Employment Law General Update – December 2023

Legal

This month we have a plethora of publications and information for you. There are changes to National Living Wage, benefit and pension rates all due in April 2024. Two reports have been published recently looking at pay gaps for those with disabilities and people with different ethnicities, unsurprisingly the news is not positive. Some helpful guidance from the Home Office for employers to ensure they avoid the new raised penalties for employing illegal workers, and the government’s response to the occupational health consultation has been published. Lastly, the CIPD has produced an interesting report on menstruation at work, which is well worth a read to understand how this affects a large proportion of the workforce and what can be done to support women at work.

  • Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
  • Wage Updates: New benefit and pension rates published for 2024-25
  • Pay Disparity: TUC publishes latest data on disability pay gap
  • Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
  • Immigration: Home Office publishes updated Code of Practice on illegal working penalties
  • Health at Work: Government publishes response to occupational health consultation
  • Health at Work: CIPD report on menstruation and support at work

Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024

The government has accepted the Low Pay Commission (LPC) recommendations on National Minimum Wage (NMW) and National Living Wage (NLW) rates to apply from 1 April 2024. The LPC notes that this is the largest ever increase to the minimum wage in cash terms. The National Living Wage will apply to all workers aged 21 and over from 1 April 2024 (previously applying only to those aged 23 and over). The new rates are as follows:

  • • 21 and over rate: £11.44 per hour
  • • 18–20 year old rate: £8.60 per hour
  • • 16–17 year old rate: £6.40 per hour
  • • Apprentice rate: £6.40 per hour
  • • Accommodation offset: £9.99 per week

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Wage Updates: New benefit and pension rates published for 2024-25

The government has published proposed new benefit and pension rates for 2024 to 2025 including in respect of Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Statutory Shared Parental Pay (SSPP), Statutory Parental Bereavement Pay (SPBP), Maternity Allowance (MA) and Statutory Sick Pay (SSP). The rates of these benefits are normally increased in April each year in line with the Consumer Prices Index (CPI). The Written Statement to Parliament by the Secretary of State for Work and Pensions, Mel Stride, states that these rates will rise by 6.7% in line with CPI for the year to September 2023 and the new rates for the tax year 2024–2025 will come into effect on 8 April 2024. The DWP policy paper reveals that:

  • the standard rate for Statutory Maternity Pay (SMP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
  • the standard rate for Statutory Adoption Pay (SAP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
  • the rate for Statutory Paternity Pay and Statutory Shared Parental Pay (SPP and SSPP) will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
  • the rate for Statutory Parental Bereavement Pay will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
  • the rate for Maternity Allowance (MA) will increase from £172.48 to £184.03 per week (or be set at 90% of the individual’s weekly earnings if that amount is lower);
  • the rate of Statutory Sick Pay (SSP) will increase from £109.40 to £116.75 per week;
  • the amount of the weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP (but remain entitled to Maternity Allowance) will remain at £123.

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Pay Disparity: TUC publishes latest data on disability pay gap

The Trades Union Congress (TUC) has published new analysis of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers. That makes for a pay difference of £3,460 a year for someone working a 35-hour week – and means that disabled people effectively work for free for the last 47 days of the year. Disabled women face an even bigger pay penalty of 30% (£3.73 an hour, £130.55 a week, or £6,780 a year) less than disabled men –  effectively double discrimination. The research also shows that the disability pay gap persists for workers for most of their careers. At age 25 the pay gap is £1.73 an hour hitting a high of £3.18 an hour, or £111.30 a week, for disabled workers aged 40 to 44. 

The analysis looked at pay data from across the country and found disability pay gaps in every region and nation of the UK. The highest pay gaps are in Wales (21.6% or £2.53 an hour), followed by the South East (19.8% or £2.78 an hour) and the East of England (17.7% or £2.30 an hour). 

The research found that disability pay gaps also vary by industry. The biggest pay gap is in financial and industrial services, where the pay gap stands at a huge 33.2% (£5.60 an hour). 

Not only are disabled workers paid less than non-disabled workers, they are also more likely to be excluded from the job market.  Disabled workers are twice as likely as non-disabled workers to be unemployed (6.7% compared to 3.3%). And the analysis shows disabled BME workers face a much tougher labour market – one in 10 (10.4%) BME disabled workers are unemployed compared to nearly one in 40 (2.6%) white non-disabled workers. 

The analysis shows that disabled workers are more likely than non-disabled workers to be on zero-hours contracts (4.5% to 3.4%). And disabled BME women are nearly three times as likely as non-disabled white men (6.0% to 2.2%) to be on these insecure contracts. 

The TUC says zero-hours contracts hand the employer total control over workers’ hours and earning power, meaning workers never know how much they will earn each week, and their income is subject to the whims of managers.  The union body argues that this makes it hard for workers to plan their lives, look after their children and get to medical appointments. And it makes it harder for workers to challenge unacceptable behaviour by bosses because of concerns about whether they will be penalised by not being allocated hours in future. 

