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A B C D E F G H I J K L M N O P R S T V W Y

Employment Bulletin

A regular bulletin that provides updates affecting employment issues and the related legislation and best practice.

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Publishers may be held liable for discriminatory job adverts

Tuesday 8th March 2016

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Employment law update

The Equality and Human Rights Commission’s (EHRC) recently published advertising guidance, provides a useful reminder to both employers and publishers of the dangers of inadvertent discrimination in the recruitment process and how to avoid publishing discriminatory job advertisements. 
 
It will come as no surprise that employers can be liable for job adverts that are directly discriminatory, however the EHRC’s guidance makes it clear that those who publish and distribute the discriminatory advert will also be liable. Whilst the implications for employment agencies and recruitment websites will be obvious, smaller publishers such as taxis, education providers and charitable organisations utilising a notice board, may be oblivious to the potential dangers and could find themselves embroiled in expensive litigation and their reputations tarnished.  
 
The EHRC’s guidance provides reassurance for publishers, as it states that they will not be liable for discriminatory adverts, if they can show:
 
  • That they relied on a statement from the employer, that the publication of a particular advert would not be unlawful, and
     
  • That it was reasonable for them to rely on that statement. 
Practical Tips
 
Discrimination is a developing and complex area of employment law. Whilst many acts of discrimination will appear obvious there are nasty traps for the unwary particularly in the area of indirect discrimination.
 
An example of indirect discrimination would be an employer advertising for a “recent” graduate. As the majority of recent graduates are likely to be under the age of thirty, such a requirement is likely to impact detrimentally on older graduates and if not a direct age bar is likely to amount to indirect age discrimination which could lead to claims for compensation in the Employment Tribunal from disappointed older applicants.
 
Alternatively, an advertisement requiring employees to hold a valid driving licence, may discriminate against a candidate who is prevented from holding a driving licence by reason of a disability. An Employment Tribunal may conclude that the job could have been done that by utilising taxis and public transport therefore the driving licence condition is discriminatory.
 
To avoid such risks extra caution is needed at the job advert stage to ensure that discriminatory conditions are removed from all job advertisements. 
 
Publishers may increasingly seek indemnities from employers in the event that their job adverts are found to be discriminatory.

For more information please follow these links to the EHRC’s website where you can download their guidance, checklist and frequently asked questions documents.

If you would like to discuss any issues regarding the points above or for any other employment law matter please contact:
 
Partner, Employment & Pensions team
Tel: 0151 600 3150

As the country debates Brexit – a timely reminder on the significance of EU law

Tuesday 8th March 2016

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Employment Bulletin - Issue 300

Amidst the national debate on whether or not the UK should remain part of the EU, a decision from the Employment Appeals Tribunal (EAT) has confirmed that UK legislation can and should be interpreted to give effect to EU law on the calculation holiday pay.

In a much anticipated decision, British Gas Trading Limited –v- Mr Z J Lock and Secretary of State for Business, Innovation and Skills has confirmed that it is necessary and possible for additional words to be read into the UK’s Working Time Regulations 1998 (WTR) in order to give effect to the EU’s Working Time Directive.  

This judgment provides those employees earning commission as part of their normal remuneration greater certainty about how their holiday pay should be calculated but serves as a headache to those employers yet to address this issue for their commission based workforce.  

What is Lock about?

Lock was a Sales Consultant working for British Gas. 60% of his usual earnings were commission payments derived from sales. His holiday pay comprised only basic salary and as such, his holiday pay was 40% of his usual earnings.

Commission payments were made in arrears so that when Lock took holiday, his pay remained consistent (in that he received basic pay as holiday pay plus the accrued commission from the period of work prior to his holiday).

However, in the period directly following his holiday, his pay was reduced by 60% because he had not earned commission during the period of his holiday.

The Employment Tribunal hearing the case made a reference to the Court of Justice of the European Union. When the case was referred back to the Tribunal, it held that holiday pay under the Working Time Directive (the EU legislation from which the WTR are derived) cannot be calculated on the basis of basic salary alone where workers remuneration includes commission linked to sales achieved. The rationale was that workers must not be deterred from taking holiday or be placed at a financial disadvantage for doing so.

