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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

Gender Pay: No Respite for Millennials
Wednesday 4th January 2017

The Resolution Foundation has identified that the gender pay gap for Millennials (those born between 1981 and 2000) stands at 5%, which is lower than for previous generations. Whilst this is a positive step, the same study has also found that when women reach their 30s and early 40s, a time when many start to have children, the pay gap widens considerably and continues for decades afterwards.

According to the Resolution Foundation, this trend is likely to continue for Millennials with the effect that female Millennials are likely to suffer “a significant lifetime earnings penalty compared to their male counterparts”.

The Government is seeking to address the gender pay gap by requiring employers with 250 or more employees to publish their gender pay gap information. The final version of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (“the Regulations”) has been published and is expected, subject to parliamentary approval, to come into force on 6 April 2017.

The Regulations contain a number of changes from the draft Regulations, including the fact that the “snapshot date” has been moved forward to 5 April, meaning that the first gender pay gap reports must be published by 4 April 2018. We will be updating you more fully on the changes in the coming weeks.

If you would like advice on gender pay gap reporting and the impact it might have on your business please contact Susan McKenzie or Kate Venables.


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First Uber, now CitySprint – The Latest Gig Economy Employment Litigation
Wednesday 23rd November 2016

The “gig economy” is a term bandied around a lot these days. Apparently, the word “gig” stems back to 1920’s jazz musicians who “gigged” at the various jazz clubs. Today, the phrase “gig economy” is used to represent the growing trend of people working on either a short-term, temporary basis or businesses preferring to use independent contractors, rather than workers or employees. Like the jazz musicians of the 1920s, today’s independent contractors won’t get holiday or sick pay and there is an increasing trend towards individuals doing piecemeal work for various different businesses, with a lesser degree of job security. 

My colleague, Laura Pointon, recently wrote an article about the employment tribunal litigation involving the taxi app, Uber. In this case, the Employment Tribunal found that the two claimants were “workers” and not self-employed contractors, as Uber suggested. For more on the Uber case and a bit of background on the issue of employment status, 

But the recent Uber decision is really only the tip of the iceberg. As Laura said, an individual’s employment status is not always easy to determine and the growth of the gig economy has encouraged people to stop, consider and question their rights.

This week therefore sees another case regarding not all that dissimilar issues to the Uber case. One of CitySprint’s couriers, currently treated as a self-employed contractor, will argue over the next few days that she should be classed as a worker and therefore have the benefit of rights such as holiday pay and the national minimum wage.

The claimant in this case will, no doubt, seek to argue that CitySprint exerts a great deal of control over her activities in terms of how and when she completes deliveries and whether or not she can truly send a substitute in her place if she is unable to attend work on a particular day. Whilst these aspects are not the be all and end all, they are significant factors in deciding whether an individual is a worker or genuinely self-employed. The tribunal will have the job of assessing all the relevant factors to determine the working relationship between the courier and the company and it may well decide that the current label of “self-employed” does not match the reality of the situation.

As with the Uber case, if the Claimant is successful, she will benefit from greater rights. Such a decision would, however, heavily impact on CitySprint’s business and I anticipate that an appeal would be inevitable. 


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Equal Pay Day and Gender Pay Gap Reporting
Thursday 10th November 2016

Just over a year ago I wrote a blog post entitled "Equal pay for women - why reducing the gender pay gap should be a priority for employers". Today is Equal Pay Day in the UK, the day on which due to the gender pay gap women effectively start working for free for the rest of the year.

Under new legislation expected to come into force over the next few months, employers with 250 or more employees will be required to publish certain gender pay gap information annually. The first snapshot for the information is expected to be in April 2017 with the report to be produced within 12 months.  

Whilst we are still awaiting the final version of the legislation we are receiving enquiries from employers about how to comply with the gender pay gap reporting requirements.

If you would like advice on gender pay gap reporting and the impact it might have on your business please contact Susan McKenzie or Kate Venables.

 


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Uber: Does the latest decision give any more clarity on employment status?
Monday 31st October 2016

Uber, a taxi company classified its drivers as either independent contractors or self-employed individuals to support its business model which allows its drivers to work flexibly as and when they wished. 

Classification of employment status and the case law surrounding this area goes back many years due to the fact that employment status is not easy to determine.  The reason it seems that employment status is back in the lime light again now, is because there has been a growth in the so called ‘gig-economy’ a name given to companies utilising self-employed workers.

As a recap, under section 230 (1) of the Employment Rights Act 1996 (“ERA 1996”), an employee is defined as:-

"an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment".

