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UK Retailers named and shamed for failing to pay NMW

WH Smith, Argos and Marks and Spencer have been named alongside over 200 UK companies for failing to pay the statutory minimum wage to their employees.

The list issued by the Department of Business and Trade shows that the 202 employers had left 63,000 employees out of pocket, amounting to an overall penalty of nearly £7 million.

The most frequent reasons for underpayment by employers included: 

  • Pay deductions (39%);
  • Incorrect payments for working time (39%); and
  • Incorrect apprenticeship rates (21%).

Minister for Enterprise, Markets and Small Business Kevin Hollinrake explained that “paying the legal minimum wage is non-negotiable and all businesses, whatever their size, should know better than to short-change hard-working staff”.

The Government’s decision to name and shame can lead to significant reputational damage for businesses and demonstrates the importance of correctly paying employees. The current rates for the National Minimum Wage and National Living Wage can be viewed here: https://www.gov.uk/national-minimum-wage-rates).

Please feel free to contact the Employment Team at [email protected] for any assistance.

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Record rise in demand for dispute resolution services from ACAS

The Advisory Conciliation and Arbitration Service (ACAS) is an independent, impartial organisation mandated to liaise with both parties to an employment dispute with regard to possible settlement.

In its annual report, ACAS acknowledges that there has been a sharp increase in demand for its dispute resolution services. The services are aimed at resolving disputes in the workplace, without recourse to an employment tribunal and includes early conciliation, mediation support, collective conciliation and arbitration.

ACAS’s Annual Report also found that:

  • ACAS was involved in 621 collective disputes;
  • ACAS received 105,754 notifications for early conciliation, finding a resolution in over 72,000 cases which saved the UK an estimated £100 million;
  • The ACAS website, accessed 14.4 million times, remains popular amongst employees and employees who are seeking guidance on workplace rights; and
  • ACAS helplines received 649,000 calls.  

Employers are reminded that ACAS’ services can be initiated by them, not just employees. If an employer considers that employment tribunal proceedings may be issued against them, but the prospective claimant has not yet provided information to Acas to trigger the early conciliation procedure, the employer can contact Acas and request the services of a conciliator.

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Tribunal awards £100k compensation for gender-critical belief discrimination

In June 2021 the Employment Appeal Tribunal (EAT) held that gender critical beliefs (such as the belief that sex is biological and absolute) were philosophical beliefs and were consequently protected under the Equality Act 2021. In the case of Maya Forstater v CGD Europe UKEAT/0105/20/JOJ, CGD Europe was found liable for direct discrimination and harassment as they had failed to renew Forstater’s fellowship due to her gender-critical beliefs.   

In the remedies hearing, the tribunal awarded:

  • £25,000 for injury to feelings as the discriminatory acts were significant;
  • £2,000 in aggravated damages due to oppressive public statement;
  • £14,000 for loss of earnings (regarding the non-renewal of the fellowship);
  • £50,000 for the loss of earnings and earning capacity; and
  • £14,778.47 in interest.  

This case highlights the difficult position in which employers may find themselves whilst attempting to balance the competing interests of employees with different protected characteristics. It is important that employers faced with such a task take a sensible and balanced approach and seek legal advice.

Please feel free to contact the Employment Team on [email protected] for any assistance.

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Two-thirds of Women Sexually Harassed at Work

Sexual harassment and bullying have no place in modern workplaces” says TUC General Secretary Paul Nowa after a recent TUC poll revealed that three in five women have experienced sexual harassment, bullying or verbal abuse at work, increasing to nearly two in three for women between the ages of 25 and 34 (62%).

Of the 1,010 working women polled, 43% said that they have suffered a minimum of 3 incidents of sexual harassment, with only 30% reporting the incidents to their employer. The most common reasons given for not reporting harassment or bullying included:

  • Thinking that their employer would not believe the allegations or take them seriously (39%);
  • Concerns it would have a damaging effect on workplace relationships (37%); and
  • Worrying it would harm their career prospects (25%).