It was also held that holiday pay must include an element to offset the disadvantage of not having earned commission whilst on holiday being, in other words, average commission calculated “over a reference period considered to be representative”.

The Appeal

The employer, British Gas appealed the decision. 

Seeking to provide certainty as to the law in this area, the EAT dismissed the appeal.  In doing so, they held that Parliament’s intention must have been to comply with EU law. As such, it is possible and necessary to imply words into the WTR to comply with EU law.

So, what does this mean in practice?

This decision will not come as a surprise to many commentators who, in recent years, have observed the tide of decisions on holiday pay calculations only moving one way.

Many will recall the heavily publicised decision of Bear Scotland relating to the inclusion of overtime payments within holiday pay and which the EAT followed in the Lock decision.

The position now is that if the principles in Lock are followed then commission should be included within holiday pay calculations.

Many claims within the Tribunal system that were stayed pending the outcome of this decision will now need to be heard, or, commercial settlements reached. The significance of this judgment is, of course, that the Employment Tribunal is bound by the decision of the EAT in like cases.

If you would like to discuss any issues regarding holiday pay calculations or for any other employment law matter please contact:


Kate Venables

Associate, Employment & Pensions team
Tel: 0151 600 3151
Email: kate.venables@brabners.com


Exclusivity clauses in zero hour contracts

Thursday 3rd March 2016

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The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (SI 2015/2021) (the Regulations) were made on 14 December 2015 and came into force on 11 January 2016.

The Regulations provide a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment. Employees have the right not to be unfairly dismissed or subjected to a detriment, and an employee will not require two years’ continuous employment in order to pursue a claim for unfair dismissal.

Top tips for employers

Employers who have previously sought to rely on exclusivity clauses in zero hours contracts will need to adopt a different approach.

If an employer is reliant on exclusivity clauses they could consider guaranteeing minimum hours to its employees, so as not to be caught by the Regulations.

If you are interested in finding out more about zero hours contracts, or for any other employment advice, please do not hesitate to contact:


Elspeth Beatty

Solicitor, Employment & Pensions team
Tel: 0151 600 3114
Email: elspeth.beatty@brabners.com


Junior Doctor Dispute: Imposing Contractual Change

Thursday 11th February 2016

Employment Bulletin - Stop Press - Issue 299

Solicitor Susan McKenzie writes about imposing contractual changes upon employees.

The junior doctor contract dispute has reached a critical point. The Government has confirmed that it is seeking to resolve the stalemate via imposition of the new junior doctor contract but, for most employers, forcing contractual changes on the workforce raises legal hurdles and the effect that the process has on employee engagement and morale should not be understated.

The best way to vary a contract of employment is to obtain the employees’ express agreement, ideally in writing. This agreement has to be given freely and will involve a process of consultation with the employees. Employers often find that offering employees an incentive (financial or otherwise) to accept a change helps them to reach agreement.

If that fails, an employer has two options: to unilaterally impose the new terms or terminate the employment and offer to re-engage them on the new terms.

Employers often think twice before going down either of these routes as neither is free from risk and they are not conducive to a harmonious employer/ employee relationship.

Where an employer decides to unilaterally impose a contractual change on its employees this will often result in a breach of contract. An employee in this situation has a number of options:

  • to work under protest under the new terms while at the same time bringing a claim for breach of contract, or, in situations where the breach involves a reduction in pay, a claim for unlawful deduction from wages and/ or a claim for unfair dismissal if there is a deemed dismissal; or

  • resign and bring a claim for constructive dismissal (where the breach of contract is fundamental); or

  • refuse to work under the new terms;

Working under protest is unlikely to be acceptable in the long term and usually leads to a drop in employee engagement and morale.

Rather than impose a contractual change without express agreement an employer would be better advised to terminate the existing contract of employment and offer re- engagement on the new terms.

This “nuclear option” comes with its own health warnings:

  • Employee morale and relations may suffer.

  • Contractual notice must be given to avoid a claim for wrongful dismissal.

  • Termination of the current contract of employment could result in a claim for unfair dismissal. This is the case even if  the offer of re-engagement on new terms is accepted, although in this scenario the compensation would be nominal.

