This month our update covers a new online service to help employers support disabled employees, the CIPD has found gaps in support for employees experiencing pregnancy or baby loss, there’s new draft guidance from the ICO, an update on the future of the four-day week, frustration over the scrapping of the plans to abolish the changes to off-payroll working rules, new guidance on the Professional Qualifications Act 2022, and research into allyships for underrepresented groups.
- Disability: New online service to help employers support disabled employees
- Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss
- Data Protection: ICO consults on monitoring at work draft guidance
- Working Practices: One third of employers expect a four-day week to be a reality within ten years
- IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules
- Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022
- Discrimination: Research finds intent to be an ally often does not translate into action
Disability: New online service to help employers support disabled employees
On 17 October 2022, the government announced a £6.4 million investment to help employers support employees with disabilities and health conditions. Part of this investment will fund a new online service that will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or out of work. The service will be free and can be accessed by any employer although it is aimed at smaller businesses who may not have in-house HR support or access to occupational health services. It is hoped this service will help small businesses develop more inclusive workforces.
An early test version of the Support with Employee Health and Disability service is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.
Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss
A report published by the CIPD has identified gaps in workplace support for employees experiencing pregnancy or baby loss. Only a quarter of employees surveyed received paid compassionate or other special leave in this situation and a fifth of employees received no support at all from their employer. After compassionate leave, the types of support that employees identified as being most helpful were understanding from managers and colleagues that it is a difficult time, paid time off to attend appointments and the option to work from home when needed.
The CIPD has confirmed that it will publish guidance to provide practical advice for employers to improve workplace support for employees experiencing pregnancy and baby loss based on the following five principles:
- Raise awareness, in a thoughtful and sensitive way, about the need for pregnancy or baby loss to be recognised as part of workplace wellbeing.
- Create an open, inclusive and supportive culture to break down stigma and let employees know they will be supported.
- Develop an organisational framework to support employees. This should include implementing specific policies, which the report identified only just over a third of employers have in place.
- Manage absence and leave with compassion and flexibility.
- Equip line managers to support people with empathy and understanding so that they feel comfortable and capable to have sensitive conversations with team members.
Data Protection: ICO consults on monitoring at work draft guidance
On 12 October, the Information Commissioner’s Office (ICO) opened a consultation on draft employment practices and published its draft guidance on monitoring at work. The guidance is open for consultation until 11 January 2023. The ICO is publishing its draft guidance on employment practices in stages with this being the first. It has also published an impact scoping document and plans to publish additional practical tools such as checklists.
The draft guidance covers key topics such as lawful basis for monitoring, transparency, fairness and accountability. It also provides guidance on DPIAs, security and retention as well as specialist topics such as covert monitoring, use of biometric data, call monitoring, dashcams and device activity.
This follows on from the ICO’s call for views in 2021. The ICO has published a summary of the responses to its call for views.
Working Practices: One third of employers expect a four-day week to be a reality within ten years
On 7 October 2022, the CIPD published a new report, The four-day week: Employer perspectives, which sets out employer perspectives on moving to a four-day week. The report is based on a survey which shows that 34% of respondent organisations consider that a four-day week for most workers is attainable within the next decade. One in ten respondents reported having already reduced working hours without cutting pay in the past five years (47% of those respondents confirmed the reductions were part of the COVID-19 furlough scheme). Many of the 2,000 employers surveyed felt that increased efficiency would be needed for a four-day week with no reduction in pay to be sustainable, either through organisations working smarter (66%) or the increased use of technology (68%).
The CIPD notes that the report is published amid rising interest in the concept of the four-day working week. A major trial in the UK, launched earlier this year, involves around 3,330 workers across 70 companies reducing their working week to four days with no loss of pay.
Despite the rising interest in adopting a four-day week, the report found that progress remains slow with just 1% of employers that have not already done so planning to reduce hours without lowering pay in the next three years. For organisations that have reduced working hours, the main drivers are improving employee wellbeing, helping with recruitment and retention, or a reduction in demand for products or services (36%, 30% and 32% of respondents respectively). The main challenges facing these organisations are that reduced hours do not suit everyone (32%), workers cannot achieve the same volume of work or output as before (30%), or a task requires someone to be present (26%).
A separate report, The four-day week: Scottish employer perspectives, has also been published.
IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules
People Management reported on 18 October 2022 that business groups are frustrated by new Chancellor, Jeremy Hunt, has taken a u-turn from Kwasi Kwarteng’s mini-budget where he had proposed repealing the IR35 off-payroll tax rules for contractors.