The risk of harassment in the workplace extends beyond other members of staff with 39% of complainants claiming that the perpetrator was a third party. Again, this risk increases for women aged 18 to 34 with 52% admitting they had experienced harassment from a third party at work.

The poll shows that employers must be mindful of incidents occurring offsite with 12% of incidents occurring over the phone or text messages and 8% online, by email, on social media or in a virtual meeting.

The poll comes following the TUC’s warning that some Conservative MPs and Lords aim to “sabotage” the new Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 which aims to impose a duty on employers to challenge sexual harassment in the workplace as well as protect workers from harassment and abuse from third parties.

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Long-term sickness: 2.55m unable to work.

Figures from the Office of National Statistics (ONS) have revealed that 2.55 million people in the UK are not at work because of long-term sickness, meaning that for every 13 employees, one is off on long-term sick.

The ONS report attributes these record figures to an evident increase in mental health conditions in young people and musculoskeletal issues. It is likely that the prevalence of these conditions is because of the unprecedented COVID-19 pandemic, which saw young people being isolated and people working from home without the correct equipment. 

Long-term sickness is classified as a period of continuous absence of four or more weeks and can cause a major burden on organisations. As such, it is important that all organisations actively manage long-term sickness, which should include the following measures::

  • implementing a comprehensive a long-term sickness policy;
  • Requiring employees on long-term sick leave to keep in touch and provide appropriate medical evidence;
  • Referring employees to occupational health experts;
  • Training managers in the management of ill health; and
  • Holding return-to-work interviews.

Please feel free to contact the Employment Team on [email protected] for any assistance.

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Reform: Handling flexible working requests

In light of the forthcoming changes to the flexible working provisions set out in the Employment Rights Act 1996, ACAS has initiated a consultation and issued a revised draft Code of Practice on handling flexible working requests.

The revised draft Code seeks to:

  • Clarify the law regarding the statutory right to request flexible working;
  • Provide advice on how to manage requests in a reasonable manner;
  • Encourage employers to actively promote the benefits of flexible working and approach requests with an open mind;
  • encourage employers to remain transparent throughout the decision-making process
  •  to actively offers appeals; and
  • To permit employees to be accompanied by a wider category of individuals during meetings.

There are no changes to the current eight business reasons for rejecting a request, which remain as follows:

  • The financial burden to the business being too high;
  • An inability of the business to reorganise work;
  • An inability to hire additional staff;
  • A negative effect on quality;
  • A negative effect on performance;
  • Causing an inability to meet customer demand;
  • The lack of work during the periods the employee proposes to work; and
  • Planned structural changes to the business.

Employers must be aware of the changes to the law on flexible working and through reference to the new draft Code when implemented, must handle all flexible working requests with care.  A failure to follow the procedure could result in an employee bringing a claim.

Please feel free to contact the Employment Team on [email protected] for any assistance.

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Campaigners call for four-day working week.

Coining the term ‘Burnout Britain’, the 4 Day Week Campaign Group has released a mini-manifesto ahead of the 2024 General Election which calls for amendments to the Working Time Regulations 1998 to reduce the maximum working week from the current 48 hours to a four-day, to a 32-hour working week with no loss of pay.

The mini-manifesto policies also include:

  • A change to flexible working guidance which would include the right for workers to request a four-day, 32-hour working week with no loss of pay;
  • A £100m fund to support companies in the private sector as they make the move to a four-day, 32-hour working week; and
  • An entirely financed four-day working week pilot in the public sector.

The campaign follows the success of the Campaign’s four-day working week pilot. The pilot engaged 61 companies and 2,900 employees across the UK, with 92% deciding to continue with a four-day working week without cutting pay.

Labour MP for Norwich South, Clive Lewis, encouraged Keir Starmer to “back this policy to give people some hope and reassurance that the future will be better under a Labour government.”  

