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account throws up a number of issues which have not been resolved by the final version of the GPG Regulations, or the draft guidance published by Acas and the Government Equalities Office (GEO).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

REUTERS | Benoit Tessier

Last week, the Ministry of Justice (‘MOJ’) formally launched its website of Employment Tribunal (‘ET’) decisions. Presently, the website contains around 140 past decisions from 2015 onwards. Future ET decisions handed down in England, Wales and Scotland will be uploaded onto the website. This post considers what impact the publication of decisions may have upon employers facing ET proceedings and a later post will consider the impact on employees. Continue reading

REUTERS |

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (GPG Regulations) are due to come into force in a little under three months’ time. Questions about their scope remain unanswered. The joint Guidance issued by ACAS and the Government Equalities Office on 30 January 2017 provides little clarification.

A key issue is unpicking which workers are in scope. The GPG Regulations use the wider Equality Act 2010 definition of employment, which encompasses employees, apprentices and anyone with a contract personally to do work. This covers zero hours employees and casual workers, plus other workers who provide personal services, which will include some independent contractors. Continue reading

REUTERS | Aly Song

In November 2016, the government commissioned a review of modern employment practices. It is being led by Matthew Taylor and will focus on what has become known as the “gig economy”. In this blog, we summarise our written evidence to that review. Our central plea was that our legislators provide certainty for all. In our view this can best be achieved by extending basic workers’ rights to all but the truly self-employed.

In recent years, the types of “employment” relationship in existence have diversified almost beyond recognition. We have, to name but some of the most common, agency workers , individuals working through personal service companies and zero hours workers. These arrangements can be used by employers to avoid granting rights to their workers. They can also be used by employers and workers to avoid taxation.

As a result of this diversification, almost every other appellate employment case seems to deal with the complexities of employee/worker status. Entitlement to the most basic and fundamental “worker” rights (the minimum wage, rest breaks, annual leave, protection against discrimination) can often only be established following lengthy and costly court battles. The recent Uber case is an obvious example. Continue reading

REUTERS | Jon Nazca

January 2016 has seen the Prime Minister set out her plan for the UK’s Brexit negotiation. In addition, the Supreme Court ruled that an Act of Parliament is required before Article 50 can be triggered and negotiations commenced. What might these developments mean for employers and workers?

The Prime Minister was clear in her speech that she is not going half way: this is a “hard” Brexit. This means a complete exit from the single market and the associated freedom of movement of people, services, goods and capital between the UK and EEA countries. New agreements and arrangements will be required to deal with issues such as immigration, trade and customs, including the provision of financial services across Europe’s borders. Continue reading