Under section 230(2) of ERA 1996, a contract of employment means:-

"a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing".

The argument from the two claimants that brought the case against Uber, was that they believed they should be classified as employees.  On 20 July 2016, a central London employment tribunal considered the claim from the two individuals (backed by the GMB union), to determine if Uber had acted unlawfully by not providing them with holiday and sick pay and whether they were entitled to receive a guaranteed minimum wage.

On 28 October 2016, the Employment Tribunal has ruled that the two claimants are ‘workers’ within the meaning of the ERA 1996 which means that the drivers will now be entitled to more rights for example but not limited to, the protection of the whistleblowing legislation, 5.6 week’s paid annual leave and the national minimum wage.

Although this case is being communicated as a land mark decision, it must be remembered that the main argument of the claimant’s case centred on ‘mutuality of obligation’ between the claimant(s) and Uber.  The meaning of ‘mutuality of obligation’ is the obligation on the employer to provide work and the obligation on the individual to accept that work, an element that Uber did not feel was in place as it had the ability to offer the work to an individual and the individual had the option as to whether to accept the work or not.

Of course, this latest decision is by no means the end of litigation in this area, as Uber have already confirmed they will be appealing against the decision that they have acted unlawfully, no doubt resulting in this area of employment law continuing to rumble on in its complexity.


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Football Association hard line on inappropriate tweets
Tuesday 27th September 2016

The misuse of social media in the world of football hit the headlines again this weekend.  Burnley forward, Andre Gray, was suspended for 4 matches in relation to 6 postings on his personal Twitter account. The tweets in question were, in part, homophobic in nature and considered to be abusive, insulting, improper and considered to have brought the game in to disrepute. They were found to be aggravated breaches of FA Rule E3.

There have been numerous high profile cases of misconduct associated with the use of social media but the Gray case begs the question “how far back will The FA go?”  Lydia Edgar, Partner in our Employment Department states:

What is particularly interesting is that the tweets in question were posted 4 years ago when Gray was playing for non-league side Hinckley Town. They have only recently come to light.

“There is a clear need for Clubs to educate players and staff in order to avoid disruptive sanctions and reputational harm.  As a minimum, players should be encouraged to review their historical postings and remove anything that may cause offence.”

Lydia has presented seminars to Executive Boards, first team players and staff at Premier League and Championship clubs which provide practical guidance to clubs regarding:

  • The requirements and scope of FA Rule E3
  • The concept of “Aggravated Breach”
  • Sanctions for breach
  • The Clubs potential liability for Aggravated Breach
  • The test applied by Regulatory Commissions
  • What is “private”?
  • Case studies and examples within the game.

It is clear that misconduct associated with the use of social media is high on the agenda for The FA.

For more information or to discuss the provision of training to pro-actively address the risk to individuals and clubs, please contact Lydia Edgar at lydia.edgar@brabners.com


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Shared Parental leave, over one year on but has it achieved its purpose?
Thursday 22nd September 2016

The starting point from which the shared parental leave scheme evolved, was back in the 2010 election manifestos for both the Liberal Democrats and Conservative parties.  During both of their campaigns they promised to introduce a more flexible system for both parents to take leave on the birth or adoption of their child.

The Shared Parental Leave (“SPL”) Regulations came into force on 1 December 2014 and the scheme applied to any children where the expected week of childbirth (“EWC”) began on or after the 5 April 2015 or a child was placed for adoption on or after the 5 April 2015.

In order to be eligible for SPL both the mother and the father have to meet certain criteria, examples of which are (but not limited to) that they must have been continuously employed for 26 weeks, at the end of the 15th week before the EWC (and still be in employment) and at the date of the child’s birth have the main responsibility for the care of the child (Regulation  4 (1), 4 (2) and 8 (1) of the SPL Regulations cover the full criteria for the mother and Regulations 5 (1) and 5 (2) cover the full criteria for the father). 

If the mother and the father satisfy all of the criteria identified within the SPL Regulations, they then have to take certain steps with regards to their respective employers, namely a notice of entitlement to take shared parental leave and a period of leave notice (and if requested provide a copy of the child’s birth certificate).

In simple terms calculating the amount of SPL that is available to the mother and the father will be determined by the total amount of maternity leave or the total amount of maternity pay (or maternity allowance) that has been taken. 

As is already evident from the first part of the blog, the steps the mother and father have to consider and then actually take can be complex to personally understand, this all happens even before they have notified their retrospective employers of their intentions.