Historically, the Labour Party has supported a four-day working week with some senior members allegedly backing the campaign. However, the campaign is not without opposition. A survey carried out by Survation noted that 44% of current Labour voters would be more likely to vote for the Conservatives if the 4 day week campaign had Labour backing.

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Shared Parental Leave: The Statistics

Only 1% of eligible mothers and 5% of eligible fathers take Shared Parental Leave (SPL) according to a recent report issued by the Department of Business and Trade.  

SPL is a family-friendly right that allows eligible parents (both birth and adoptive) to split 50 weeks of leave in the year following the child’s birth or placement with an adoptive family. If eligible, parents can receive Shared Parental Pay (ShPP).

The low take-up figures are despite the fact that parents who have experienced SPL reported numerous advantages in their work-life balance including more flexibility and balancing child-minding arrangements. Generally, the report shows that the majority of employers are content with the policy and its operation however, 1 in 5 managers in larger organisations admitted that they found SPL difficult to manage.

The report highlights that numerous variables effect the uptake of SPL including age, income and occupational status and that parents that use SPL and/or receive ShPP were more likely to be highly qualified and working for large organisations with a progressive attitude towards genders.

Although the uptake of SPL appears to be low, it is currently in-line with the trajectory predicted on its implementation in 2015.    

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McDonald’s second wave of sexual harassment allegations

February 2023 saw fast food giant McDonald’s sign a legal agreement with the EHRC in a bid to improve its handing of workplace sexual harassment complaints. However, 5 months on, the company faces over 100 new claims from former and current employees regarding sexual harassment, racism and homophobia.

The latest claims were exposed following a BBC investigation that documented:

  • 31 sexual assault allegations;
  • 78 sexual harassment allegations;
  • 18 racism allegations; and
  • 6 claims of homophobia.

It was reported to the BBC that managers were aware of and, in some cases, were responsible for the incidents detailed above.

In response, the EHRC has created a confidential hotline for affected members of staff noting that it was alarmed to learn about the new claims and that it intends to review them “closely in the context of our current legal agreement with McDonald’s to tackle sexual harassment of staff in its restaurants”.

Latest News

Why do women leave the workforce prematurely?

The British Standards Institution has conducted a survey of over 5,000 women across the UK, USA, Australia, China and Japan to determine why women prematurely leave the workforce.

Of the UK women surveyed, the report found:

  • Only 50% were confident that their generation would receive equal levels of flexibility and support to remain in the workforce as long as their male colleagues;
  • 21% considered that the main barrier to remaining in work was their caring responsibilities;
  • 20% believed that the main barrier to remaining in work was linked to the menopause, with 54% admitting it would be difficult to raise such issues with their employer; and
  • 71% believed that it would be helpful if employers were to address personal health and well-being issues in formal policies.

The report noted the negative impact that women prematurely leaving can have on an organisation, including productivity losses and wasted talent with 73% of the women surveyed agreeing that the presence of more experienced female colleagues would be beneficial to development.

To retain women in the workforce, employers could consider:

  • Implementing formal policies relating to menopause;
  • Encourage open dialogue to understand the needs of women within the organisation by asking what the business can do for them and acting upon suggestions;
  • Conduct training for managers and senior staff;  and
  • Offering flexible or hybrid working where appropriate.

Please feel free to contact the Employment Team on [email protected] for any assistance.

Latest News

The ‘Right to Disconnect’

Ahead of the 2024 general election, the Labour Party has hinted at the inclusion of a ‘right to disconnect’ within their manifesto which, if implemented, would limit employers from contacting workers outside of their working hours. The proposal is one of several reforms devised to protect workers and will likely be included in Labour’s “new deal for working people”.

The idea of ‘switching off’ from work is not a new one and would echo the law in countries such as France, Italy and Spain who offer the right to all workers. The latest European country to follow suite was Belgium, with all employers with more than 20 staff now required to introduce a ‘right to disconnect’ company policy.

Leaving aside the potential burden of such a new law to employers, adversaries to the concept are concerned that implementation will only serve to increase the substantial backlog of tribunal cases given that it would  be enforced through the employment tribunals.

