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Employment Law Newsletter – January 2022
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
COVID-19
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Flexible Working
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Data protection
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
Key cases:
On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
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Employment Law Newsletter – October 2021
Cases:
- Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
- Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
- Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
- Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
Other news:
- Data Protection: ICO data sharing code of practice under DPA 2018 in force
- Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
- New Legislation: Consultation response to tipping, gratuities, cover and service charges
- Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
- Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
- Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
Cases:
Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
In R (Cornerstone (North East) Adoption and Fostering Services Ltd) v Chief Inspector of Education, Children’s Services and Skills (Ofsted) [2021] EWCA Civ 1390, Cornerstone, an independent fostering agency which operates as a charity adhering to evangelical Christian principles, had a recruitment policy requiring foster carers to refrain from “homosexual behaviour“. Cornerstone is regulated by Ofsted, which determined that the recruitment policy should be amended because it was a violation of the Equality Act 2010 (EqA 2010) and the European Convention on Human Rights (ECHR). Cornerstone unsuccessfully applied for judicial review of Ofsted’s decision, the High Court holding that Cornerstone was subject to the EqA 2010 and the ECHR as a hybrid public authority, and that the policy unlawfully discriminated, directly and indirectly, against gay men and lesbians.
Cornerstone appealed to the Court of Appeal. In a unanimous judgment it held that Cornerstone’s policy was a clear instance of direct and indirect discrimination because of sexual orientation. The Court of Appeal considered whether the policy could be justified, under section 19 of the EqA 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.
For reasons similar but not identical to the High Court, the Court of Appeal held the policy was not capable of being justified as a proportionate means of achieving a legitimate aim. It emphasised that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. The requirement that discrimination on the ground of sexual orientation required weighty reasons to justify differential treatment was heavily underscored by statute in the case of a religious organisation that provided services to the public. Cornerstone had failed to provide credible evidence to justify the policy.
In concluding comments, the Court of Appeal noted that the appeal was a collision between two protected characteristics and accepted the need to protect those who are discriminated against in small numbers to progress equality for wider communities.
Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
In Rooney v Leicester City Council (EA-2020-000070-DA and EA-2021-000256-DA) the EAT has held that a tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010, and in dismissing her disability and sex discrimination, harassment and victimisation claims. The tribunal’s judgment failed to properly analyse the claims and consider the evidence presented to it, and it was not Meek-compliant as it did not adequately explain why the claims were dismissed. The claims were remitted to a differently constituted tribunal.
This case is an example of the difficulties faced by menopausal women in the workplace and the challenges that can arise in establishing that their symptoms amount to a disability. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. This is only the second appellate case concerning menopause discrimination at work that we are aware of, illustrating that these decisions are rarely appealed. The Women and Equalities Committee have recently held an inquiry into this area and their recommendations are awaited.
A reminder that ACAS has produced guidance for employers on how to deal with the impact of the menopause on employees at work: https://www.acas.org.uk/menopause-at-work.
Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
In conjoined appeals in Pitcher v Chancellor, Masters and Scholars of the University of Oxford [2021] 9 WLUK 293 regardingProfessor Pitcher (an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John’s College) and Professor Ewart (an Associate Professor in Atomic and Laser Physics at the University), the EAT has upheld two opposing employment tribunal decisions on the objective justification of a directly discriminatory employer justified retirement age (EJRA) operated by Oxford University and St John’s College. In the first case, an employment tribunal found the EJRA to be justified and the retirement dismissal fair. In contrast, in the second case, a differently constituted employment tribunal upheld the direct age discrimination and unfair dismissal claims, finding that the EJRA was not objectively justified.
The EAT dismissed the appeals against both employment tribunal decisions. The EJRA facilitated the achievement of the legitimate aims (inter-generational fairness, succession planning, and equality and diversity) by ensuring vacancy creation was not delayed. In terms of objective justification, the EAT held that the nature of the assessment undertaken by employment tribunals means it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims. While acknowledging that that it is undesirable for an employer to be faced with conflicting tribunal decisions relating to a particular policy, the EAT’s task is not to strive to find a single answer, but to consider whether either tribunal erred in law.
There were two material differences in the way in which the evidence was presented to the tribunals. First, one tribunal had the benefit of statistical evidence on the impact of the EJRA upon the creation of vacancies, which was not available to the other tribunal. Second, the tribunals received different evidence on the detriment suffered by those to whom the EJRA applied and so were entitled to give different weight to the mitigating factors relied on. Following a detailed analysis of the evidence considered and the reasoning adopted by each tribunal, the EAT concluded that neither had erred in law in coming to the conclusions they had on objective justification.
