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.
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.
In a bid to increase the diversity of workforces, and increase access to employment for those with disabilities, Taiwan has a quota for the number of disabled employees. We take a look at how this works in practice.
Our article Recruitment and protection of talent: a boardroom issue for pharma is available on our pharma hub here. Technological advancement is key amongst the forces driving change in the pharmaceutical healthcare sectors, with businesses increasingly partnering with non-traditional players such as tech giants, agile biotech start-ups and insurers. In this article we explore how the industry’s increasing focus on tech, including AI, will give rise to a corresponding need to find innovative solutions to attract, retain and incentivise talent experienced in those areas, given the relatively small and highly mobile pool of potential recruits. We also consider the scope for businesses to protect their valuable knowhow and intellectual property from potential threats from ex-employees. Given the critical importance of talent to the pharma industry, we highlight issues that should be factored into strategic decision-making by the board, influencing choices on collaboration, acquisition and business location.
Employers who receive a reference detailing a potential recruit’s significant absence levels in their last job risk a disability discrimination claim if they withdraw the offer for that reason without making further enquiries about the individual’s health and possible reasonable adjustments (from occupational health advisors, the referee, and/or the recruit). Although the employer in South Warwickshire NHS Foundation Trust v Lee had a legitimate aim of recruiting an individual capable of carrying out the role, withdrawal of the job offer on receipt of such a reference without making further enquiries had not been a proportionate means of achieving that aim. It is also worth noting that the employer had received a second negative reference focussing on the individual’s performance and capabilities unrelated to health. The employer would not have been liable had it relied only on that reference and been able to prove this (eg, through a contemporaneous record of its reasons for withdrawing the offer).
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.
The Hong Kong Competition Commission (the “Commission“) recently released an advisory bulletin indicating that it has encountered a number of situations where businesses have engaged in employment-related practices which may give rise to competition concerns. Our employment and competition teams consider the key issues identified in the advisory bulletin and suggest strategies which organisations may adopt to minimize the risk of competition concerns arising.
Employers should take extra care when considering rejecting a job applicant because of a concern that a health condition is likely to deteriorate (even if that view is wrong). The statutory definition of disability includes progressive conditions which have an effect on ability to carry out normal day-to-day activities but this effect is not yet – but is likely to become – a substantial adverse effect. An employer’s concern based on an incorrect belief that the condition is likely to deteriorate may amount to a perception that the candidate has such a progressive condition; this will be a perception of disability as defined by statute and therefore an unlawful ground for refusing the candidate. It is not necessary to show that the employer knew the legal definition of disability and considered it satisfied, only that it thought the individual had an impairment with the features necessary to satisfy the definition.
A High Court has held in Various claimants v Barclays Bank an employer vicariously liable for the acts (in this case, alleged sexual assaults) of a doctor engaged by it as an independent contractor to carry out medical assessments on provisionally successful job applicants to ensure fitness for role. The Court ruled that the facts satisfied the test for vicarious liability, namely that the relationship with the perpetrator was one of employment or quasi-employment (involving sufficient control), and that the wrong was sufficiently closely connected with that relationship.
Employers should give careful consideration to requests to adjust recruitment processes where a disabled applicant asserts that the particular method chosen puts them at a disadvantage. A lack of flexibility is likely only to be justified if the employer can show that the specific test correlates exactly with a core competency of the job, and that competency cannot be demonstrated in another way which does not put the applicant at a disadvantage. If the effect of the disability is not clear, employers will either need to seek detailed medical evidence or give the applicant the benefit of the doubt. Adjustments could be giving extra time, or allowing alternative means of demonstrating a capability.