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Ethical Veganism

In the case of Owen v Willow Tower Opco 1 Ltd ET/2400073/2022, the Employment Tribunal found that a care home worker’s alleged belief in ethical veganism was not genuinely held and was therefore not a protected belief under the Equality Act 2010.

The care home mandated that all staff were to receive the COVID-19 vaccination. This led to the Claimant raising a grievance, as she believed she should be exempt from the requirement as a result of her vegan diet.

Following this, the Employer referred the Claimant to occupational health, who verified that she had no health condition preventing her from being vaccinated. As s result, the Claimant’s grievance was not upheld and she was dismissed.

The Claimant submitted a claim to the Employment Tribunal for unfair dismissal and discrimination based on religion or belief.

During the hearing, the Tribunal accepted that the Claimant followed a vegan diet and avoided using some non-vegan products. However, other than her diet and use of some products, the Claimant failed to describe how she had altered her life to follow the belief and referred very little to ethical veganism in her grievance documents. Instead, the Claimant’s major criticism of the vaccine appeared to be that it was experimental.

The tribunal held that due to the lack of evidence, it could not find that the Claimant genuinely held a belief in ethical veganism.

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Career ramifications for almost half of menopausal employees

A recent survey of 1,001 employees has revealed that 44% of menopausal employeeswho have experienced symptoms linked to the menopause, do not divulge the information for fear of it negatively impacting their career. Moreover, 48% of those surveyed stated they would lie about the reason for taking time off work, with 39% stating they were too embarrassed to discuss the topic of menopause at work.  

So, what can employers do to support menopausal individuals?

Employers could:

  • Create an internal support system – this could be laid out in a menopause policy, and could point employees to individuals or “champions” who are experienced and/or trained to support their individual needs or offer guidance;
  • Consider implementing reasonable adjustments, depending on the individual’s symptoms. For example, these could include the provision of cool air fans, regular breaks, access to cold water and breathable uniforms;
  • Ensure line managers and the HR department receive appropriate training;
  • Raise awareness to tackle the stigma; and
  • Consider flexible working, or if you have already implemented flexible working, consider extensions and/or exceptions to your policy.

Please feel free to contact the Employment Team on [email protected] for any assistance.

Latest News

Eight employers ‘named and shamed’ for failing to report gender pay gap.

Amaris Hospitality Limited and The Contact Company Ltd are two of the eight organisations named and shamed by the Equality and Human Rights Commission (EHRC) for failing to report on their gender pay gap for 2022-23.

By law, organisations with over 250 employees are required to annually publish data on gender pay gaps. Failure to report may lead to a warning notice from the EHRC, and ultimately formal action if there are any breaches of equality laws including a court order and an unlimited fine.

Of the 730 employers who received warnings from the EHRC, eight continue to refuse to comply and, have therefore been publicly named and shamed. The Equality Act 2010 (Gender Pay Gap Information) Regulations do not include any civil enforcement procedures however, the EHRC has powers to enforce compliance for example, naming and shaming organisations that do not report on their gender pay gap.

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Employment Tribunal quarterly statistics

The Ministry of Justice has recently released its report on employment tribunal statistics for January to March 2023.

The Statistics

  • Employment tribunals received 8,100 single claim receipts and disposed of 9,000 single claim cases;
  • Employment tribunals received 15,000 multiple claim receipts and disposed of 11,000; and
  • 477,000 claims remained outstanding for the year 2022/2023.

However, the report does acknowledge that the tribunals began to use a new case management system in September 2022 therefore, it is not been possible for the tribunal to provide full results from both databases. This has led to inconsistencies in the data, with cases from the new system not being included in the statistics.

What does this mean for Employers?

The high level of outstanding claims means that claims are taking longer to be heard, leaving both parties in limbo with rising legal fees and undue stress.

