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.

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.

“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.

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.

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.

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.

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.    

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”.

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.

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.

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.

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.

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.