlough.  The Government has allowed an exception for the Furlough scheme to cover parents returning to work after statutory leave, who can still be put on Furlough leave (after the cut-off date of 10th June) if the following requirements are met:

  1. The types of statutory leave that will qualify employees for Furlough are: maternity leave, paternity leave, adoption leave, shared parental leave and parental bereavement leave.
  1. Furlough can be agreed with employees on those types of leave who are due to return to work at a date up to October 2020, provided that ‘they work for an employer who has previously furloughed employees’. This means that you must have furloughed at least 1 other employee during the life of the scheme
  • Posted on June 22nd, 2020

Helpful tips to manage mental health in the workplace during Covid-19

At this time, during the Coronavirus pandemic, many people are feeling anxious, worried and concerned due to a reduced amount of control over their work and home life.

ACAS has released helpful tips and resources for employers, managers and employees on how to effectively manage mental health in the workplace during Coronavirus.

Tips for Employers

It is important to acknowledge that employees may require more support than usual with regards to their mental health during the pandemic.

Employers can utilise the following steps to help manage their employee’s mental health, such as:

  • When updating or informing staff be sure to communicate honestly, clearly and openly in order to reduce panic and confusion
  • Be approachable to all staff and encourage them to speak to you if they need support
  • If an employee does approach you, ensure you deal with their matter calmly and sensitively
  • Keep in regular contact with staff, especially with furloughed staff, in order to check how they are doing and to ensure they feel connected with the workplace whilst they are at home
  • Support your staff, ensure they have clear priorities and targets to achieve whilst working from home
  • Speak with managers to check if they require any additional support or resources for their teams

Tips for Managers

In addition, managers can also help their teams by encouraging positive mental health:

  • Consider providing online mental health training for staff
  • Appoint mental health ‘champions’ who staff can speak to about their concerns if they do not feel comfortable speaking directly to a manager
  • Promote existing wellbeing support that the workplace already offers such as counselling
  • Be available for staff to approach you with any concerns
  • Communicate often and clearly with teams and do not make assumptions as to how they are coping
  • Reassure staff during this time of their safety and inform them of important workplace updates
  • Agree clear work expectations with each member of staff

Through applying some of these helpful tips in your workplace, you can help to reassure your employees and reduce their worries and concerns. In turn, this will help to promote positive mental health in the workplace.

For more advice and links to helpful resources visit https://bit.ly/2Yc4h7I

  • Posted on June 22nd, 2020

The conundrum facing employers

As pandemic restriction are gradually lifted, employers are facing employees who express concern and even fear, of returning to work.  If this does happen what steps should employers take?

  • Employers need to understand the issue.This will mean probing into employees’ individual circumstances to understand exactly why and what the reasons are. This should be done in a return to work meeting, in which any safety measures, risk assessments undertaken should be shown to the employee as a means of providing reassurance of safe working.
  • Don’t take a blanket approach. Employers will have toconsider issues such as employees living with someone who is shielding, or single parents who cannot secure childcare or have underlying health conditions. An employee cannot be at a detriment for refusing to return to the workplace where they have serious health and safety concerns. From a legal perspective if an employer decided to  discipline or reprimand, they may create issues of discrimination.
  • Proceed cautiously with disciplinary or dismissal action. An employer can impose rules or make requests, but if the employee refuses to comply and calls the employer’s bluff the employer should try to balance the concerns and work out how far they are willing to press the issue. It may be very challenging to take action, especially if the employee has personal circumstances that prevent their return.
  • Make a well-informed decision. If an organisation has followed all Government guidelines and ensured the risk is minimised for employees, but they still refuse to return, then the business also needs to be prepared to conclude a staff member doesn’t have reasonable grounds. The employer should then think very carefully about how to approach disciplinary proceedings, she says.
  • Remember whistleblowing protections. Employees who raise concerns (in the public interest) about health and safety risk in the workplace could also exercise whistleblowing rights. If they put their concerns for their safety in writing then that could be considered a disclosure against health and safety concerns. But if the employer has instigated a proper risk assessment and implemented measures based on their risk assessment control measures, that protective disclosure will carry little risk.
  • Posted on June 8th, 2020

Tribunals to hear working time regulations’ claims

Following a review of the split jurisdiction in employment law between the employment tribunal and the civil courts, the Law Commission has published a report containing 23 recommendations to improve the way in which employment disputes are handled in the UK. One of the report’s most interesting recommendations is the extension of the employment tribunal’s jurisdiction in dealing with claims under the Working Time Regulations 1998 (WTR).