Latest News

New guidance published by the CIPD to support employees experiencing fertility issues

Although people have begun to discuss fertility issues more openly in recent years, it continues to be a topic that is not discussed widely in both society and in the workplace. According to the CIPD, relatively few organisations have policies or guidance in place to support people having treatment.

The CIPD have therefore recently published a new guide to offering workplace support for individuals experiencing fertility challenges, investigations and treatment. The aim of the guide is to raise awareness of the prevalence and impact of fertility challenges, investigations and treatments; highlight the need for effective workplace support and what that might look like and to also inspire employers to create an environment where individuals feel able to access support if they want to.

Taking into consideration the principles of good practice, the CIPD’s guide suggests that employers should:

  • Break down the taboo – The CIPD suggests that employers can play an important role in breaking down these taboos as employees that work in supportive environments are more likely to feel able to discuss a challenging life event or to ask for help when needed.
  • Communicate a compassionate approach – Employers should ensure that they demonstrate a compassionate and inclusive attitude towards fertility issues. The CIPD recommends that employers also adopt a proactive approach by, for example, holding employee events.
  • Raise awareness and normalise the conversation – For employees that experience fertility issues, it can be a lonely and difficult process. Therefore, the CIPD suggests that employers ensure that information and education should be included as part of any training to ensure that managers and colleagues improve their understanding and awareness of fertility issues.
  • Build supportive workplace cultures for mental health.
  • Remember the impact on partners.
  • Ensure that policies and practices are inclusive – The CIPD’s guidance states that sometime a workplace can mirror society in terms of perceptions and unconscious bias around what a family is. Employers should therefore ensure that its policies are inclusive by countering stereotypes about people who experience fertility issues. For example, it could be men as well as women, single people, same-sex couples and surrogates. Sensitivity should also be shown any to cultural or diversity considerations as individuals from some cultures might feel less comfortable speaking about fertility issues.
  • Take an individual approach.
  • Manage sensitive situations well – Employers should ensure that sensitivity is shown around certain days which might be upsetting for some employees, such as Mother’s and Father’s Day. An employer might have some employees that have contrasting personal situations and the employer should therefore ensure that it supports its employees experiencing a difficult time.
  • Know what to say.
  • Build an ongoing strategy.

The CIPD’s guidance can be found here: Fertility challenges, investigations and treatment: Guide to offering workplace support | CIPD

If you are an employer and require assistance, please contact the Employment Team at Morgan LaRoche.

Latest News

Menstruation, menstrual health and menopause in the workplace – new standard published by the British Standards Institute (BSI)

Following an extensive consultation with members of the public and various experts, the British Standards Institute (BSI) have recently published the menstruation, menstrual health and menopause in the workplace standard. The BSI hopes this will help organisations and employers to support their employees that experience menstruation or the menopause, as research conducted by the Fawcett Society suggests that 10% of women experiencing the menopause have left the workplace due to their symptoms. Some of the symptoms include dizziness, hot flushes and insomnia. 

The BSI’s new standard includes examples of good practices for employers, which includes policy guidance and guidance on workplace culture. The standard suggests that steps for organisations and employers to consider include the following: 

1. Consider the workplace culture. Is there a general awareness of menstruation and menopause? Are employees provided with opportunities for conversations or to request further support, if necessary?
2. Consider whether the HR manager and line managers are suitably trained or receive suitable resources so that they understand the potential impact of menstruation and menopause.
3. Consider the workplace environment. Does the workplace include facilities such as toilets, discrete changing rooms or quiet recovery spaces that are easily accessible?
4. Consider the organisation / employer’s policies such as sickness, absence and performance management policies. Do these take into account menstruation and menopause?
5. Consider whether it is possible to enable some flexibility for an individual approach. This may include comfort adjustments such as access to individual cooling or heating and opportunities for sitting or stretching. 

With data suggesting that thousands of women are leaving the workforce due to the menopause, contributing to productivity losses and employers loosing talented employees, the BSI hopes this new standard will help employers to ensure that they create an inclusive work environment that supports employees experiencing menstruation or the menopause.

