The pandemic has presented a constant challenge for employers in keeping up with frequent changes to rules and guidance. As the restrictions now start to ease, we set out below a summary of recent developments:
- Although the “stay at home” instruction has been lifted from 29 March 2021, individuals are still asked to minimise travel and the “work at home wherever possible” instruction remains in place (until Step 4 of the roadmap for easing restrictions, currently projected to be 21 June 2021, at the earliest). Where staff cannot work from home, employers of any size can now register their interest in providing twice-weekly workplace lateral flow tests, while those with at least 10 employees who cannot provide workplace testing can instead register to order tests for employees to collect and use at home. Tests will be available free until the end of June. Employers should register their interest by 12 April 2021 (even if they will not start testing immediately) – see further details here and register here. The government has also published general guidance on workplace testing and specific guidance on the reasonable steps to facilitate tests that an employer should take if it requires staff to travel regularly across UK borders, here. Anyone travelling abroad from England, including for essential work purposes, must now complete a declaration form for international travel (except for travel to Ireland).
- Acas has updated its guidance to provide further information about workplace testing and vaccinations, recommending employers encourage and incentivise (for example, by offering fully paid leave for vaccination appointments and absence due to side-effects, and for self-isolation after a positive test) rather than require employees to have tests/vaccines, and that policies should be put in place after consultation with the workforce. The government’s ‘working safely’ guidance makes clear that testing/vaccination does not remove the need for measures to make workplaces COVID-19 secure.
- The government intends to review the use of measures such as social distancing, masks, and the potential for COVID-status certification ahead of Step 4 of the roadmap.
- From 1 April 2021 individuals categorised as extremely clinically vulnerable are no longer advised to shield (and so will no longer be eligible for Statutory Sick Pay while shielding, although furlough is still available); the advice remains that these individuals should work from home if possible. The guidance for women who are 28 weeks pregnant and beyond or with underlying health conditions remains that additional precautions are appropriate and that this may require working flexibly from home in a different capacity or paid suspension.
- Earlier this month the Chancellor confirmed that the Coronavirus Job Retention Scheme is to be extended until the end of September 2021 (although the Treasury Direction has not yet been made). From July, the government will introduce an employer contribution towards the cost of unworked hours, set at 10% in July and 20% in August and September.
- The Treasury Direction extending the CJRS until 30 April 2021 clarified that for employees on variable pay, furlough pay in March/April 2021 (which is based on the higher of the average income for 2019-2020 and a corresponding month lookback rate) should refer back to the corresponding month in March/April 2019, and not March/April 2020 (as that would involve looking at a period when employees might already have been on furlough pay). The calculation for ‘usual hours’ of work is similarly amended.
- Regulations have been made extending once again the temporary provisions on calculating a week’s pay for statutory notice and redundancy pay purposes (to avoid disadvantaging an employee who has been furloughed on reduced pay during the calculation reference period) to apply until 30 April 2021 (rather than ending on 31 March 2020). Presumably a further extension will be made in due course to cover the remainder of the CJRS. A recent tribunal decision has clarified that the original regulations in force from 31 July 2020 do not apply to the calculation for any part of a notice period prior to that date.
- The income tax and NIC exemptions for employer-provided and employer-reimbursed Covid-19 antigen tests and for reimbursement for home office equipment are also being extended through to the 2021-22 tax year. The SSP Rebate Scheme allowing eligible employers with fewer than 250 employees to apply for reimbursement of two weeks’ SSP per eligible employee for sickness absence due to COVID-19 will also continue for the time being.
- The Equality and Human Rights Commission has suspended enforcement of the gender pay gap reporting deadlines for the 2020-21 reporting year to 5 October 2021, although employers are encouraged to report earlier if possible.
- Legislation has been drafted to extend the right not to be subjected to detriment for taking certain steps when faced with serious and imminent danger at work, currently only available to employees, to protect ‘workers’ too, with effect from 31 May 2021. This follows the successful judicial review claim brought by the IWGB union summarised in our blog post here. The draft explanatory memorandum notes that changes will also be made to PPE regulations later in the year to extend these to cover workers as well as employees.
- A BEIS report has highlighted the increased incidence of domestic abuse during the pandemic lockdowns and recommended employers provide awareness training and comprehensive policies. Acas guidance on working from home now addresses steps employers can take to help, and there is also a #YouAreNotAlone employer pack. The government is to establish a working group to drive broader culture change. The guide produced by the CIPD and EHRC last year is available here.
