On 2 August 2018 the House of Commons’ Business, Energy and Industrial Strategy Committee published a report on the gender pay gap reporting obligation introduced from April 2017. The report notes that the national median gender pay gap is 18.4%, but 13% of those reporting had gaps in excess of 30% and gaps of 40% or more were not uncommon in some sectors (which the Chair described as “obscene and entirely unacceptable”). 78% of all reporting organisations had a pay gap in favour of men. The report calls for quicker and more effective action to close the gender pay gap and recommends that the Government adds the following requirements to the regulations, to apply to reports published in April 2019: Continue reading
On 1 August 2018 the Government Equalities Office (GEO) confirmed that 100% of employers covered by the new gender pay gap reporting obligation have now published their first report (disclosing data as at April 2017). The Equalities and Human Rights Commission noted that it would now be turning its attention to the accuracy of reporting, amidst suggestions that as many as one in six organisations may have reported incorrectly (see here).
The GEO also published new guidance on the effectiveness of various approaches to reduce the gap, in order to help employers create more effective action plans (although of course the specific actions adopted should be tailored to the particular causes of an individual employer’s gender pay gap). The actions on which there is evidence indicating a positive impact are: Continue reading
On 7 August 2018, the Victorian Government opened a period of public consultation for the exposure draft Regulations under the Labour Hire Licensing Act 2018 (Vic).
Submissions are due by close of business on 5 September 2018.
A brief summary of the draft Regulations is below.
UK: Diversity Developments – presentation of pay gap data, proposals on parental leave and dress code guidance
- The Government Equalities Office has published the findings of a commissioned study (here) concluding that the clearest and most accessible way of presenting gender pay gap figures is to display them visually as coins or as the amount which women earn for every £1 men earn (rather than percentages). The latter approach has now been added to the data on the government’s pay gap website, which also now includes bar charts to show the gender split by pay quartile and displays an employer’s data all on one page. The study also found that benchmarking improved comprehension, so may lead to pressure on the government to add visual benchmarking to the published data in future.
Employers can have more confidence that an “entire agreement” or “no oral modification” clause in an employment contract is likely to be effective in preventing extraneous contractual terms or oral variations respectively, following a Supreme Court ruling overturning the Court of Appeal in Rock Advertising Ltd v MBB Business Exchange Centre Ltd (see our Litigation blog for further details). The Supreme Court in Pimlico Plumbers referred to this ruling confirming its applicability in the employment sphere.
Employers should be aware that, where they provide different levels of PHI benefit through a flexible benefits scheme, this may mean that only part of the PHI benefits being paid to an employee can be offset against a loss of earnings claim against the employer.
- In Pettigrew v HMRC the First Tier Tribunal has held that settlement payments made by reference to underpaid past earnings arising out of a claim of discrimination against part-time workers were fully taxable as employment income. The appellant referred to the earlier case of Mr A v Commissioners for HMRC where it was held that a settlement sum representing underpaid salary and bonuses due to racial discrimination was not taxable, a decision which HMRC did not appeal. However, the Tribunal in Pettigrew did not accept this – noting in particular that the Tribunal in Mr A were not referred to the correct legal authorities and in particular the principles in Kuehne + Nagel (that for a payment to be an emolument, employment need not be the sole cause but only sufficiently substantial) and Mairs v Haughey (that a payment will usually take its taxable character from the payment which it substitutes). Both Pettigrew and Mr A are only First Tier Tribunal decisions and so not binding, but the case is a firm indication that HMRC is now likely to seek to fully tax compensation for loss of earnings arising from discrimination during employment.
UK: Relying on a series of acts – courts confirm approach to ‘final straw’ constructive dismissal claims and summary dismissal for acts which are not individually gross misconduct
Employers should note that, even where an employee seems to have ‘moved on’ from complaints that a series of acts by the employer cumulatively amounted to a breach of trust and confidence, a further act could revive the employee’s right to resign and claim constructive dismissal.
UK: Disability discrimination – need to consider possible link between misconduct and an employee’s disability before deciding disciplinary action
When disciplining a disabled employee, employers need to consider carefully whether they should obtain medical evidence on any possible link between the employee’s actions and their disability.
The Court of Appeal has upheld a tribunal ruling that an employer was liable for discrimination arising from disability where it dismissed a teacher with cystic fibrosis for showing an 18-rated film to younger children, despite the employer having reasonably concluded on the evidence available that there was no connection between the employee’s misconduct and his disability (City of York Council v Grosset). The employee accepted that he had made an error of judgment but contended that this was due to the high levels of stress he was suffering, caused by the effect of increased work demands on his disability. The potential link had been mentioned by the employee, but the medical evidence available to the employer at the time of dismissal did not suggest a causal link. However, medical evidence available by the time of the tribunal hearing clearly established that link.