  • Depending upon the number of employees affected you may also have to comply with collective consultation obligations.

Our advice is to think carefully before embarking on changes to terms and conditions of employment. While it is best to get your employees’ express agreement this is not always possible so explore in advance the other options available to you and the steps you will need to take to implement the change to reduce the risk of legal claims and permanent damage to employee relations.

If you would like more information about contractual changes please contact:


Susan McKenzie

Solicitor, Employment & Pensions team
Tel: 0151 600 3157
Email: susan.mckenzie@brabners.com


Lessons to learn over your morning coffee

Wednesday 10th February 2016

Employment Bulletin - Stop Press - Issue 298

In our Stop Press Employment Bulletin we look at the Starbucks discrimination case with a blog from our Employment team "Lessons to learn over your morning coffee"


Modern Slavery Act 2015: Is your business affected by this new legislation?

Friday 5th February 2016

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Employment Bulletin - Issue 297

From 31 March 2016, large commercial organisations will be required to produce an annual slavery and human trafficking statement to outline what steps they have taken, during the financial year, to ensure that slavery and human trafficking is not taking place in any part of their business or anywhere in their supply chain. A failure to do so may result in civil proceedings but, aside from the legal consequences, non-compliance will undoubtedly attract criticism which could be damaging to your business.

Large commercial organisations will no doubt seek to audit their suppliers and try to "pass on" their obligations under the Act to those lower down the supply chain. So even if, at first glance, the Act doesn't apply to your business, this isn't to say it won't have an impact.

  • Want to know if your business falls within the scope of the legislation or how you will be affected?
  • Unsure what a slavery and human trafficking statement should look like or whether there are any steps that you should be taking now?

We've produced a free guidance document which aims to tell you just that!

Please follow this link to download your copy.


2016 promises to be a year of significant change in the field of employment law

Thursday 28th January 2016

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Employment Bulletin - Issue 296

Following last May’s election of the first majority Conservative Government in 18 years, it will be of no surprise that 2016 promises to be a year of significant change in the field of employment law. Whilst many of the changes coming into force have been in the pipeline since the time of the Coalition Government, we highlight below some of the key changes you should look out for in 2016.

Implementation of the National Living Wage

From 1 April 2016 the Government will introduce a compulsory minimum wage premium for all workers aged 25 years or over, which will be referred to as the ‘National Living Wage’ (NLW). This will increase the minimum wage for staff aged 25 and above from £6.70 an hour to £7.20. It is envisaged that the NLW will be set at 60% of median earnings by 2020. This would mean a rise to around £9 per hour by 2020.

Gender pay gap reporting

By 26 March 2016, the Government is required to introduce provisional gender pay gap reporting regulations, requiring employers with 250 or more employees to publish their gender pay data. In November 2015, the Women and Equalities Minister, Nicky Morgan MP indicated that gender pay gap reporting would be extended to bonus information and to public sector employers. 

The Trade Union Bill

The controversial Trade Union Bill will continue its progression through Parliament.

The Bill will see some of the most fundamental changes to strike balloting since the 1980s. In addition to the current requirement of 50% of responding trade union members voting in favour of strike action, a 50% minimum turnout threshold will be required. The threshold requirements are even more onerous for those employed in important public services: before strike action can take place in those sectors, at least 40% of those trade union members eligible to vote must approve strike action.

The Bill also introduces more onerous obligations on striking workers, including the appointment in advance of a picket of a picket supervisor who must inform the police of their name and how they may be contacted as well as the time and place of the strike. Along with other measures, the picket supervisor must wear an item of clothing, for an instance an armband that allows others to identify them as the picket supervisor. 

As part of the Bill, the Government is considering lifting the ban on allowing employers to hire agency workers to perform work normally completed by striking workers during industrial action. The Government’s consultation into the hiring of agency workers closed on 9 September 2015 and we are still awaiting the Government’s formal response.

Greater restrictions on the employment of foreign workers

Under the Immigration Bill, the Secretary of State will be given the power to introduce an “immigration skills charge”, payable by those employers recruiting skilled workers from beyond the European Economic Area. Specific details, notably the cost of the immigration skills charge itself, have not yet been announced but it is envisaged that the charge will be used to fund training and apprenticeships.

