UK: parliamentary committee inquiry into enforcement of the Equality Act; report into age discrimination
The House of Commons Women and Equalities Committee has launched an inquiry into the enforcement of the Equality Act 2010 and the effectiveness of the EHRC, with submissions sought by 5 October 2018.
Lack of enforcement was one of the themes highlighted in the Committee’s report into age discrimination published in July. The Committee recommended that larger employers should be required to publish the age profile of their workforce and that all jobs should be available on flexible terms unless an employer can demonstrate an immediate and continuing business case against doing so. It also proposed a statutory entitlement to five days’ paid carer’s leave, and four weeks’ unpaid leave. The Government is yet to respond.
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
The FRC has published a new version of the UK Corporate Governance Code applicable to accounting periods beginning on or after 1 January 2019. The changes include a requirement to have a board-monitored whistleblowing mechanism and a mechanism for workforce engagement, additional diversity reporting requirements and a greater focus on diversity in succession planning, and that remuneration committees should take into account workforce remuneration policies when setting director remuneration. See our corporate governance briefing here for more detail. Reporting requirements for some companies have also been amended by the Companies (Miscellaneous Reporting) Regulations 2018 applicable to financial years beginning on or after 1 January 2019, introducing mandatory reporting on employee and stakeholder engagement and information on the ratios between CEO and average staff pay.
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: Supreme Court confirms employers do not owe duty of care to employees in relation to conduct of the litigation
The Supreme Court has overturned the Court of Appeal ruling (discussed here) and held that, where an employer is sued on the basis that it is vicariously liable for the acts of its employees, it does not owe those employees a duty to defend the proceedings in such a way as to protect their economic or reputational interests (James-Bowen & Ors v Commissioner of Police of the Metropolis).
The court unanimously concluded that it would not be “fair, just and reasonable” to extend an employer’s implied contractual or tortious duties in this way given that this would potentially stifle an employer’s defence of claims and would require it to “constantly look over its shoulder” for fear of exposing itself to claims by employees that the defence should have been run differently.
The decision provides welcome reassurance for any employer (or quasi-employer, as in this case) facing claims based on the alleged wrongdoing of its employees, particularly where fraud or other serious wrongdoing is alleged and there is potential for the employees to face public criticism. See our litigation blog post for further details.
The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that where an employee’s internal appeal against dismissal is successful, the effect will be to reinstate the employee with retrospective effect. The earlier dismissal will ‘vanish’ without any need for the employee to ‘accept’ this, preventing the employee from claiming unfair dismissal based on the earlier dismissal.
However, in this case the dismissal had been based on two charges of gross misconduct, the second of which would have resulted in a reference to the Disclosure and Barring Service. The employee’s appeal was successful on both counts, but the letter confirming the decision only addressed the first charge. The Court considered that the failure to communicate the decision on the second charge and to confirm that no reference would be made to the DBS was arguably a breach of trust and confidence which might amount to constructive dismissal (an issue remitted to the tribunal). The decision serves as a reminder to employers to ensure that appeal decisions are properly communicated.
The Government Equalities Office is consulting until 19 October on its proposals to reform the Gender Recognition Act 2004 and make it easier for a trans person to obtain a gender recognition certificate. The consultation also considers issues for non-binary gender and intersex individuals.
The Government Equalities Office has published its response to a consultation on how best to address caste discrimination in Britain, concluding that this is best dealt with by case law and that it will remove the Equality Act obligation to legislate in this field. Current authority suggests that caste is protected to the extent that it is bound up with racial origin.