Employment Review: May 2017
This month we remind you of some significant changes in the law from April 2017, which include gender pay gap and whistleblowing reporting and changes to rates and limits.
We also look at case involving the fair dismissal of an individual for gross misconduct for displaying a poor attitude to organisational change.
Various useful guidance notes have been published and we make you aware of the ones relating to gender gap reporting, employing people with disabilities and the hot topic of the status of EU Nationals.
Finally, we have taken a look at the growing focus on naming and shaming employers who have breached the national minimum wage requirements, which contains some household names.
Gender Pay Gap Reporting
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 introduce mandatory gender pay gap reporting on an annual basis for private and voluntary sector employers with 250 or more employees.
Employers will be required to compute and report on the difference in pay between ‘relevant’ male and female employees on an annual basis using data from a specific pay period that contains the relevant ‘snapshot’ date – the first of which was 5 April 2017. Employers then have 12 months beginning with the relevant date in which to publish the information – i.e. the first report will be due no later than 4 April 2018.
The information that employers must report on will include differences in mean and median hourly pay and bonuses between men and women as well as the proportion of women in each pay quartile within the organisation.
The Acas and the Government Equalities Office have published useful guidance and fact sheets on this topic to assist employers in complying with their gender pay gap reporting obligations, including the “top ten myths” of gender reporting.
The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 extend the requirement to report on the gender pay gap to public sector employers. The Regulations are being introduced as part of the existing public sector equality duty and the first snapshot date for the collection of data was 31 March 2017. Public sector employers must therefore publish their first gender pay gap information no later than 30 March 2018.
Of course, all employers should take pay equality seriously. We recommend undertaking the assessment as soon as possible to enable remedial action to be taken where required.
Employers should be aware that:
- a wider definition of employee is used for gender pay gap reporting than is used in the Equality Act (so take care when deciding who should be included in the review)
- six calculations will be required
- the results must be confirmed by an appropriate senior person within an organisation and published on its website and a government website.
Please let us know if you require any assistance to meet your gender pay gap obligations, which should include considering whether you should publish a narrative to explain an analysis of any gap. You may also want to consider whether more detailed or alternatively adjusted metrics should be published.
Many employers have already started to look beyond mere compliance with the reporting regulations and are now working to understand the causes of any gaps and considering measures to address them. Please let us know if you would like to be part on that ongoing discussion.
Case update: poor attitude to change could be gross misconduct
The Court of Appeal has held that an employee’s poor attitude to organisational change could amount to gross misconduct.
The employee, in this case, had been in a managerial position and had been involved in leading a project to alter the way in which services were provided. Various allegations of misconduct were raised against her, including unprofessional and inappropriate behaviour and failure to co-operate, support and lead the service change.
Following disciplinary proceedings she was dismissed for gross misconduct. There were a number of procedural failings as part of the disciplinary process. However, these were corrected during a subsequent internal appeal. Her appeal failed.
The employee then brought claims for unfair dismissal, wrongful dismissal, whistleblowing, race discrimination and victimisation. The tribunal dismissed the claims and she subsequently unsuccessfully appealed to the Employment Appeal Tribunal. She then appealed to the Court of Appeal.
Dismissing the appeal, the Court of Appeal said that the tribunal had been entitled to conclude that a dismissal for poor attitude was fair, and neither wrongful nor discriminatory.
It rejected her argument that the misconduct found against her was incapable of justifying dismissal. It also rejected her argument that the appeal panel had impermissibly made a more serious finding than the dismissing panel, in finding deliberate insubordination. It also did not agree that the appeal panel’s findings were substantively more serious than the dismissing panel’s.
The Court of Appeal did not agree that the flaws in the original dismissal process were of such a nature as to constitute a prima facie case of discrimination, reversing the burden of proof. The flaws, it said, were nothing more than human error.
The Court of Appeal said that the tribunal had, contrary to her argument, been aware of, and applied, the different tests for wrongful and unfair dismissal.
Case reference: Adeshina v St George’s University Hospitals NHS Foundation Trust and others.
Employing disabled people guidance
The Government has published new guidance on employing disabled people and people with health conditions.
The guidance explains the benefits to employers of employing disabled people, what their legal obligations are and where they can get financial help where an individual requires support or adaptations. It also contains guidance on recruiting disabled staff and advice on specific conditions such as mental health conditions and physical impairments. The guidance also provides details of other organisations that are able to give further assistance.
Whistleblowing annual reporting
Regulations requiring ‘prescribed persons’ to produce annual reports of whistleblowing disclosures came into force on 1 April.
The draft Regulations set out the requirements for prescribed persons to report annually on disclosures of information received from workers. The draft Regulations provide that the reporting period will be 12 months beginning on 1 April each year, and set out how the report should be published and what it should contain. The draft Regulations do not require the reporting of any detail that would enable the identification of a worker who has made a disclosure or an employer or other person in respect of whom a disclosure has been made.
The government has updated its guidance for prescribed persons which now includes guidance on the new duty. It states that the aim of producing an annual report is to increase transparency in the way that disclosures are dealt with and to raise confidence among whistleblowers that disclosures are taken seriously
Reference: The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017.
Status of EU nationals in the UK
The Home Office has published online information for European Union nationals living in the UK, which contains information for European Union nationals living in the UK, following the triggering of Article 50. The page will be updated with the latest information about the status of EU nationals in the UK as the Brexit negotiations progress.
It contains information on:
- EU nationals who have lived in the UK for more than 5 years
- EU nationals who have lived in the UK for less than 5 years
- EU nationals who are planning to visit or live in the UK
- Non-EU family members of EU nationals
- Extended family members of EU nationals
- Irish nationals
- Croatian nationals
- Removing EU nationals from the UK
It also contains information on what UK nationals travelling and living in Europe need to know.
UK Visas and Immigration has also updated its form and guidance for EEA or Swiss nationals, and non-EEA or non-Swiss family members of EEA or Swiss national, on applications for a document certifying permanent residence, or a permanent residence card, in the UK.
National Minimum Wage: Record number named and shamed
The Department of Business, Energy and Industrial Strategy has named and shamed a record number of employers for failing to pay the National Minimum Wage and National Living Wage.
The list names 359 employers, including Debenhams and Subway, who between them underpaid 15,513 workers a total of £994,685. As well as being named and shamed the employers on the list will be required to pay back pay to the workers who they underpaid plus penalties totalling around £800,000.
Employers in the hairdressing, hospitality, retail and social care sectors feature prominently in this naming and shaming round. Excuses given for underpaying workers included using tips to top up pay, docking workers’ wages to pay for their Christmas party and making staff pay for their own uniforms out of their wages.
Shortly after this list was published it was announced that Argos had been ordered to pay NMW arrears of £2.4m to 37,000 workers after it was found that it had scheduled staff briefings before workers began their shifts and had insisted on carrying out staff security checks outside of working hours.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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