Under existing law, while the employment tribunal has the ability to hear complaints by individuals in areas such as rest periods and statutory annual leave, other provisions of the WTR relating to working time limits must be enforced elsewhere. For example, the Health and Safety Executive (HSE) is able to enforce complaints relating to limiting the working week and limiting working time for night workers, and the civil courts are able to hear claims regarding breach of the requirement that workers must only undertake a maximum 48-hour average working week.

The report considered this split of jurisdiction confusing for employees, employers and agencies alike, leading to a lack of awareness of enforcement mechanisms and has recommended the extension of the employment tribunal’s jurisdiction to allow it to hear complaints from workers in respect of the provisions that dictate a maximum 48-hour average working week for workers, and provide the maximum working hours for both young and night workers (maximum hours provisions).

The Law Commission believes that, in implementing its proposals, there will be a stronger, more comprehensible enforcement mechanism for the maximum hours’ provisions. However, many businesses have expressed concern that the proposed changes would encourage workers to seek resolution through litigation rather than addressing concerns with their employer first, which could damage ongoing working relationships. However, the impact of the reform may not be as far-reaching as critics claim. This is because the current law allows workers to opt out of the maximum 48-hour average working week by agreement with their employer. Indeed, many modern employment contracts and service agreements incorporate an express opt-out provision, which will operate from the beginning of the working relationship.

  • Posted on June 8th, 2020

Employers urged to consider their approach to Test and Trace system

It is thought that the Government’s Coronavirus test and trace system may contribute to an increase in workplace disputes. In both Scotland and the wider UK, anyone who tests positive for the virus will be contacted by text, email or phone and asked to log on to the NHS test and trace website to provide their details, along with those of who they live with, places they’ve visited recently, and the names and contact details of people they have been in close contact with in the 48 hours before symptoms started, so that NHS contact tracers can track them down.

 

Under the scheme, those who have come into close contact with someone who tests positive will receive a phone call, text message or email telling them to stay at home for two weeks, even if they have no symptoms. The idea is to avoid national lockdowns, with more localised restrictions used instead. However, it is thought that there may be a potential rise in disputes where staff feel unable to stay away from their jobs to self-isolate. The TUC has called for the Government to bring forward a legal duty on employers not to penalise or discriminate against any workers required to self-isolate once or repeatedly by the test and trace system. The TUC warned that inadequate statutory sick pay – which currently stands at £95.85 per week – and fear of possible loss of income could stop people from acting on public health requests to self-isolate.

 

Businesses are advised to prepare for some level of disruption caused by the system’s introduction. Employers must be wary about refusing to accept employees’ confirmation that they have been tested and must self-isolate, or who are awaiting results or who may have been exposed to someone who is infected (traced).

  • Posted on June 8th, 2020

Football club fined £50,000 for dismissing an autistic coach

Football club Arsenal Women has been fined £50,000 by the FA for dismissing a youth football coach shortly after he disclosed suspected autism.

The team was found to have treated the employee “less favourably than [it] would have treated an employee without disability” after the club dismissed him a few days after he disclosed concerns about potentially having autism.

As well as the fine, the Independent Regulatory Commission is requiring Arsenal Women staff members to take an education programme on discrimination, under the supervision of the FA, which originally brought the charges of discrimination against the club.

The commission’s report said the employee disclosed his suspected autism to the technical director of the cub and a meeting was held to discuss how he continued to be affected by autism in his work and personal life. In a subsequent meeting the director informed the coach that he would no longer be engaged by the club as a coach and gave him four weeks’ notice of dismissal.

The club claimed that the coach was dismissed because his coaching philosophy was too focused on winning matches and this was “increasingly at odds” with the club’s drive to develop players. However, this was not accepted as a reasonable excuse for dismissal by the commission, the FA or the employee who brought claims of unfair dismissal and disability discrimination against the club to an employment tribunal. He claimed the reason for his dismissal was linked to his disclosure that he might be autistic and was therefore discriminatory.

On the day the claim was due to be heard by the tribunal a settlement agreement was reached.

But the FA also charged the club with misconduct for treating the coach less favourably because of his disability, and because the club had “actual or constructive” knowledge of his disability prior to his dismissal. The commission started its investigation soon after.

On 27 March 2020, the commission found Arsenal Women had carried out “an act of discrimination” by “reason of disability” in its act of dismissal. It added that the club “should have taken appropriate steps to obtain an accurate diagnosis in relation to his potential disability or encouraged and assisted the employee to obtain a diagnosis for himself” given that he had raised concerns while employed there.

This this case is a clear example of why employers need to respond carefully when informed by an employee of a condition that could impact their ability to conduct their role. Discrimination can still arise even when this is not the intention of the employer and, to this end, employers must be aware of the legal obligations placed on them when managing disabled employees.

  • Posted on June 8th, 2020

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