The Immigration Bill will also introduce a requirement that all public sector workers operating in a customer-facing role must speak fluent English.

Whistleblowing: Does a disclosure have to be of interest to the public as a whole?

In the 2015 case of Chesterton Global Ltd and anor v Nurmohamed, the Employment Appeal Tribunal (EAT) interpreted the Enterprise and Regulatory Reform Act 2013 (“the 2013 Act”), in such a way as to potentially allow a greater number of claimants to claim the protection of whistleblowing legislation. The 2013 Act had made it a requirement that only disclosures made “in the public interest” may receive the protection of whistleblowing legislation.

In a somewhat surprising decision, the EAT concluded that it was not necessary to demonstrate that the disclosure was of interest to the public as a whole. Indeed, it was possible that a disclosure affecting a relatively small section of the public, notably a section of a workforce, could be interpreted as being “in the public interest”. 

Chesterton Global Limited has appealed to the Court of Appeal. This key whistleblowing case is due to be heard in October 2016.

Should holiday pay include overtime and commission?

The area of holiday pay, commission and overtime is a hot topic.

In the 2015 case of Lock v British Gas Trading Ltd, the Employment Tribunal ruled that Working Time Regulations 1998 should be interpreted in such a way, as to require employers to take into account commission when calculating holiday pay for workers with normal working hours.

This decision followed the decision of the Court of Justice of the European Union (CJEU) in the same case that the EU Working Time Directive should be interpreted as precluding an employer from calculating a worker’s holiday pay exclusively by reference to basic salary, when the worker in question is in receipt of commission as a consequence of sales. To do otherwise might discourage the worker from taking annual leave as they would be at a financial disadvantage during the annual leave period. 

British Gas appealed to the EAT and the appeal was heard in December 2014. The EAT is expected to give its ruling in three or four months’ time. 

By way of update, the Claimants in another of the recent holiday pay cases, Fulton and another v Bear Scotland Ltd, have sought permission to appeal on their case to the EAT.

We will keep you posted on development on all of these areas. Should you wish to discuss any of the points raised in this article please do not hesitate to contact:


Susan McKenzie

Solicitor
Employment & Pensions
Tel: 0151 600 3157
Email: susan.mckenzie@brabners.com


Autumn Statement and Spending Review: Key points for employment law, pensions and recruitment businesses

Thursday 26th November 2015

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Employment Bulletin  - Special Issue 295

Chancellor George Osborne delivered a joint Autumn Statement and Spending Review yesterday. The primary focus was on the economy and national security and to set out the Government’s aim over the next four years to eliminate the deficit and move into surplus. Here we outline the key announcements for changes in employment law, pensions and matters affecting recruitment businesses.

Employment

  • 600,000 small business to get business rate relief for another year.The Department for Business, Innovation and Skills’ funding to be cut by 17%.
  • Cap on training places for nurses scrapped, with goal of increasing numbers by 10,000.
  • New 30 hour free childcare subsidy for parents of three and four year olds to be limited to those working more than 16 hours a week.

Three million apprenticeships to be created by 2020, with an apprenticeship levy (to raise the £3bn needed to fund the Apprenticeship Programme) set at 0.5% of employer wage bill. There will be a £15,000 allowance for all firms taking part.

From an employment law perspective we were expecting the Chancellor to report on the Government’s proposals in relation to the taxation of employment termination payments following recent consultation, however no announcement was made. There is likely to be concern from businesses over the apprenticeship levy, which will be an added burden on employers, particularly when coupled with the new National Living Wage of £7.20 per hour for workers aged 25.

If you would like to discuss any issues on these announcements or to discuss any employment law matter please contact:

Elspeth Beatty
Solicitor, Employment & Pensions
Tel: 0151 600 3114 or email: elspeth.beatty@brabners.com

 

Pensions

It was a relatively quiet Statement for pensions. For once there were no great surprises.

We now know the initial level of the new 2016 single tier state pension. If you have 30 years’ National Insurance contributions, you get £155.65 per week. That’s in line with expectations.

The basic state pension will increase to £119.30 per week. The Standard Minimum Guarantee (what you can receive including Pension Credit) will be £155.60 per week.

