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Brexit and its Impact on UK Employment Law

Overview

Of course, after Brexit the UK will no longer be a member of the EU but the terms of the divorce are still far from agreed.

However, what we do know is that the principal of supremacy of EU law will no longer apply and all law-making powers will be devolved back to the UK Parliament.

UK and EU Employment Law

A substantial component of UK employment law is grounded in EU law.

In some cases EU law has entrenched provisions across its members states that already existed in our domestic law; in other words, EU law has often taken its cue from the UK, such as in the area of race discrimination and certain maternity rights.

In other cases, new categories of employment rights have been transposed into domestic law to comply with emerging EU obligations. For example, agency workers’ rights and limitations on working time.

Will the UK turn its back on the European Court of Justice?

Not completely. It is true that after 31st December 2020, a UK court or tribunal will not be bound by any decisions made by the ECJ on or after the end of the transition period and cannot refer any matter to it.

However, courts and tribunals may “have regard to” anything done on or after the end of the transition period by the ECJ “so far as it is relevant to any matter before the court or tribunal”.

This means that parties in a dispute can still seek to rely on relevant ECJ decisions made after 31 December 2020 which are potentially relevant to determining the dispute.

So what is the impact on Key UK Employment Legislation and what might change post-Brexit?

Well we simply don’t know.  Top 6 predictions are:

  1. Discrimination Law:

Although the government could repeal the Equality Act 2010 after exiting the EU, to do so would be controversial.

It is difficult to imagine many employers arguing that they should be free to discriminate against employees.

However, some commentators have suggested that, free from EU constraints, a cap could be imposed on discrimination compensation (as is the case for unfair dismissal).

Another possibility is that the government could change the law to allow positive discrimination in favour of under-represented groups in a way that is not currently permissible under EU law.

  1. Family related leave and pay:

Rights to parental and family-related leave in the UK are a mixture of rights deriving from the EU and rights originating in the UK.

UK maternity leave and pay preceded the EU rights and are more generous than those in the EU.

The right to shared parental leave and the right to request flexible working are purely domestic in origin.

Accordingly, although some critics consider these rights to be a burden on business, there seems little political appetite for their repeal or even for watering them down.

  1. Transfer of Undertakings:

TUPE can attract a lot of negative press but the principle that employees in a transferred business, undertaking or outsourced activity should transfer with it is often useful for businesses and is incorporated and priced into many commercial outsourcing agreements.

Although there may be some businesses that would like to get rid of TUPE, it seems more likely that, following Brexit, the government would make small changes to make TUPE more business friendly. For example, the government might choose to make it easier to harmonise terms following a TUPE transfer (which is not permitted under EU law).

  1. Holiday and Working Time:

The right to statutory paid holiday is now well established and it would be deeply unpopular with workers and trade unions if it was removed.

Therefore a wholesale repeal of the WTR 1998 is unlikely.

However, there are aspects of the right to paid holiday and other rights under the WTR 1998 that the government may want to amend.

Various ECJ decisions on holiday pay are problematic for UK businesses, for example the right to keep accruing holiday while on sick leave and the fact that holiday pay should be based on all aspects of remuneration, not just basic pay.

Following the UK’s withdrawal from the EU, the government may want to retain a right to paid holiday based on basic pay and with limited rights to accrue and carry it over into new holiday years.

The UK may also wish to remove the 48-hour cap on maximum weekly working hours.

  1. Collective redundancy:

The minimum time limit for starting collective redundancy consultation where an employer is proposing to dismiss 100 or more employees at one establishment is 45 days.

The obligation is not particularly onerous and trade unions are likely to fight any plan to remove it altogether.

It is possible that it could be watered down further or removed, particularly as many employees arguably do not feel particularly strongly about this right and in light of the current climate we find ourselves in.

  1. Agency Workers:

The Agency Workers Regulations 2010 (SI 2010/93) (AWR 2010) (which implement the EU Temporary Workers Directive) might be seen as a possible candidate for complete revocation as they are complex, unpopular with businesses and have not yet become embedded in a way that might make them politically difficult to remove.