We reported in our September Employment Law General Update that the mini-budget had planned to repeal the 2017 and 2021 reforms from 6 April 2023. It wasn’t going to abolish IR35 but would have taken us back to the rules in place from 2000 (the Intermediaries Legislation), where the onus was on the worker to correctly assess their status and pay the correct amount of tax. However, our new Chancellor has backtracked on this meaning the situation remains the same that the end client remains responsible (and liable) for determining the IR35 status of contractors. The liability and responsibility is on the fee-paying party (often the recruiter) in the supply chain applying to public sector bodies, and medium and large private sector businesses. Small companies are exempt.
Industry experts are frustrated that the promised simplification of the tax rules is not being delivered and that many businesses had already started to undertake the vital work of how their systems would need to change by April 2023. Paul Farrer, founder and chairman of global recruitment agency Aspire, said that in turbulent times like this freelancers and contractors were needed for businesses to navigate peaks and troughs in demand. However, he called the recent IR35 news a “a backward step” – not just for workers, “but for the recruitment industry and businesses that rely heavily on the flexibility and skills of the independent workforce”. Other business leaders complain that this system is complex and poorly enforced, and badly needs proper reform. To read the whole article, see People Management.
Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022
The Professional Qualifications Act 2022 (PQA 2022) received Royal Assent on 28 April 2022, revoking the EU rules relating to the recognition of professional qualifications in the UK.
Among other things, the PQA 2022 introduced a new framework for the recognition of UK professional qualifications between different parts of the UK and overseas. Under this framework, UK regulators have a duty to publish information about the requirements for individuals to enter and remain in their professions (section 8, PQA 2022). In addition, UK regulators must, on request, share information with regulators from other parts of the UK (section 9, PQA 2022) and overseas regulators (section 10, PQA 2022). These obligations apply from 28 October 2022.
On 4 October 2022, BEIS published the following documents to assist UK regulators to comply with these new obligations:
- Guidance on the obligation to publish qualification requirements under section 8 of the PQA 2022, setting out what information must be published, when the obligation applies and when published information should be updated.
- Two separate guidance documents explaining the information-sharing obligations under, respectively, section 9 and section 10 of the PQA 2022. These documents set out when the legal requirements under the relevant section apply and what information must be shared. They also each contain a worked example of what a UK regulator should do when it receives a valid request for information.
Discrimination: Research finds intent to be an ally often does not translate into action
One of the first studies into allyship in the UK workplace (published by Wates on 27 September 2022) has found that intent to support colleagues from underrepresented groups has not translated into action. The study of over 5,000 employees found that 67% of UK employees consider themselves an “ally“. However, only 36% have spoken up against discrimination or exclusion of a colleague from a minority background when they have seen it at work. Around two-fifths of respondents said that they had spent time educating themselves about the experience of minorities, although this figure was lower for senior executives.
The same research found that 40% of employees have experienced microaggressions related to identity. The figure rises to nearly 60% for LGBT employees and to 64% for respondents from Black Caribbean backgrounds. Microaggressions experienced by respondents include a name being mispronounced because it is “too hard” (60% of Black African respondents and 59% of Black Caribbean respondents) and a colleague being told that they “don’t even ‘look’ gay” (42% of men from the LGBT community). Respondents from minorities were more likely to report witnessing microaggressions or discrimination. Microaggressions or discrimination related to sexual orientation was reported by almost half of lesbian, gay and bisexual respondents compared to 25% overall. Microaggressions or discrimination related to race or ethnicity were reported by 35% of respondents, rising to 62% of Black Caribbean respondents and 47% of Pakistani respondents.
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A change in prime minister has brought about some immediate changes to laws affecting employment law, such as the Bill on which laws will be retained from the EU, repeal of the off-payroll rules (IR35) and the dropping of the Bill of Rights Bill, which was set to replace the Human Rights Act. Sadly, two reports recently demonstrate that racism and gender discrimination persist at work, while FTSE 100 company chief executives are getting a massive pay rise. Meanwhile, ACAS has published new guidance on staff suspensions.
- Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons
- IR35: Off-Payroll Rules to be repealed by April 2023
- Human Rights: Bill of Rights Bill 2022-23 dropped by government
- Equality: New TUC report highlights prevalence of racism at work
- Discrimination: New report highlights persistence of gender discrimination in the workplace
- Pay: Chief executives of FTSE 100 companies see average pay jump of 39%
- ACAS: New guidance on staff suspensions published by ACAS
Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons
On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons, and written ministerial statements were made summarising the Bill’s provisions. A full legal update on the Bill will follow. The written statements explain that the Bill includes provisions to:
- Sunset retained EU law. Retained EU law in EU-derived secondary legislation and retained direct EU legislation will expire on 31 December 2023 unless otherwise preserved. Special features of EU law will be removed from retained EU law that remains in force after that date (assimilated law), ending the principle of the supremacy of EU law, general principles of EU law and directly effective EU rights on 31 December 2023. EU interpretive features will no longer apply to assimilated law. (The sunset date can be extended until 2026 for specified pieces of legislation.)
- Reverse the priority currently given to retained direct EU legislation over domestic UK legislation passed before the end of the transition period when they are incompatible, with a power to amend the new order of priority to retain specific legislative effects where necessary in specific circumstances.
- Give domestic courts greater discretion to depart from retained EU case law, and provide new court procedures for UK and devolved law officers to refer or intervene in cases involving retained EU case law.
- Downgrade the status of retained direct principal EU legislation for amendment purposes so that it no longer has parity with Acts of Parliament.
- Give the government powers to make secondary legislation so that retained EU law or assimilated law can be amended, repealed and replaced more easily, and enable the government (via Parliament) to clarify, consolidate and restate legislation to preserve its current effect.
The government’s news story added that all required legislation relating to tax and retained EU law will be made via the Finance Bill or subordinate tax legislation, and the government will introduce a bespoke legislative approach for retained EU law concerning VAT, excise, and customs duty in a future Finance Bill.
IR35: Off-Payroll Rules to be repealed by 6 April 2023
In his autumn statement on 23 September, Chancellor Kwasi Kwarteng announced that the UK government will scrap the 2017 and 2021 reforms to the IR35 off-payroll working rules in the next Finance Act, aimed to be enacted on 6 April 2023. Addressing the House of Commons he said, “reforms to off payroll working have added unnecessary complexity and cost for many businesses.” This has come as a bit of a shock to many industry experts who have commented that it’s unheard of for a Chancellor to repeal primary tax legislation without consultation. It is just the reforms which are being axed, and not the IR35 system itself, which will likely be celebrated by independent contractors who have found the measures to have wrought havoc to their business and added unnecessary levels of additional work for both the contractors and the businesses that engage them.
IR35 reform in the public sector was introduced in 2017 meaning that public sector bodies become responsible for determining the IR35 status of contractors – the responsibility shifted from the contractor to the end client, rather than the contractor taking the responsibility. In addition, the reforms meant the liability also shifted from the contractor to the fee-paying party (often the recruiter) in the supply chain. IR35 reform in the private sector in 2021 mirrored this but applied only to medium and large businesses. Small companies remained exempt.
The repeal of the 2017 and 2021 reforms from 6 April 2023 doesn’t abolish IR35 but takes us back to the rules in place from 2000 (the Intermediaries Legislation). This puts the onus back on the worker to correctly assess their status and pay the correct amount of tax. It should be noted that for services provided before 6 April 2023, the current rules will still apply, even where the payment is made on or after 6 April 2023.
However, contractors may need to hold off rejoicing just for now. Some Tory Ministers are already claiming they may rebel against the next Finance Act if the pound falls below the dollar. Dave Chaplin, CEO of IR35 Shield, says: “When you read the financial impact of the repeal in the Government’s Growth Plan document, you’ll see that there are six billion pounds worth of reasons why all rejoicing would be premature, and why all parties in the supply chain should not be complacent as we approach April 2023, nor beyond.”
Human Rights: Bill of Rights Bill 2022-23 dropped by government
On 7 September 2022, it was reported in the press that the Bill of Rights Bill 2022-23 had been dropped by the new government headed by Liz Truss and would not progress to its second reading, which had been scheduled to take place on 12 September 2022. The Bill would have repealed the Human Rights Act 1998 and reframed the UK’s legal relationship with the ECHR, to which the UK would have remained a signatory. Press reports suggest that the government is looking at different legislative options for reform.
Equality: New TUC report highlights prevalence of racism at work
The TUC has published a report ‘Still Rigged: Racism in the UK Labour Market 2022‘, based on extensive polling, which shows that racism and racial inequality continue to be experienced in the workplace. In addition to racism impacting the types of work ethnic minority workers are employed to do, two in five people reported having experienced racism at work in the past five years. The most common types of racial harassment are racist jokes and banter (27%), being made to feel uncomfortable through use of stereotypes and appearance-based comments (26%), being bullied or harassed (21%), and racist remarks directed at the respondent or in their presence (21%). Most instances were perpetrated by fellow employees and 15% were made by a customer, client or patient. For one in six respondents, the racism was perpetrated by a manager.