Well, the Government always said the single-tier pension would be higher than the Pension Credit level.  It’s part of the idea of rewarding people who work. And though the gap will probably widen over time, five pence a week is hardly a fortune. 

For occupational pensions, we’ll need to wait until the 2016 Budget for proposals on how pension tax relief may change. Currently, employers and employees both get tax relief (within limits) on contributions. Most, not all, investment returns within a pension are tax free too. We don’t know yet if this will change, but it’s certainly possible. We may end up with a system where pension payments are tax-free, but contributions are taxed. Or we could have a different system of tax-relief on contributions, perhaps a single rate of about 30% for everyone. Or something completely different.  We’ll have to wait and see.

Pensioners being able to sell their annuities (a policy which pays a guaranteed income for life) is back. Although we won’t get full details until the end of this year, the idea is to allow pensioners the same sort of freedoms that people who haven’t drawn their benefits have enjoyed since April.

There’s a minor tweak to auto-enrolment.  Instead of scheduled increases in employer and employee contributions (ie from 1% each to 2%, and then increasing again the next year until ‘steady state’ is reached) happening in October, they will happen the following April (first in 2017). This gives another six months when employees and employers won’t have to pay higher contributions. It may also be a useful period of acclimatisation for employers and employees whose staging dates are late, so that they are on the 1% rate for longer. Otherwise in some cases they could only have a few months before it increased.

If you would like to know more about these changes or to discuss any pension issues you may have please contact:

Elspeth Beatty
Solicitor, Employment & Pensions
Tel: 0151 600 3114 or email: elspeth.beatty@brabners.com

 
 

 

Update on Travel and Subsistence and IR35 for recruitment businesses

In his Autumn Statement the Chancellor made no mention of proposed changes to Travel and Subsistence tax relief or IR35 legislation. However, the Treasury’s Blue Book (published to accompany the Statement) did go on to comment on these matters. 

The following comments were included in the Treasury’s Blue Book:

‘As confirmed at Summer Budget 2015, the government will legislate to restrict tax relief for travel and subsistence expenses for workers engaged through an employment intermediary, such as an umbrella company or a personal service company. Following consultation, relief will be restricted for individuals working through personal service companies where the intermediaries legislation applies. This change will take effect from 6 April 2016.’

‘The government intends to take action against those who have used or continue to use disguised remuneration schemes and who have not yet paid their fair share of tax. The government will also consider legislating in a future Finance Bill to close down any further new schemes intended to avoid tax on earned income, where necessary, with effect from 25 November 2015.’

From the comments, it is clear that the Government is pressing ahead with its proposals from the 2015 Budget in these areas. Umbrella companies and personal service companies will still be captured by the proposed restrictions to travel and subsistence tax relief. We are now awaiting draft legislation to bring in the changes, which are due to take effect from 6 April 2016.

The Government has confirmed it will take action against “disguised remuneration schemes”, but the manner of enforcement needs to be clarified and is still a concern. 

What does this mean for businesses operating in the recruitment sector? There will inevitably be a big change in the way that the recruitment sector operates and businesses will need to review their supply arrangements in light of the proposed changes. 

Forthcoming seminars
Brabners LLP and BDO LLP will be holding two seminars to discuss what the future holds for Travel and Subsistence tax relief and IR35. A seminar will be held in London on Monday 14 December 2015 and a second seminar will be held in Manchester on Friday 18 December 2015. For more information and to reserve your place please follow this link.

If you would like to know more about these changes or to discuss any other employment matter please contact either:

Paul Chamberlain
Head of Employment & Pensions - Manchester
Tel: 0161 836 8864 or email: paul.chamberlain@brabners.com

Emma Clarke
Solicitor, Employment & Pensions 
Tel: 0161 836 8951 or email: emma.clarke@brabners.com
 


Brabners overturns unfair dismissal finding in disparity of treatment case

Tuesday 24th November 2015

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Employment Bulletin - Issue 294

In MBNA Limited v Mr Mark Jones UKEAT/0120/15/MC, the Employment Judge found the Claimant’s dismissal to be unfair only by reason of disparity with the sanction imposed on another employee, who received a final written warning. On appeal, Brabners, representing MBNA Limited and instructing James Boyd of counsel, persuaded the Employment Appeal Tribunal (EAT) that the Employment Judge did not apply the guidance in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352. As such, the EAT overturned the unfair dismissal finding and held that the dismissal was fair.