However, the government has not so far indicated this to be its intention. On the contrary, following the recommendations of the Government’s Taylor review, it committed to strengthen agency workers’ rights under the AWR 2010.

Conclusion

In summary, very little is going to change, at least in the short to medium term.

From January 2021, if there is a political appetite to do so, the UK government could theoretically start to chip away at more unpopular EU derived laws in the UK, such as those relating to working time, holiday pay, agency workers, collective consultation and TUPE.

The Supreme Court (if cases get that far) will also have powers to overrule ECJ decisions, though whether they will or not remains to be seen.

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Can I force my employees to have the vaccine?

The debate on whether to make the new COVID-19 vaccination mandatory for the public at large, not just employees, is a global one and different countries will reach different decisions. The UK Government has not to date made it mandatory for anyone and so there is no statutory basis on which an employer could potentially rely to compel an employee to get the vaccine.

The employment relationship is also governed by contract law which could be used as leverage. However, it is unlikely many employers will have a clause to cover this scenario. To introduce one would require either employee consent or a strong business case, but the whole purpose of exploring mandatory vaccination is to deal with those who won’t consent or who will argue that the disadvantages or detriment to them outweigh the business case.

In any event, whether you have a sufficiently drafted contractual clause or not, most commentators would agree that mandatory vaccination could risk a plethora of tribunal claims under the laws of unfair dismissal, discrimination, human rights and health and safety. Top of the list are considerations around diversity, pregnancy and how religion and belief might impact on a person’s choice. There would of course also be criminal liabilities for assault if an employer was considered to have physically enforced (or overseen such) vaccinations, though it is hard to imagine many employers in that scenario.

To avoid falling foul of the law, employers should avoid blanket policies and where possible, make decisions based on the facts of each case. It should also be remembered that vaccinations will not be the only means of controlling risk and in some situations, social distancing and hygiene measures may suffice.

If after careful risk assessment and ruling out all other measures, an employer requires an employee carrying out their daily tasks to be vaccinated, such as a carer, how should they treat an employee who chooses not to be vaccinated? Could they fairly dismiss such an employee? Employers should consider the circumstances and beliefs of that particular employee before making any decisions in that regard and always follow a fair procedure. Until case law is developed in this area or the government legislates, this will be a tricky situation and employers will need to tread carefully.

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Gender fluid/non-binary employee covered by Equality Act 2010 definition of gender reassignment awarded £180,000 in compensation following landmark discrimination case

On 14 September 2020, an employment tribunal upheld claims for harassment, direct discrimination and victimisation on the ground of gender reassignment brought against Jaguar Land Rover Ltd by one of its engineers, Ms Taylor, who, having identified as gender fluid/non-binary, usually dressed in women’s clothing.  Claims by Ms Taylor included that she was subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and managerial support.

A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.  Noting that the question of whether a gender fluid/non-binary person fell within the Equality Act 2010 was a novel point of law, the tribunal held that Ms Taylor was covered.

In favour of the gender fluid employee, on 2 October 2020, an employment tribunal judge awarded Ms Taylor, a gender fluid employee, £180,000 in compensation following its September 2020 judgment in Taylor v Jaguar Land Rover Ltd where it was held that gender fluid and non-binary people were protected from discrimination in the workplace under the Equality Act 2010.  Jaguar Land Rover has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.

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Employment tribunal quarterly statistics for April to June 2020 and annual awards statistics for 2019/20 published

April to June 2020 employment tribunal quarterly statistics have been published by the Ministry of Justice.  During this period, single claim receipts and caseload outstanding rose by 18% and 31% respectively, while disposals decreased by 21% to 4,496 compared to the same period in 2019. The mean age of cases at disposal decreased to 32 weeks.

In contrast, multiple claim receipts and disposals dropped by 43% and 47% respectively, while caseload outstanding increased by 6%.

Annual compensation and costs awards figures have also been published for the employment tribunals and the EAT.  A total of 160 discrimination cases were awarded compensation in 2019/20; the highest award was for disability discrimination amounting to nearly £266,000. Age discrimination claims received the largest mean average award £39,000 compared to other discrimination jurisdictions.  No awards for religion or belief discrimination were recorded.  Unfair dismissal mean average awards decreased to £10,812, from £13,704 in the previous annual figures.