Only 19% of people who experienced racist incidents reported the last incident to their employer. Nearly half of people who did not report instances of racist abuse (44%) said that they did not believe the issue would be taken seriously. Even when incidents were reported to an employer, action was taken to prevent future harassment in only 29% of instances.
The TUC has recommended that the government, employers, enforcement bodies and trade unions work together to deliver a “collective, pre-emptive response“. Specifically, the TUC suggests that the “floor of working rights” be improved for everyone, that employers have a duty to embed race equality practices in their workplaces and that there are swift and effective penalties when workers experience racism.
Discrimination: New report highlights persistence of gender discrimination in the workplace
Randstad has published a new report ‘Randstad: Gender equality in the workplace 2022 (September 2022)‘ on gender equality in the workplace. To inform the report, 6000 workers in the construction, education, healthcare and technology sectors were surveyed. The survey sought insight into the status quo of UK workplaces, the persistence of gender discrimination, how employers in these sectors support their employees and what areas workers would like to see their employers focus on in the coming year. Among the findings are statistics which show that:
- Inappropriate behaviour or comments from male colleagues had been witnessed or encountered by 72% of women surveyed.
- Only 18% of women surveyed had never experienced gender discrimination.
- 7% of women reported having been passed over for promotion due to perceived gender discrimination.
- Just under 10% said they had been offered a less important role because of their gender.
- Employers are not doing enough to support female employees during the menopause, according to 73% of the women surveyed.
The report also highlights findings that are specific to each sector. Recommendations are made in three areas; ensuring the recruitment process is inclusive, fostering an inclusive workplace culture and weaving inclusion into the employee lifecycle.
Pay: Chief executives of FTSE 100 companies see average pay jump of 39%
Research by the High Pay Centre and Trades Union Congress (TUC) shows that the median average pay for CEOs of FTSE 100 companies increased by 39%, from £2.5 million in 2020 to £3.41 million in 2021. During the pandemic, many CEOs took a voluntary pay cut when employees were placed on furlough, but CEO pay has now surpassed the 2019 median of £3.25 million. A similar pay increase was found in the average wages of FTSE 250 CEOs (38%). The average bonus received by CEOs also jumped from £828,000 in 2020 to £1.4 million in 2021.
Previous research by the thinktank suggested that the pay ratios of FTSE 350 companies between CEOs and median employees would increase to new highs after the pandemic. The report shows that CEOs receive 109 times the average pay of British workers, a higher gap than in 2019 when CEOs received 107 times the average pay of British workers.
Frances O’Grady, the general secretary of the TUC, highlighted that the CEO pay jump comes at a time where workers are experiencing “the biggest real wage falls in 20 years.” Workers’ building dissatisfaction at significantly below inflation pay rises in the context of the current cost of living crisis is being increasingly manifested in industrial action. Strikes across multiple industries have already taken place, with further walk-outs due in the coming months.
ACAS: New guidance on staff suspensions published by ACAS
ACAS has published new guidance to advise employers on how to consider and handle staff suspensions at work, specifically during investigations. The guidance covers deciding whether to suspend someone, the process for suspending someone, supporting an employee’s mental health during suspension and pay and holiday during suspension.
ACAS recommends that because of the risk of breaching the employment contract and the stress that can be caused, a suspension should only be used when it is a reasonable way of dealing with the situation (such as while an investigation is carried out and there is a need to protect evidence, witnesses, the business, other staff or the person being investigated) and there are no appropriate alternatives. Employers should consider each situation carefully before deciding whether to suspend someone.
Suggested alternatives to suspension include:
- Changing shifts, site or working from home.
- Working with different customers or away from customers.
- Stopping working with certain systems, tools or on specific tasks.
A suspension may also be appropriate in order to protect an employee’s health and safety (such as in medical or pregnancy circumstances).
Employers should support a suspended worker by explaining the reason for the suspension, making it clear that it does not mean that it has been decided they have done anything wrong, maintaining pay and benefits, keeping the suspension as short as possible, keeping it confidential wherever possible, and staying in regular contact throughout. The worker should be informed of their suspension in person if possible. It is good practice to allow them to be accompanied at any suspension meeting and for the suspension to be confirmed in writing.
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