The BSI’s guidance can be found here: Menopause standard launched to help organizations support workers | BSI (bsigroup.com)

If you require any advice, please contact the Employment Team at Morgan LaRoche.

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ICO guidance for employers: Subject Access Requests

As many employers will know, responding to a Subject Access Request (SAR) can often be a time consuming and challenging process. The Information Commissioner’s Office (ICO) have therefore recently published guidance specifically for businesses and employers.

Under the UK’s GDPR and Data Protection Act 2018, individuals have the right to access their own personal data that’s held by organisations such as employers. If an employer therefore receives a SAR from an employee and fails to respond promptly or at all, the ICO has the power to fine or reprimand the employer.

According to recent figures, between April 2022 and March 2023, the ICO received over 15,848 complaints relating to SARs. The ICO notes that many employers appear to misunderstand the nature of SARs or underestimate the importance of responding to such requests.

When responding to a SAR, employers might have, for example, some of the following questions:

What is the right of access?

According to the ICO, the right of access gives an individual the right to obtain a copy of their personal information from the organisation such as the employer. This will include where the organisation had their information from, what they are using it for and who the organisation shares the information with.

Employers should note that they must respond to a SAR from an employee promptly and within one month of receipt of the request. It is possible, however, to extend the time limit by up to two months if the request is complex or the employee has sent several requests.

Can we clarify the request?

The ICO’s guidance states that it is possible for an employer to ask the employee to specify the information or processing activities they are looking for before responding to their request. An important point to note is that until the employer receives clarification, the time limit to respond to the request is paused.

The guidance emphasises that an employer should only seek clarification if it’s genuinely required to enable the employer to respond and because the employer processes a large amount of information about the employee. 

Do we have to disclose emails that the worker is copied into?

A SAR only entitles the employee to obtain a copy of their personal organisation from their employer. This means that an employer must consider what information in the email is considered “personal information” of the employee. The guidance states that it will also depend on the email’s contents and the context.

Whilst it will be for the employer to decide whether information is the employee’s “personal information”, the ICO states that there are several things to remember. This includes (1) if the contents of the email relates to something else such as a business matter, this does not mean that it is not the employee’s personal information. It depends on the content of the email; (2) as the SAR only applies to the employee’s “personal information”, the employer might need to disclose only some of the email in order to comply with the SAR and (3) although the employee might have been the recipient of the email, it does not necessarily mean that that the whole content is the employee’s “personal information”. Please note however that their name and email address is considered “personal information” and must therefore be disclosed.

Every SAR will be different so employers should always be careful and ensure that they follow the ICO’s guidance, which can be found here: SARs Q&A for employers | ICO

If you require any advice in relation to responding to a Subject Access Request, please contact the employment team at Morgan LaRoche.

Latest News

The cost-of-living impact on employees’ mental health

An Acas survey of just over 1,000 employees has found that the mental health of 47% of respondents has suffered due to the increase in the cost-of-living. 10% of respondents said that their mental health had been significantly negatively affected, with 37% of respondents saying their mental health had been moderately impacted.

As a result of this survey, Acas have suggested that employers should offer practical tips to employees such as signposting to financial advice. In addition, Acas suggest that when managing staff mental health, employers should:

  • ensure that they are approachable and encourage their employees to talk to them if they are experiencing problems.
  • Regularly keep in contact with their employees to check how they are coping.
  • Consider whether adjustments should be made to help an employee such as allowing them to work more flexibly in order to save costs.
  • Always be supportive and patient with an employee that wants to discuss their mental health. Employers should also remember to respect confidentiality.

Acas have also provided the following suggestions for employees to support their own mental health and wellbeing:

  • Ensure that you allocate time for activities that you enjoy.
  • Think about what helps to make you feel positive and what does not make you feel positive.
  • Talk to your colleagues and friends about your feelings.
  • Talk to your manager about your situation and check to see what support is available from your employer.