As a result of the figures, the Ministry of Justice stated that the increase in single claim receipts was likely due to rising levels of unemployment and changes to working conditions during the COVID-19 pandemic, noting that this was “the highest level of single employment tribunal claims since 2012/13”.  Similarly, caseload outstanding surpassed its peak levels recorded in 2009/10, driven by the increase in single claim receipts and the reduction in disposals. Looking ahead, employment lawyers have warned that the number of cases concerning redundancy, employment terms, and contractual issues surrounding pay and benefits is set to “skyrocket”.

https://www.gov.uk/government/publications/tribunal-statistics-quarterly-april-to-june-2020/tribunal-statistics-quarterly-april-to-june-2020

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-april-to-june-2020

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Recent CIPD report suggests only 52% of employers have a diversity strategy

A poll of over 650 HR professionals, conducted as part of the CIPD and Omni Resource Management Solutions’ “Resourcing and talent planning survey 2020”, suggests that many employers are failing to engage meaningfully with methods to improve diversity.

As a result, the research states that most of the businesses polled are taking some steps to recruit diversely, although they could take a more comprehensive approach.  However, 24% of survey respondents are making no effort to attract and recruit more diverse candidates to board-level jobs, 19% are taking no steps to address diversity issues in recruitment and selection processes generally and only 52% have a formal diversity strategy.

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ICO publishes detailed subject access request guidance

There is now detailed guidance for organisations on how to deal with rights of access to personal data (subject access rights) published by the Information Commissioner’s Office (ICO)) under the General Data Protection Regulation.

Three key issues arising from feedback received when the draft version of the guidance went out for consultation in December 2019 have been addressed in the guidance published are:

  • Stopping the clock for clarification. The ICO has explained and illustrated with examples the circumstances in which a subject access request (SAR) may be deemed complex and enable the response period of up to a month from receipt of an SAR to be paused while a controller waits for the individual to clarify their request.
  • Determining when an SAR is manifestly excessive. The guidance confirms this assessment requires the controller to consider whether the SAR is clearly or obviously unreasonable. The ICO recommends taking all the circumstances of the SAR into account and using them to determine whether the response required is proportionate when balanced with the burden or costs involved in dealing with the SAR.
  • Costs which can be included when charging a reasonable fee for excessive, unfounded or repeat SARs. The controller’s reasonable fee may include the costs of its staff time, copying, postage and other expenses involved in transferring the data to the individual, including the costs of discs, envelopes and USB devices.

Data protection practitioners and organisations in general are likely to welcome the enhanced content and detail set out in this new guidance, which is intended to ease the complexity and reduce the response times associated with SARs. Further resources to assist with responding to SARs, including a guide for small businesses, are being developed by the ICO.

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/10/blog-simplifying-subject-access-requests-new-detailed-sars-guidance/

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COVID-19: ACAS says, 37% of employers likely to make redundancies in next three months

Redundancies on the rise? A survey of 2,097 British businesses published by Acas has revealed that over the next three months, 37% of employers are likely to make redundancies.  56% of respondents were unlikely to make redundancies and 7% did not know.  Of the large businesses surveyed (those employing more than 250 employees), 60% were likely to make redundancies, 33% were unlikely to do so and 7% did not know.

The survey, carried out by YouGov, revealed that of those participants who were likely to make redundancies, 27% were planning to do so more remotely (by video call or phone) and 33% were planning to do so more face-to-face, with 33% planning to use a mixture of both.

One in four (24%) participants stated that they were unaware of the law around consulting staff before making redundancies, a figure that increased to one in three (33%) in businesses with fewer than 50 workers.

The figures are evidence that the government needs to do more to protect jobs, both the Labour Party and the TUC stated.

Should you require any legal advice in connection with making redundancies, please contact the employment team at Morgan LaRoche.

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COVID-19: pandemic leads to backlog of 45,000 employment tribunal cases

45,000 employment tribunal cases waiting to be heard in August 2020, Ministry of Justice data shows according to the Law Society Gazette, demonstrating an increase in the backlog of cases by 26% from the start of March.  Additionally, there has been a rise during this period of the UK’s unemployment rate from 3.9% to 4.1% shows the Office for National Statistics for the period April to June 2020.  The growing tribunal backlog may be due in part to the increase in redundancies, and in part due to listing difficulties during the COVID-19 pandemic.