While the upholding of opposing decisions is undesirable from a wider employment law perspective, particularly for employers seeking to justify their own compulsory retirement policy, it demonstrates the importance that such employers should place on evidence or, if unavailable, reasoned projections of the impact of a policy on the achievement of its legitimate aims.
Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
In Secure Care Ltd v Mott EA-2019-000977-AT (19 October 2021) the EAT has overturned a tribunal’s decision that an employee had been automatically unfairly dismissed in a whistleblowing case. The claimant, Mr Mott, had made a number of complaints to his employer about staff shortages, long working hours, rest breaks and other staffing difficulties, which he said endangered health and safety. He was dismissed, ostensibly for redundancy, and brought a tribunal claim for unfair dismissal under section 103A of the Employment Rights Act 1996, arguing that he had been selected for redundancy because he had made protected disclosures.
The tribunal found that three of his nine alleged disclosures were qualifying disclosures and that these met the test for protected disclosures. The tribunal found that “the fact that he had been ‘pointing out problems’ (in a number of communications some of which amounted to qualifying disclosures) clearly had a material effect on his selection [for redundancy]“. Although there was a genuine redundancy situation, Mr Mott’s dismissal was therefore automatically unfair.
On the employer’s appeal, the EAT held that the tribunal had erred in two respects. First, it had wrongly applied the test in Fecitt v NHS Manchester [2012] ICR 372 (CA), in considering whether the protected disclosures “materially influenced” the employer’s treatment of the claimant. This test should only be applied to claims for detriment short of dismissal under section 47B. The unfair dismissal test under section 103A is whether the protected disclosures were the “sole or principal reason” for dismissal.
Second, the tribunal had failed to confine its consideration to the effect of the three protected disclosures. Rather, it had considered the combined impact and effect of the claimant’s communications about staffing levels and the associated problems this gave rise to.
Other News:
Data Protection: ICO data sharing code of practice under DPA 2018 in force
The Information Commissioner’s Office (ICO) has updated its Data sharing information hub, confirming that a new version of its statutory data sharing code of practice came into force on 5 October 2021. The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and Data Protection Act 2018 (DPA 2018), including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements. Section 121 of the DPA 2018 requires the ICO to issue a data sharing code, either by way of amendments to an existing code or by way of a replacement code. The new code replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998. The code has been issued under section 125 of the DPA 2018; a failure to act in accordance with it does not of itself make a person liable to legal proceedings in a court or tribunal, but the code is admissible in evidence in legal proceedings.
Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
Website ‘Moneymarketing.co.uk’ reports that The Pensions Regulator has warned gig economy employers that they must “voluntarily and promptly” comply with their auto-enrolment obligations or risk enforcement action.
This comes after Uber recently announced its plan to offer a pension scheme provided by NOW: Pensions to all its eligible UK drivers, following the Supreme Court’s February 2021 ruling that Uber drivers were “workers” and therefore qualified for auto-enrolment.
Commenting on the news, a spokesperson for the Regulator welcomed the “landmark” initiative, adding that “we want to see all eligible workers in this sector have access to pensions saving“.
New Legislation: Consultation response to tipping, gratuities, cover and service charges
The government has responded to the 2016 consultation on tipping, gratuities, cover and service charges, and has confirmed its intention, first announced in 2018, to legislate to provide that tips left for workers are retained by them in full.
Measures to be included in the forthcoming Employment Bill will include:
- Requirements for employers in all sectors not to make any deductions from tips received by their staff, including administration charges, other than those required by tax law.
- Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
- Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but should respond within four weeks.
- Requirements for employers to have regard to a statutory Code of Practice on Tipping. It is expected that this would replace the existing voluntary code of practice, published in 2009.
Workers will be able to enforce these rights in the employment tribunals. The response states that the Employment Bill will be brought forward when Parliamentary time allows. The new rules are expected to come into force no earlier than one year after the Bill has been enacted.
Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
Two new reports show that many employers continue to struggle to recruit and retain Black employees. Many Black job applicants feel they are treated unfairly in the recruitment process and continue to face racism at work with inadequate support. The Institute of Student Employers reported that 54% of employers have a strategy to attract Black candidates to their business but only 44% of employers track retention. Another survey, Race at Work, has found that although job applicants from Caribbean (71%) and African (67%) backgrounds are more likely to use a recruitment agency than white people (47%), only 34% of Black candidates felt they are treated fairly, compared to 49% of white people.
Black employees continue to face specific challenges in the workplace, including explicit and covert racism and a lack of representation of Black people in senior positions. Black graduates have called for more support to help successfully transition into the workforce. Currently, less than a quarter of employers provide dedicated support to help their Black recruits address the challenges they face.