The report goes on to discuss how Labour’s New Deal for Working People would affect workers’ rights.

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Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK

The Office for National Statistics (ONS) has published a new report on ethnicity pay gaps in the UK for 2022 which reveals, in particular, that Black, African, Caribbean or Black British employees continue to earn less median gross hourly pay than White employees, which has been consistent since 2012.

The main points from the report are that in the UK in 2022:

  • Black, African, Caribbean or Black British employees earned less (£13.53) median gross hourly pay than White employees (£14.35)
  • between 2012 and 2022, Black, African, Caribbean or Black British employees were the only ethnicity group to be consistently earning less than White employees
  • country of birth had an impact on how much employees earned: UK-born Black, African, Caribbean or Black British employees earned more (£15.18), while non-UK-born Black British employees earned less (£12.95) when compared with UK-born White employees (£14.26), a pay gap of negative 6.5% and 9.2% respectively
  • after holding personal and work characteristics constant, to provide an adjusted pay gap based on a like-for-like comparison, UK-born White employees earn more on average than most ethnic minority employees
  • when adjusting for pay-determining characteristics (e.g. occupation or where the job is), the pay gap narrowed and in some instances reversed, for example:
    • UK-born Asian or Asian British employees earned on average 11.9% more than UK-born White employees, but after adjustment it was estimated that they earned 1.9% less
    • UK-born Black, African, Caribbean or Black British employees, move from earning 6.5% more to earning 5.6% less compared with White employees

Other findings included that:

  • in relation to Mixed or Multiple ethnic groups, White and Black Caribbean employees (a Mixed ethnic group) had the lowest median gross hourly earnings (£11.75) in 2022, compared with White British employees (£14.42). This was a pay gap of 18.5%, the opposite of what was seen for the overall Mixed or Multiple ethnic employees
  • Asian or Asian British employees in 2022 earned more than White employees, with a pay gap of negative 3.3%. However, based on the more detailed ethnicity classification of Asian or Asian British employees in England and Wales, Chinese and Indian employees had higher earnings compared with White British employees, while Bangladeshi and Pakistani employees earned less compared with White British employees
  • a breakdown of White employees showed that the highest earnings were reported by White Irish employees (£20.20 median gross hourly pay), which represents a pay gap of negative 40.1% relative to White British employees. This suggests that White Irish employees are in higher-paid occupations
  • the main factors that explain most differences between the groups were: occupation, highest qualification level, geography, age and sex

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Immigration: Home Office publishes updated Code of Practice on illegal working penalties

The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time. There will be a sixty thousand pound (£60,000) (up from twenty thousand pounds (£20,000)) maximum penalty applied to any employer found to have been employing a person who is disqualified from working by reason of their immigration status in the UK.

The advise is that employers have a key role to play in preventing illegal working in the UK. They do this by carrying out right to work checks on people before employing them, to make sure they are allowed to do the work in question. If you are in any doubt, please contact us so that we can help you avoid a penalty.

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Health at Work: Government publishes response to occupational health consultation

The Department for Work and Pensions has published its response to the consultation it held on increasing employer use of Occupational Health Services entitled ‘Occupational Health: Working Better’. The government has evaluated the responses to the consultation and opted to introduce a voluntary minimum framework for quality occupational health provision and explore new voluntary workplace health and disability standards, examining options for a new small- and medium-sized enterprise group purchasing framework, and learning from the existing Workforce Expansion scheme to develop a long-term strategic occupational workforce approach.

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Health at Work: CIPD report on menstruation and support at work

The Chartered Institute of Personnel and Development (CIPD) has published the findings from its survey of over 2,000 women, aged 18–60. The report, CIPD: Menstruation and support at work looks at the prevalence and type of menstruation symptoms, their impact on work, menstrual health conditions and the impact these have on the ability of employees to stay in and progress at work. It highlights the difference workplace support can make and the types of adjustments that are seen to be most helpful when managing symptoms at work.

This detailed report provides an eye-opening (and at times quite shocking) insight into the extent to which women experience symptoms from menstruation (i.e. periods) and from menstrual health conditions, and the impact these have on them at work.

The report is helpful to both employers and employees in demonstrating the scale of the problem and the need for an open and supportive workplace—this may form part of the employer’s work on employee wellbeing or ESG issues.

Managers need to be educated and trained about menstruation and menstrual health and the employer should encourage a culture where women feel comfortable discussing their symptoms and the impact these have on them. This would benefit everyone because it would reduce misunderstandings about absences, reduce the risk of discrimination and, in time, hopefully help to reduce gender pay gaps.