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Employment Tribunal Rules amended to reduce bureaucracy and increase capacity

New legislation introduced by the government to make several technical changes to employment tribunal and early conciliation procedure aimed at reducing bureaucracy and increasing the capacity of the employment tribunals to hear claims.

They amendments provide that, from 8 October 2020, non-employment judges may sit as employment judges, subject to certain criteria. Additionally, some functions currently carried out by employment judges may be delegated to legal officers. Further, various changes are also to the Employment Tribunal Rules which include making it easier for tribunals and parties to conduct remote hearings, giving the tribunals greater powers to accept claims which contain administrative errors and giving parties wider scope to deal with multiple claims or responses in one form.

Additional changes to the Acas early conciliation procedure will come into force on 1 December 2020. From this date, the Amendment Regulations provide for a six-week conciliation period in all claims instead of the one-month period which currently applies, although the parties will no longer be able to agree to extend the conciliation period by 14 days. It will also be possible for conciliators to correct errors in the early conciliation form at any time during the early conciliation period.

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H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data

On 2 October 2020, H&M received a fine of EUR35 million for monitoring and recording “extensive details” about hundreds of its employees in Nuremburg, in breach of the General Data Protection Regulation (GDPR).  The Hamburg Commission for Data Protection and the Freedom of Information revealed that the information included details of absences for vacations and sick leave, symptoms of illness and diagnoses, family issues and religious beliefs.

The Commission found that the data was able to be read by up to 50 managers and that this data was used to “obtain a detailed profile of employees for measures and decisions regarding their employment”.

H&M also agreed to pay out compensation to employees who worked at the Nuremburg site for at least a month since May 2018.

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Employer not liable for consequences of employee’s practical joke in the workplace

The High Court has upheld a county court decision that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. It was held that it was expecting too much of an employer to devise and implement a health and safety policy, or other policy or site rules, which descend to the level of horseplay or the playing of practical jokes.  It accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site. However, there was no foreseeable risk of injury as tensions were not so serious as to suggest the threat of violence or confrontation. Increased supervision to prevent horseplay, ill-discipline or malice was therefore not a reasonable step to expect this employer to have identified and taken.

Following the Supreme Court’s decision in Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, the court held that, although the incident happened in the workplace, the employer was not vicariously liable for the employee’s actions. Those actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.

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UK Annual Report on Modern Slavery 2020

On 19 October 2020, the government published the UK Annual Report on Modern Slavery 2020, which entails the measures it has taken to combat modern slavery over the past 12 months under the following headings: pursue, prevent, protect, victim identification and support, the international response to modern slavery, and upstream prevention.

The report identifies modern slavery as a continuing priority with the following notable figures and actions:

  • In June 2020, there were 1,845 active law enforcement investigations compared with 1,479 in June 2019, although the figure for those investigations that continued over this period is not given.
  • The conviction rate for modern slavery-flagged offences rose from 65% in 2019 to 71.9% by June 2020.

Certainly, the government has committed to eradicating modern slavery in its own supply chain and has increased communication campaigns aimed at increasing awareness of the phenomenon of modern slavery.

A retrospective report on the measures taken to challenge and combat modern slavery is, of course, very welcome. Despite this, in September 2020, following the rejection of many of the recommendations of the independent review into modern slavery, there was promises from the government to implement a number of significant changes including the extension of the obligation to report to the public sector.  A timetable for the implementation of these changes is still awaited.

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Employment Tribunal holds that homecare providers agree to pay backdated National Minimum Wage to care workers for travelling and waiting time between care appointments

In a claim ongoing since 2016, three homecare service providers have agreed to pay ten care workers the national minimum wage (NMW) for travelling and waiting time between care appointments.  Approximately £100,000 is the amount of the backdated payments in total.

The agreement between the parties is recorded by the employment tribunal in a short judgment by consent. This does not give any opinion on whether the NMW is legally due to the claimants in respect of travelling and waiting time based on the specific facts of the case.