From a practical point of view many businesses, have embraced family friendly rights, flexible working, job sharing and remote working but the problem of getting mothers back into work after maternity leave is still falling short.  Only recently the Women and Equalities Committee report on pregnancy and maternity discrimination highlighted that the number of expectant and new mothers who left their jobs has almost doubled since 2005.  This has resulted in the Equality and Human Rights Commission (“EHRC”) announcing a number of employers have joined the EHRC’s initiative, Working forward – supporting pregnancy and maternity rights, which aims to tackle the barriers that prevent a return to work and job progression.

The uptake of SPL has been lower than anticipated.

In order for this to change companies should take steps earlier on in the build up to maternity leave, to recap and inform employees on all options available with regards to their work / life balance.  This should provide a greater opportunity for mothers and fathers to be able to discuss their desires and for businesses to look at the internal mechanisms of these options earlier on the process.  Of course, those desires may change once the employee’s child has been born, but the considerations already discussed between the parties can then be used as a foundation to develop those options in practice further.


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Lessons to learn over your morning coffee
Wednesday 10th February 2016

Starbucks aren’t strangers to being in the news and yesterday was no exception. Meseret Kumulchew, a supervisor at Starbucks, successfully sued the company for disability discrimination after they accused her of falsifying records. Starbucks rejected her explanation that the discrepancies in her records were errors due to her dyslexia and as a result reduced Ms Kumulchew’s duties and told her that she needed to retrain. She told BBC News that their actions caused her such distress she considered taking her own life.

Whilst the precise details of the judgment are not yet clear, there are a number of important lessons that employers should take away from the headline:

There are important lessons for employers arising from the employment tribunal decision in the case of Meseret Kumulchew against her employer Starbucks. Firstly, it is an important reminder to all employers that employees with dyslexia can be classed as disabled pursuant to the provisions of the Equality Act 2010. Secondly, the case highlights the duty placed on all employers to make reasonable adjustments when dealing with staff with dyslexia. Thirdly, and more generally, it emphasises the need for employers to exercise a degree of caution and to carry out a thorough investigation when alleging dishonest or fraudulent behaviour on the part of an employee.


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Equal pay for women - why reducing the gender pay gap should be a priority for employers
Monday 19th October 2015

“Tackling the Gender Pay Gap is an absolute priority” for the Government according to Nicky Morgan, Secretary of State for Education and Minister for Women and Equalities. As part of this the Government has started the process of introducing mandatory pay gap reporting for businesses with 250 or more employees.

So, if tackling the gender pay gap is a priority for Government should businesses share that concern, even if they have less than 250 employees?

What is the extent of the gender pay gap in the UK?

According to the Government’s “Closing the Gender Pay Gap” consultation document “the gender pay gap measures the difference between men and women’s average salaries.”

Recent figures show that the overall UK gender pay gap stands at 19.1% (Source: the Office for National Statistics (ONS) “Annual Survey of Hours and Earnings, 2014 Provisional Results” (the ONS Survey)). Although this is the lowest gap since records began in 1997 when the gap was 27.5%, it still means that on average a woman earns about 80p for every £1 earned by a man. It also gives us the 6th highest gender pay gap out of 27 EU countries (not including Greece) (Source: “Tackling the gender pay gap in the European Union”, the European Commission)

What causes the gender pay gap?

The causes are complex and many overlap. They can have a significant cumulative impact on a woman’s earning potential during her lifetime. They include:-

  • Higher concentration of women working in lower paid sectors
  • The effects of maternity leave
  • Part time working
  • Unequal pay
  • Sex and maternity related discrimination in the workplace
  • Education choices and opportunities
  • Unconscious stereotyping and bias
  • Atypical working to facilitate caring responsibilities for children, grandchildren, ageing parents
  • Barriers to promotion
  • Approach to negotiating pay rises

What is the impact of the gender pay gap?

Not only does being paid less than a man mean that a woman’s take home salary is lower it can have a long term impact on women’s salaries, savings, career progression and pensions.

Studies have shown an average woman working full-time from 18 to 59 years of age will earn £361,000 less over her working life than an equivalent man. Also a woman’s personal pension pots are on average only 62% of men's. The difference in pension pots can be exacerbated by career breaks (for example maternity leave and/ or working part time to facilitate caring responsibilities). Especially at younger ages, this can have a profound effect on the final level of women’s pensions.

How does the Government plan to close the gender pay gap?