The facts

At a designated workplace event, for which the Respondent’s (MBNA) normal standards of conduct and behaviour applied, an incident occurred between Mr Jones (the Claimant) and Mr Battersby, which culminated in Mr Jones punching Mr Battersby in the face. After the event, Mr Battersby left a number of threatening phone messages for Mr Jones. Mr Jones did not immediately receive these and Mr Battersby never carried out his threats. There was no further incident between Mr Jones and Mr Battersby. The Respondent brought disciplinary charges against both employees and made the following findings:-

  • Mr Jones admitted punching Mr Battersby at a workplace event. The disciplinary hearing chair found that there was no substantive provocation and concluded that this conduct could have impacted upon the Respondent’s reputation. Mr Jones was dismissed.
     
  • The same disciplinary hearing chair found that Mr Battersby’s conduct amounted to gross misconduct, but that he had left the phone messages as an immediate response to Mr Jones punching him in the face. Mr Battersby was issued with a final written warning.

Mr Jones brought a claim for unfair dismissal, specifically arguing that the Respondent, in carrying out its disciplinary process, had acted inconsistently with Mr Jones who was dismissed, and Mr Battersby, who was given a final written warning. Counsel for the Respondent answered these submissions, pointing out that the circumstances of Mr Jones and Mr Battersby were not truly like for like, and that it was not permissible to find Mr Jones’ dismissal to be unfair because Mr Battersby received a final written warning. Both Counsel referred the Employment Judge to the guidance in Hadjioannou.

The Employment Judge referred to Section 98 of the Employment Rights Act 1996 and found that the disciplinary hearing and process adopted was reasonable. The Employment Judge said that a reasonable employer would be entitled to find, as the Respondent found, that Mr Jones was not provoked ‘beyond reasonable measure’. However the Employment Judge did not deal with Hadjioannou in his reasons. The Employment Judge found that ‘had both Mr Jones and Mr Battersby been dismissed for what were proven (and unarguable) acts of gross misconduct, that both dismissals would have been fair’. A finding of unfair dismissal was made, to which the Respondent appealed.

The EAT allowed the Respondent’s appeal, concluding that the Employment Judge had erred in law by not following the guidance in Hadjioannou and had departed from the statutory test in Section 98(4) of the Employment Rights Act 1996. The question for the Employment Judge was not whether the Respondent was unreasonably lenient or reached unreasonable conclusions in Mr Battersby’s case, but whether the Respondent reached reasonable conclusions and applied a reasonable sanction in Mr Jones’ case.

The Employment Judge had expressly found that it was reasonable for the Respondent to conclude that Mr Jones was not provoked “beyond reasonable measure”; that the conduct was gross misconduct; and that, subject to what followed, it was reasonable to dismiss. The EAT was therefore in a position to substitute a finding that the dismissal was fair in the circumstances of the case.

Top tips for employers

When carrying out an investigation, disciplinary process, reaching conclusions and imposing an appropriate sanction, employers should keep the statutory test in 98(4) of the Employment Rights Act 1996 in mind; and where there are truly parallel circumstances between employees, or where employees have been led by an employer to believe that certain categories of conduct would not be dealt with by the sanction of dismissal, particular care should be taken to ensure consistent treatment when imposing a sanction.

Brabners successfully represented the Respondent/Appellant in this case. If you are interested in finding out more about the approach to take when handling a disciplinary procedure, disparity of treatment issue, or for any other employment advice, please do not hesitate to contact:


Elspeth Beatty

Solicitor – Employment & Pensions
Tel: 0151 600 3114
Email: elspeth.beatty@brabners.com

 


Equal pay for women and why reducing the gender pay gap should be a priority for employers

Monday 19th October 2015

Employment Bulletin - Issue 293

In our employment bulletin (Issue 293) we look at equal pay for women and why reducing the gender pay gap should be a priority for employers, with a blog from our Employment team.


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