In the report the CIPD explains that:

‘Employers offering appropriate support in the workplace can help people feel included, offer dignity and reduce embarrassment. It can increase employee attendance, but also legitimise absence where this is needed. It can increase employee performance, engagement, retention and employer branding.

Employers can improve employee experience by creating environments and work cultures that are menstruation friendly, and providing support for menstrual health conditions that are underpinned by the principles of compassion, empathy and inclusivity.’


The introduction to the report explains that:

  • the survey included over 2,000 women, aged 18-60, who currently menstruate, or have previously menstruated, while in employment;
  • ‘menstruation’ refers to the monthly period in which bleeding occurs;
  • ‘menstrual health’ has a broader meaning and recognises that while menstruation is a natural bodily function, some people experience physical and/or mental health symptoms and challenges linked to menstruation. These range from painful, heavy and/or irregular periods and premenstrual syndrome (PMS) through to formally diagnosed chronic health conditions such as endometriosis, adenomyosis, polycystic ovary syndrome (PCOS) and premenstrual dysphoric disorder (PMDD). Some of these conditions can have significant impacts on daily life and can also affect fertility;
  • while the report predominantly references women in relation to menstruation and menstrual health, the CIPD recognises that there is also an impact on some transgender and non-binary individuals who will require support and flexibility relevant to their needs.


What were the key findings?

Prevalence of symptoms

The responses to the survey showed that:

  • 57% of those responding currently menstruate each month and 92% say they have previously menstruated each month while in employment;
  • 79% of respondents have experienced menstruation symptoms, with the most common being abdominal cramps (60%), feeling irritable (52%), fatigue (49%), bloating (49%) and low mood (47%), but there are a wide range of symptoms;
  • those aged 18–34 were more likely to experience a high proportion of the symptoms;
  • 15% have a menstrual condition such as endometriosis, PCOS, PMDD or fibroids.

Impact at work

In relation to how these symptoms impacted on people at work, the report states that:

  • 69% of those who have experienced symptoms from menstruation report that they have had a negative impact at work, rising to 81% for people with a diagnosed menstrual condition;
  • the kinds of effects people have experienced are many and varied, but the main ones are feeling more tired (79%), working when they haven’t felt well enough to do so (61%) and feeling less able to concentrate (63%);
  • 53% had been unable to go to work at some point because of menstruation symptoms and for 4% this was the case every month;
  • 49% never tell their manager that their absence is related to their menstrual cycle;
  • 20% always tell their manager that their absence is related to their menstrual cycle;
  • employees are less likely to tell their manager if their manager is male;
  • reasons given for not telling their manager the real reason included that they felt the problem would be trivialised (45%), feeling embarrassed (43%), that they prefer to keep the matter private (42%), that there’s too much stigma/ taboo (35%), that the employer/ manager wouldn’t be understanding (24%), having a male manager (24%) and worried the manager would think that performance would be affected (19%);
  • people are more likely to feel supported by colleagues than by their employer or manager (41%, compared with 21% and 26%, respectively);
  • 12% of employees report that their organisation provides support for menstruation and menstrual health and 67% said there is no support available;
  • the most common support available is free period products (18%), paid sick leave (15%) and paid time off for medical appointments (12%);
  • the types of support that respondents said would be most helpful included free period products (53%), planned flexible working (44%), more breaks when needed (41%), paid time off for medical appointments (39%), paid sick leave (32%), access to a rest room (e.g. lounge area) (31%), adjustments to work tasks (28%), a better equipped bathroom (e.g. with a shower) (27%), clothing change (25%), and free hot water bottles (23%).

The wider impact of menstruation at work

The findings of the report include that:

  • 6% of respondents say that menstrual symptoms have impacted them in a way which has led to formal action at work;
  • 7% feel they have been discriminated against at work because of menstrual symptoms (those with a male manager (8%) are more likely to say this than those who have a female manager (4%));
  • a lack of support has promoted 8% to leave or consider leaving their jobs;
  • 12% say that their menstrual symptoms have had a negative impact on their career progression;
  • workplace support makes a difference with those who work in organisations without support more likely to say that their symptoms had a negative impact on their career progression (14% compared with 5% who work for organisations with support).

Recommendations and good practice

The CIPD makes the following recommendations for supporting menstrual health in the workplace:

  • build an open and inclusive culture where menstruation is normalised thorough supportive discussions and open dialogue;
  • create awareness and tackle stigma;
  • develop a support framework;
  • train and support people managers.

For full details of how these can be implemented, see pages 13–14 of the report.

In addition to the recommendations above, organisations can offer specific support for employees experiencing menstrual health conditions, e.g.:

  • embedding good people management practices;
  • creating the climate for successful sharing of information;
  • ensuring employees have easy access to information and support;
  • managing absence and performance management with compassion and flexibility;
  • providing access to, and training in, work adjustments.

For further information on ways to implement these in the context of menstrual wellbeing and health, see pages 14–15 of the report.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.