The judgment states that the claimants asked for the methodology they used to calculate the value of their claims to be appended as a “useful guide” for similar claims.

Key aspects of the claimants’ methodology are as follows:

  • A sample reference period was chosen.
  • To calculate waiting time, the case of Whittlestone v BJP Home Support Ltd [2014] ICR 275 was used as a yardstick. Two issues not explicitly addressed in this case were raised: first, that care workers should not be penalised if the employer rosters them inefficiently; and second, that they should be paid for gaps between appointments that are not sufficient to allow them to return home and relax. Gaps exceeding 60 minutes were disregarded for the purpose of the calculation.
  • Google Maps and Citymapper were used to estimate travel times between postcodes, based on off-peak journeys.
  • To calculate the total value of their claims, the claimants added together travelling time between appointments during the day for gaps of 60 minutes or less, waiting time between appointments where travel was undertaken and there was an additional gap after travel and before the next appointment (but where the overall gap between appointments was less than 60 minutes), and the total duration of an appointment.

This methodology is not binding on future cases. Although suggested by the claimants, there are aspects of it which potentially underestimate the value of their claims (for example, disregarding gaps between appointments exceeding 60 minutes, and using off-peak travelling times when a number of claimants allegedly travelled at peak). It therefore remains to be seen whether the methodology is useful enough to be relied upon by claimants going forward.

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Modern Slavery Act 2015: government response to transparency in supply chains consultation

On 22 September 2020, the UK government published a response (Response) to its transparency in supply chains consultation.  It is a legal requirement for certain commercial organisations to produce an annual slavery and human trafficking statement (Statement).  The Home Office’s Transparency in Supply Chains Guidance (Guidance) complements the MSA by setting out guidance and best practices on this requirement. The government has now made various proposals in the Response aimed at improving the reporting process, the key ones being:

  • Legislating for the contents of Statements. The MSA currently lists areas that organisations may want to include in their Statement. The government is proposing that these suggestions are codified into legislation, making them mandatory issues that the Statement must cover.
  • Legislating for Statements to include the date of when the Statement was approved by the organisation and when it was signed by the relevant person. This would translate the recommended best practice in the Guidance into law.
  • Introducing a new statutory single reporting deadline. There is currently no statutory prescribed time limit on when an organisation must publish its Statement. In the government’s view, requiring organisations to publish their Statement by a fixed deadline would make it easier to compare the activities and progress of similar organisations for the same defined period.
  • Requiring organisations to publish their Statements on a government-run website. The MSA currently provides for organisations to publish Statements on their own websites. The proposal is that this existing requirement is kept, meaning that Statements will be published on both an organisation’s website and a new government-run website.

The Response also proposes a significant change to the remit of the current legal requirement by extending it to include public bodies that meet a specific budget threshold. Currently, government initiatives and measures to improve transparency within its own supply chains are voluntary.

The Response does not provide a timetable for implementing these proposals. Instead, it states that “for all measures which require legislative change, the Home Office’s intention is to introduce this when parliamentary time allows”.

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Christian teaching assistant sacked over anti-LGBT Facebook post takes case to tribunal

A Christian teaching assistant lost her job over a Facebook post where she shared a petition against teaching about LGBT relationships in primary schools claims that the dismissal breached her freedom of speech and freedom of religion.   The teaching assistant, who is supported by the Christian Legal Centre, was dismissed for gross misconduct after her school found that she had discriminated against LGBT pupils in a disciplinary process.

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Tribunal makes costs award against former employee of £432,000

The employment tribunal has awarded an employer £432,000 in costs, which is thought to be the largest costs award made by the tribunal to date. A former employee had unsuccessfully brought claims of unfair dismissal, age discrimination, race discrimination, sex discrimination, victimisation, harassment, whistleblowing detriment and unfair deduction from wages following a redundancy process. The size of the award follows a judgment finding that the employee had been “duplicitous” and had undermined the trust and confidence between himself and his employer.

