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.

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Filed under Jurisdiction: UK, Remuneration (including bonus and incentive plans), Workplace culture, diversity and discrimination (including bullying and harassment), Workplace flexibility and family-friendly rights

UK: Contract- Supreme Court breathes new life into “no oral modification” clauses

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.

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Filed under Jurisdiction: UK

UK: Compensation – impact of flexible PHI options on loss of earnings claim

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.

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Filed under Jurisdiction: UK, Remuneration (including bonus and incentive plans), Workplace culture, diversity and discrimination (including bullying and harassment)

UK: Discrimination – tax treatment of compensation, zero hours claims, and equal pay comparators

  • 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.

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Filed under Jurisdiction: UK, Working hours (including holiday, sick leave, overtime, rest breaks), Workplace culture, diversity and discrimination (including bullying and harassment)

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.

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Filed under Jurisdiction: UK, Termination of employment

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.

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Filed under Jurisdiction: UK, Working hours (including holiday, sick leave, overtime, rest breaks), Workplace culture, diversity and discrimination (including bullying and harassment)

UK: Whistleblowing – a Protected Disclosure Must Include Specific Facts, but These Can be Deduced From the Context of an Allegation

Workers may be entitled to whistleblower protection in broader circumstances than employers expect. It is clear that specific facts must be conveyed (which the worker reasonably believes tend to show one of six specified types of wrongdoing). However, although a simple allegation that an employer has breached a particular legal obligation is not enough by itself, the Court of Appeal has confirmed that the context can be taken into account, including gestures communicated at the same time, in determining whether facts have also been conveyed.

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Filed under Jurisdiction: UK, Whistleblowing

Australia: Federal Modern Slavery bill introduced to parliament

Closely following the passage of the NSW Modern Slavery Act on 21 June 2018 (NSW Act), a federal Modern Slavery Bill was introduced to Parliament on 28 June 2018. Debate on the Bill has been adjourned until the next Parliamentary sittings period, which begins in August 2018. The Government has reaffirmed its commitment to pass the Bill before the end of the year.

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: Australia

APAC: Background Checks

This month, we consider whether employers can conduct background checks by way of social media/internet searches on prospective employees, focussing on the position in Singapore, Hong Kong, Japan and South Korea.

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Filed under Data protection and privacy, Jurisdiction: Asia

Korea: Handling Employee Data

Under the Personal Information Protection Act (“PIPA”) any company which handles personal data will be deemed a ‘data handler’ and must comply with strict requirements. This includes employee personal data.

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Filed under Data protection and privacy, Jurisdiction: Asia