REUTERS | Shannon Stapleton
REUTERS | Shannon Stapleton

It has not taken long for “gender pay is not equal pay” to become an employers’ (and an employment lawyers’) mantra.

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) require employers with 250 or more staff to publish, by no later than 4 April 2018, six key pieces of information including their mean pay gap, their median pay gap, their mean bonus gap and their median bonus gap, based on “snapshot” payroll data as at 5 April 2017. Many employers are already finding that their headline numbers paint a difficult picture: a significant pay gap, often widening to a chasm on bonuses. Continue reading

REUTERS | John Kolesidis

The recent rejection by train drivers of the deal offered to end the long running industrial action affecting Southern rail raises the spectre of further strikes and additional disruption to many people’s journeys to work. There have been reports of businesses closing and employees losing jobs, as well as suggestions that industrial action may spread to other parts of the country. All in all it promises to be a long, hot summer for employees (and employers) located in areas affected by any strikes. Continue reading

REUTERS | Gleb Granich

In O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145, the Court of Appeal gave some useful lessons for employers (and employment lawyers) who are considering the thorny area of when it is reasonable and proportionate to dismiss an employee on long-term sickness whose prognosis is uncertain.

Background

Ms O’Brien, Head of Department at Bolton St Catherine’s Academy, had been on sick leave for over a year when her employment was terminated on the grounds of capability. She had been assaulted by a student, resulting in her long term absence for stress.  A significant factor in the decision to dismiss was Ms O’Brien’s uncertain prognosis regarding a return to work.  Her employer had requested information about her prognosis, but did not receive a satisfactory response. Continue reading

REUTERS | Phil Noble

Brexit. On 29 March 2017, the Prime Minister gave the European Council the Article 50 notification of the UK’s intention to leave the EU. In the absence of any agreed extension, the UK will leave the EU at midnight on 29 March 2019. Visit the Practical Law Brexit page and the Thomson Reuters Brexit resources for legal professionals for more information. Plans for the “Great Repeal Bill” are unfolding but the Brexit Secretary, David Davis, has attempted to clarify the proposed status of ECJ judgments and has also stated that there will be no cap on working EU migrants.

Discrimination. This month, the ECJ handed down two judgments concerning bans on the wearing of Islamic headscarves within the workplace. In Achbita, the ECJ held the headscarf ban was not direct discrimination if it was part of a ban on all visible religious symbols. However, it may constitute indirect discrimination. In Bougnaoui, the ECJ held that a customer’s objection to an Islamic headscarf could not be a genuine and determining occupational requirement justifying less favourable treatment. The employee’s dismissal for refusing to remove the headscarf was therefore directly discriminatory. Continue reading

REUTERS | Tobias Schwarz

In just a few weeks, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) will be in force, and the 5 April snapshot date around which affected employers’ first gender pay gap reports must be based will have passed. Employers, and their lawyers, have had some time to pore over the Regulations and accompanying Acas Guidance. Now, as employers gather their pay data and put the Regulations’ detailed calculation provisions into practice, previously unforeseen complications are likely to arise. Here, we focus on those we feel may cause particular problems.

Unrepresentative hourly rates for employees with variable hours

The main gender pay gap calculations (mean, median and distribution across pay quartiles) are based on the hourly rate of pay. In order to calculate an employee’s hourly rate of pay, the employer must take the (ordinary and appropriately pro-rated bonus) pay received during the relevant pay period, multiply it by an appropriate multiplier (7, divided by the number of days in the relevant pay period), then divide by the employee’s weekly working hours (regulation 6). Continue reading

REUTERS | Brian Snyder

Peninsula Business Services Limited v Baker is an interesting case in its exploration of the interface between perceived, attributed, associative and alleged discrimination and how they fit into the framework of the Equality Act.

The case

Mr Baker was not (or at least was not found to be) disabled. He had, however, told the Respondent that he had dyslexia. The Respondent also received a psychologist’s opinion that C was dyslexic. Nevertheless, although the Tribunal said that there would have been ample evidence upon which to decide that C was disabled, it had not in fact been asked to determine that question. Continue reading

REUTERS | Aly Song

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) (GPG Regulations) come into force on 6 April 2017. They will require large employers to report on the difference between men’s and women’s hourly pay and, separately, bonuses. The way in which bonuses need to be taken into account throws up a number of issues which have not been resolved by the final version of the GPG Regulations, or the draft guidance published by Acas and the Government Equalities Office (GEO). Continue reading

REUTERS | Baz Ratner

Tribunal fees. Headline news this month is that the Ministry of Justice has finally published its long-awaited post-implementation review of employment tribunal fees. Although it believes fees are working well, the MoJ concedes that there has been a substantial drop off in claims, and is consulting on proposals to widen the means test for fee remission. It also decided to make claims against the national insurance fund exempt from fees, effective immediately.

Employment status. In another “gig economy” case, the Court of Appeal has upheld a tribunal’s decision that a plumber was a worker and not an independent contractor, despite the wording of his contract. The government has finally published a two-year-old report on employment status, although it has now been superseded by the Taylor review of employment status which is currently underway.

Tribunal procedure. The Court of Appeal has reiterated the principles that apply when a tribunal decides whether to permit a party to amend their case, in upholding a tribunal’s refusal to allow a claimant to add whistleblowing onto his unfair dismissal claim at a late stage. Continue reading

REUTERS | Carlos Barria

It is not uncommon for a new claimant client to ask their adviser about the risk of a future employer finding out that they have brought a claim.  Previously, the adviser has been able to largely reassure the client that the risk was minimal in most cases.  However, the situation is now very different and it is incumbent on every claimant adviser to let their client know the potential risks.

On 9 February 2017, HMCTS published the online database of employment tribunal decisions which covers decisions from England, Wales and Scotland. HMCTS’ intention is that all employment tribunal judgments will be published on the database going forward. Continue reading

REUTERS | Carlo Allegri

Public attitudes to whistleblowers may have vastly improved but the legal landscape faced by those raising concerns still presents a variety of problems and is arguably becoming more hostile.

Legal aid cuts, the introduction of Employment Tribunal fees and reduced access to free legal advice have all combined to make the tribunal process more daunting for claimants and lessened their prospects of success. Inevitably, these changes particularly affect unrepresented whistleblowers since the complex legal landscape is hard to navigate alone. Continue reading