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COVID-19: Access to Work scheme employer factsheet updated

The government has updated the employer guide for the Access to Work scheme, which provides grants of up to £60,700 to help disabled people start or stay in work. The updated guidance states that employees affected by the COVID-19 outbreak may be able to get help with working from home, in the workplace, or a combination of both.  If employees cannot use public transport safely because of their disability or health condition, and their doctor or healthcare professional supports this, funding may be available for extra travel costs.  Access to Work can also provide funding for remote support services, such as video remote interpreting or British Sign Language interpreting. The period for submitting claims has been increased from six to nine months because of the pandemic.

Businesses based in the EU who send employees to Great Britain to work will no longer be eligible to apply for support under the Access to Work scheme.

To be eligible for an Access to Work grant, a person must have a disability or long-term health condition that means they need an aid, adaptation or financial or human support to do their job, or have a mental health condition which requires support in work. The grants are available to adults who are in, or are about to start, paid employment, including self-employment.

https://www.gov.uk/government/publications/access-to-work-guide-for-employers/access-to-work-factsheet-for-employers

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CIPD and EHRC publish guide on supporting employees suffering domestic abuse

On 29 September 2020, the CIPD and EHRC published Managing and supporting employees experiencing domestic abuse: a guide for employers. Recommendations include employers should have a clear policy in place to support employees and a framework of support made up of four steps: recognise the problem, respond appropriately to disclosure, provide support and refer to the appropriate help. It calls for an empathetic, non-judgmental approach and flexibility (for example in working hours or concerning work tasks) as two key areas for employers to focus on. As many more people are working from home as a result of the COVID-19 pandemic and related restrictions, employers will need to consider how to maintain support when escape routes or time apart from an abuser may be dramatically curtailed.

The guide notes that it is not for employers to solve the problem, but they should enable their employees to access professional support, whether in the form of legal or financial advice, housing support, counselling or arranging childcare.  It calls for employers to provide paid leave for those struggling to do their work or who need to access essential services.  The guide addresses the need for open workplace cultures to break the silence around domestic abuse and for roles and responsibilities, such as those of HR and line management, to be clear when it comes to providing support.

BEIS launched a review of how employers and the government could better support domestic abuse survivors in the workplace on 9 June 2020.  Submissions were required by 9 September 2020 and the review is expected to report by the end of 2020.

https://www.cipd.co.uk/knowledge/culture/well-being/supporting-employees-experiencing-domestic-abuse

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Women on boards: number of executive positions occupied by women remains “stubbornly low”

The Female FTSE Board Report 2020, published by Cranfield School of Management and EY, which looks at trends in female representation on FTSE 100 and FTSE 250 boards each year, has found that the record number of women on boards is failing to translate into genuine equality in senior roles. Despite significant progress in the number of non-executive directors on FTSE 100 boards (where women now account for a record 40.8% of non-executive directors), the increase in the number of executive positions being awarded to women remained “stubbornly low”. Less than one in seven executive director roles (13.2%) were held by women, with women filling just five out of 100 chief executive roles in June 2020.  Women fared worse in the FTSE 250, where they held 11.3% of executive director roles.

COVID-19 pandemic threatens to reverse gender equality progress and notes that the unequal burden of care placed on working women during the lockdown was likely to exacerbate existing gender inequalities and the gender pay gap as the report warns.

https://www.cranfield.ac.uk/som/research-centres/gender-leadership-and-inclusion-centre/female-ftse-board-report

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UK gender pay gap legislation much less ”robust” than in other countries, report finds

The Fawcett Society and the Global Institute for Women’s Leadership at King’s College London (KCL), which analysed the gender pay gap reporting legislation of ten countries, has revealed in their report that the UK is “unique in its light-touch approach” to tackling the gender pay gap. In particular, the related research highlighted the UK’s failure to require private employers to produce action plans for reducing their gender pay gap, with only one other country, Austria, also not requiring this.

Additionally, the report placed the UK ahead of its peers in terms of transparency and compliance; in 2019, 100% of eligible employers reported their statistics.  Nevertheless, the report did call for the pay gap reporting requirement currently applicable in England, Scotland and Wales to be extended beyond companies with 250 employees or more.

https://www.kcl.ac.uk/giwl/assets/gender-pay-gap-reporting-a-comparative-analysis.pdf