The Institute of Student Employers identified that to make a tangible difference, CEO backing is required, and set out five ways companies can support Black graduates before and during their careers, including:
- Being an ally
- Preparing all students for diverse workplaces and addressing racism and diversity as part of this
- Turning recruitment into a force for equality – ensuring that recruitment processes are overhauled to ensure that they are not biased and discriminatory
- Maximising the potential of hires from Black heritage backgrounds – Recognising that organisations need to support hires from Black heritage backgrounds during their early careers
- Transforming your organisation and influencing the world around you – Calling on all stakeholders to make more fundamental changes to ensure representation at all levels of their organisations and that they should lend their voices to wider campaigns for racial justice.
Additionally, the Race at Work report makes several recommendations for the recruitment industry and employers including:
- Critically examining entry requirements, focusing on potential achievement rather than which university or school the individual went to
- Drafting job specifications in plain English and providing an accurate reflection of essential and desirable skills to ensure applications from a wider set of individuals
- Larger employers ensuring that the selection and interview process is undertaken by more than one person, ideally including individuals from different backgrounds to help eliminate bias
- Seeking opportunities to provide work experience to a more diverse group of individuals and stopping the practice of unpaid or unadvertised internships.
Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
A new report published by the Fawcett Society, Tackling Sexual Harassment in the Workplace, shows that at least 40% of women experience sexual harassment during their career. Twenty-three per cent of those surveyed said that the sexual harassment increased or escalated while they were working from home during the COVID-19 pandemic. Disabled women surveyed were more likely to have experienced sexual harassment (68%) than women in general (52%). Employees from ethnic minority backgrounds, both men and women, reported experiencing sexual harassment at a higher level than white employees, with rates of 32% and 28% respectively. The report also found that 68% of LGBT employees had experienced harassment in the workplace.
Culture, policy, training, reporting mechanisms and the way employers respond to reports are five critical elements to help create a workplace intolerant of sexual harassment. The report recommends that employers should:
- Take all forms of sexual harassment seriously.
- Treat employees who report sexual harassment with respect and empathy and ensure women feel able to report harassment, including facilitating anonymous reporting.
- Increase gender equality within the organisation, especially at senior levels.
- Demonstrate leadership commitment to tackling harassment.
- Measure their organisational attitudes towards sexual harassment by conducting an employee survey.
- Provide managers dealing with reports with guidance and support.
- Have a clear and detailed sexual harassment policy that is separate to their general harassment and bullying policy.
The recommendations in the report will form the basis of a sexual harassment toolkit for employers which will be published next January. Employers can sign up to receive a copy of the toolkit (see Fawcett Society: Sexual Harassment Toolkit for Employers).
Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
On 8 October 2021, BEIS published a report prepared by PwC, The Potential Impact of Artificial Intelligence on UK Employment and the Demand for Skills. For the purposes of the report, artificial intelligence (AI) is a collective term for digital systems and machines that can, in at least some ways, sense their environment, think, learn and take action in response to what they are sensing and their objectives. The report considers two main questions:
- Whether AI and related technologies (such as robots, drones and autonomous vehicles) will follow historical patterns by triggering significant structural labour market change.
- How large the disruption to labour markets from AI will be and what form it will take.
The report concludes that, while AI and related technologies should not cause mass technological unemployment (by displacing large numbers of workers from their jobs), they may lead to significant changes in the structure of employment across occupations, sectors and regions of the UK. The effects may be relatively small over the next five years but could become more material over the next ten to 20 years. They may add to income inequalities by tending to favour people with higher education and skills levels, who also tend to have higher earnings levels.
PwC’s modelling estimates that professional occupations will experience the highest net job gains over time, with nearly half the increase being in jobs for health professionals and the other half spread between scientists, researchers, engineers, technologists, educators, businesspeople, media professionals and civil servants. AI in these occupations is likely to be largely labour-augmenting and used to perform specific tasks that increase productivity (for example, lawyers using AI to read large numbers of cases to search for precedents and other arguments to use in a current case). Managerial occupations, for which tasks involved are difficult to automate, and occupations requiring “human touch” (such as caring or leisure) are also likely to experience net job creation. Other occupations are likely to experience changing patterns over time, with sales and customer services experiencing the highest rate of job displacement over the next five years, administration experiencing particularly high displacement in five to ten years and manual occupations (including taxi drivers) experiencing high rates of displacement but probably not before the 2030s.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment Law Newsletter – January 2021
A review of 2020’s biggest employment law issues and a look at what we should expect from the bright and glittery 2021.