Please do get in touch with your usual Herbert Smith Freehills contact if you would like to discuss any of these developments further.
Due to the Coronavirus outbreak, the Government Equalities Office and the Equality and Human Rights Commission have this morning suspended enforcement of the gender pay gap deadlines for this reporting year (2019/20). The decision means that there will be no expectation on employers to report their data. See the announcement here.
In July 2019 the Government published its response to a consultation on extending redundancy protections to those on family leave, but without specifying any particular timetable for doing so.
Currently women on maternity leave are given priority over any suitable alternative vacancies should their role be made redundant. An employer’s failure to offer any such available vacancies renders the consequent redundancy dismissal automatically unfair. The Government has committed to extend this right of priority over vacancies to apply from the point at which the employee notifies the employer – whether orally or in writing – that she is pregnant, until six months after the end of maternity leave (even if the mother does not immediately return to work due to taking another form of leave at that point).
Similar protection will be available for those taking adoption leave. The Government intends also to provide protection for those taking shared parental leave, proportionate to the amount of leave taken and the threat of discrimination, but has yet to determine exactly how this will work. No additional protection will apply to paternity leave.
The Government will also establish a taskforce of employer and family representative groups to make recommendations on improvements to the information available to employers and families on pregnancy and maternity discrimination, and to develop an action plan to facilitate pregnant women and new mothers staying in work.
The Government also published Good Work Plan: Proposals to support families setting out three new consultations on:
- a new right to neonatal care leave from ‘day one’ of employment, with flat rate statutory pay conditional on 26 weeks’ service at the 15th week before the baby is due. Where a newborn is in hospital for neonatal care for at least 2 continuous weeks, the number of weeks, capped at a limit to be specified (suggested options are 2, 3, 6, or 12 weeks), would be added on to the end of maternity or paternity leave. Consultation ends on 11 October 2019.
- whether larger employers (with 250 or more employees) should be required to publish their policies on flexible work and family related leave and pay on their websites, possibly with key information to be included on the government’s gender pay gap reporting portal; the consultation also asks whether and how (all) employers should be required to set out their approach to flexible working in job adverts. Consultation ends on 11th October 2019.
- the case for a potentially radical reform of family leave and pay, including possible changes to paternity, shared parental and maternity leave and pay and their possible replacement with a single ‘family’ set of entitlements, with the aim of encouraging greater sharing between mothers and fathers of leave and childcare responsibilities. The consultation closes on 29th November 2019. The Government is currently evaluating the shared parental leave regime and expects to report on this later in 2019.
The Government Equality Office has published Gender equality at every stage: a roadmap for change, which mentions some of the initiatives above but also confirms plans to consult on a new right to carers’ leave, review the enforcement of equal pay legislation (including consideration of when mandatory equal pay audits could be appropriate), and assess the effectiveness of gender pay gap reporting with consultation on any changes by 2021. The roadmap also mentions the possibility of requiring employers to publish retention rates for employees returning from parental leave.
The deadline for the second year’s gender pay gap reports has now passed, with roughly the same number of employers as last year’s total meeting the deadline (and almost half of them doing so in the last week). Just over half of private companies have reported gaps that are higher or no lower than last year’s, which is unsurprising given that, even if employers have taken measures to narrow the gap, these are likely to take time to show results. However, commentators have used the lack of progress to urge the Government to make mandatory the publication of action plans to narrow the gap, a call that to date has been resisted by the Government (see here).
There is plenty of guidance available for employers looking for ways to try and improve their figures for next year. In addition to recommendations from the EHRC and a parliamentary select committee (see here), the Government Equalities Office recently published two sets of guidance, Eight ways to understand your gender pay gap and Four steps to developing a gender pay gap action plan, along with an action note and infographic summarising the evidence based actions employers can take to support women to progress, to help to close the gender pay gap and increase gender equality in the workplace. The Women and Work All Party Parliamentary Group have also launched How to recruit women for the 21st Century (see here for further details) which, among other recommendations, calls on the government to commission or publish new guidance for employers on positive action.
Employers are not currently required to report on the ethnicity pay gap; a Government consultation on introducing such a duty closed at the end of January 2019 and its response is awaited. In the meantime, a number of large employers have signed up to a pledge to report voluntarily, organised by Involve, which has published a Framework for Ethnicity Pay Gap Reporting to assist employers – available here.