The Government hopes to tackle the gender pay gap and promote transparency by requiring employers to identify and make public the gender pay gap within their own businesses. The Coalition Government’s attempts under the voluntary Think, Act, Report initiative, which was introduced in 2011, to encourage companies to:-

  • Think: identify any issues around gender equality
  • Act: take action to fix those issues
  • Report: on how the business ensures gender equality

However, this does not appear to have lead to a culture change. Of the over 200 companies who had signed up to the initiative by August 2014 only 4 had published gender pay data (Source: “Just four companies reveal gender pay gap under coalition scheme”, the Guardian, 12 August 2014).

Given the lack of impact of a voluntary approach the Government has decided to pursue a mandatory reporting route for all companies with 250 or more employees from 2016. Consultation closed in early September and it is anticipated that the results of the consultation will be published this winter with new regulations coming into force by spring 2016.

Why should employers be concerned that there is a gender pay gap and what should you do to address it?

If you are a business with less than 250 employees you may be breathing a sigh of relief at not having to undertake mandatory gender pay gap reporting; however, the proposed introduction of mandatory reporting has raised the profile of the gender pay gap and businesses should be wary of burying their heads in the sand.

If you aren’t already analysing whether there is a pay gap based on gender in your business we would recommend that you consider doing so. Although completing such an analysis, may bring some difficult issues to light, it will at least give you a head start in trying to address any problems which may exist. Some commentators have suggested that one way of limiting the potential fallout from conducting a gender pay audit would be to try and rely upon legal professional privilege by involving your solicitor in completing an audit. If done properly this could restrict the possibility of the results being disclosed in future litigation.

Review your recruitment and promotion policies and procedures (and as part of this you could collect and evaluate data on the number of women applying for jobs and promotion and leaving the business) to ensure that you are not unconsciously dissuading women from applying. Assess your maternity leave and pay arrangements as well as the way in which flexible working and shared parental leave are operated within your business (including for prospective employees and senior employees). Training your staff to address unconscious bias and support gender diversity can also form part of a strategy for dealing with a gender pay gap.

You could also consider introducing mentoring schemes and support networks for women in your business and engaging with your staff to find out their views on how to reduce the gender pay gap.

Although the mandatory pay gap reporting will only initially apply to businesses with 250 or more employees it is perhaps likely that, over time, this requirement will eventually filter down to businesses with employee numbers below this level. Even if it doesn’t, if you decide to voluntarily address any gender pay gap you have and are transparent about this you can improve employee retention and morale, increase confidence in your pay and reward process and reduce absenteeism. You could also create a positive corporate image that will impact not only upon your employees, but potential employees, your clients and the wider community at large.


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Shared Parental Leave
Wednesday 17th June 2015

Effective from 5th April employed parents are able to share up to 50 weeks’ parental leave between them.

The statutory scheme is not particularly attractive to higher paid employees and a number of larger employers have promised enhanced schemes to aid recruitment and retention of their talent pool in a competitive market.

Schemes offering full or nearly full pay for fathers wishing to take shared parental leave for up to 12 months sound attractive but are less so when the eligibility conditions are taken into account. In fact some commentators have suggested that overly prescriptive conditions could act as a disincentive for fathers to take shared parental leave beyond a few weeks!

On the other hand a properly thought through enhanced scheme is likely to be seen as a great advantage in the battle to recruit and retain the best talent.

Shared Parental Leave is here to stay but recent studies have shown that although 61% of men would consider it nearly half would not want to take any more than the minimum two weeks’ paternity leave, possibly due to fear of losing status and potentially harming career progression.

Therefore the real challenge for employers is less about the cost of introducing an enhanced scheme more about encouraging take up. 


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National Minimum Wage and Carers
Monday 15th June 2015

The Social Care Sector are struggling to run efficient and effective services with properly trained and experienced staff. The climate is becoming increasingly challenging with the National Minimum Wage due to increase from October 2015.

Against a backdrop of revenue cuts and freezes, the Government wants all employers to pay a living wage “where they can afford to do so” and has promised to “take further steps” to eradicate non-payment of National Minimum Wage and the exploitation of migrant workers, and has also pledged to increase the NMW to £8 per hour by 2020.

Employers need to be aware that there are now stiff fines and a “name and shame” policy for paying less than the NMW.

Therefore remember that of the following situations must be paid at an average hourly rate which must not be less than the NMW:-

  • “Sleep-in” shifts where the worker is required to be at a particular place and available for work, even if they are allowed to sleep during this time.
  • Hours spent training which has been “approved by the employer”, whether or not this training takes place at the workplace. This may be the case even if training takes place outside of normal working hours.
  • Rest breaks to which the employee is legally entitled.
  • Time spent performing actual work. 

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