Several important employment law reforms have come into force recently or will come into force shortly, both at the EU and French level. Below are some of the changes to expect for 2019:
With the second deadline for gender pay gap reports a month away, more guidance has been published (in addition to that covered here). The Government Equalities Office has published two sets of guidance, Eight ways to understand your gender pay gap and Four steps to developing a gender pay gap action plan, to help employers close their gender pay gaps. The first proposes a set of questions focussing on potential gender imbalance in recruitment, promotion or retention, starting salaries/other particular aspects of pay, or performance rating. It also suggests that employers ask whether there is sufficient support for part-time employees to progress, and whether both men and women with caring responsibilities are supported, stating that employers may wish to enhance pay for shared parental leave to encourage men to take it and to advertise all jobs as flexible by default. The second guide highlights the need for buy-in from senior people and the involvement of a wide range of stakeholders in developing an action plan, and emphasises the need for specific, time-bound targets and a named individual to drive the plan forward.
The Women and Work All Party Parliamentary Group has also launched How to recruit women for the 21st Century, a new toolkit to support female progression in the workplace. Suggestions include the introduction of name-blind and context-blind applications, avoiding asking applicants about their current salary, and adopting a flexible working culture to improve the pipeline. It also calls on the government to commission or publish new guidance for employers on positive action.
The Labour Party has pointed to more flexible work as essential to close the gender pay gap, to facilitate working women and also encourage caring responsibilities to be spread more equally across the genders. Dawn Butler has stated that Labour would give employees the right to work flexibly from day one of a job (currently the right to request flexible work is available after 26 weeks) and create a presumption that work can be done flexibly which it would be for employers to rebut.
A recent law (law n°2018-771 dated 5 September 2018) has implemented a new obligation for companies of more than 50 employees to publish each year (through their website or by any means as long as their employees are informed of this) specific indicators relating to any potential pay gap or different treatment between men and women which exist within the company in France, and the measures which will be implemented in order to reduce such gap or differences.
This law provides for different types of indicators to identify the pay gap (e.g., differences in pay, pay rises, promotion statistics, etc.) depending on whether companies have more than 1,000 employees, between 251 and 999 employees, and between 50 and 250 employees.
As the second deadline for reports approaches, the Equalities and Human Rights Commission has published a report urging employers to accompany their figures with narrative reports and action plans with concrete, time-bound target-driven activities to reduce the gap. The report highlights ideas for action and recommends employers to refer to the Government Equalities Office evidence-based guide on practical steps to close the gender pay gap (discussed in our blog post here).
The Government has also published its formal response to the House of Commons BEIS Committee’s report (see our blog post here) on gender pay gap reporting, clearly signalling that it is not planning any immediate changes to the regime and will await the statutory review scheduled for 5 years post-implementation.
The Government Equalities Office has published a summary of the 2017/18 gender pay gap data submitted by employers as at May 2018, along with an Interim Gender Pay Gap Employer Insights Survey conducted at the end of 2017. The summary estimates that 48% of in-scope employers published an action plan in the first year of the duty (based on a sample of 400 employers) and 90% had produced a narrative to explain their figures. Only 17% of employers surveyed reported finding the GPG calculations difficult, yet according to analysis by Staffmetrix, employers are continuing to have problems: one in four of those who have submitted their 2018/19 data already have failed to fully comply with the requirements.
A survey by the Equality and Human Rights Commission has found that 61% of women look at employers’ gender pay gaps when applying for jobs.
Meanwhile the Office for National Statistics has reported some positive news. In the year to April 2018, the national gender pay gap fell from 9.1% to 8.6% for full-time workers, with the gap insignificant for those aged under 39, although it widens considerably for older age groups.
The Government has published a consultation on ethnicity pay reporting, making clear its position that this should become mandatory (possibly subject to a trial or phased approach with ‘early adopters’). The consultation is open until 11 January 2019.
The consultation is a response to a one-year-on review of progress made following the 2017 McGregor-Smith independent review. The 2017 report recommended introducing a mandatory reporting duty, but the Government’s preferred response at that time was to encourage voluntary reporting and monitor progress. Since then, both the Equality and Human Rights Commission and the House of Commons’ Business, Energy and Industrial Strategy Committee recommended consultation on a mandatory duty to report ethnicity pay gap data. Given the limited voluntary progress made in the last 12 months, the government has now agreed that a mandatory duty is required. (The review found that only 11% of employees had their ethnicity pay data collected; EHRC research published in August 2018 found that only 36% of employers collect and analyse data to identify any differences in pay and progression between different ethnic groups, and very few publish that pay gap data.) Continue reading