The CIPD have recently published their research report Inclusion at work: Perspectives on LGBT+ working lives, which has revealed that, over a twelve-month period, more than 40% of LGB+ workers and 55% of transgender (trans) workers faced conflict in the workplace.

The report reveals that “conflict situations” include those in which workers were humiliated or undermined, faced discriminatory behaviour, or experienced physical or sexual assault. 18% of trans workers reported feeling psychologically unsafe at work i.e. feeling unable to be accepted, valued, or voice their concerns and 16% of LGB+ workers felt the same way.  This figure fell to 10% for heterosexual workers. In particular, the report revealed that trans workers are particularly unsafe in the workplace, with 12% of trans workers experiencing unwanted sexual attention at work and 2% experiencing sexual assault, and at least 50% of workplace conflicts experienced by trans people remaining unresolved.

Significantly, the CIPD has suggested a range of steps that organisations can take to improve support for Lesbian, Gay, Bisexual and Transgender (LGBT) staff in the workplace, including initiating company-wide education on inclusion, and the creation of safe spaces and networks for LGBT+ employees and allies.

On 9 February 2021, the Welsh Government laid the Equality Act (Authorities subject to a duty regarding Socio-economic Inequalities) (Wales) Regulations 2021 (Regulations) before Senedd Cymru, together with an explanatory memorandum and statutory guidance.

By amending section 1 of the Equality Act 2010, the Regulations purport to make specific Welsh public bodies subject to the public sector duty regarding socio-economic inequalities (referred to as the Socio-economic Inequality Duty) when the duty is brought into force in Wales. The duty requires prescribed authorities, when “making decisions of a strategic nature” about how to exercise their functions, to have regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome resulting from socio-economic disadvantage .

The Welsh public bodies that will be subject to the Socio-economic Inequality Duty are specified in regulation 2 and include, among others:

• The Welsh Ministers.
• County councils and county borough councils in Wales.
• Specific NHS Trusts, Local Health Boards and Special Health Authorities.

The Regulations came into force on 30 March 2021.  The Welsh Government indicates that it is aiming to prepare affected public bodies for commencement of the duty.

The Employment Appeal Tribunal has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another due to the fact that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale”.  In particular, there was evidence that the training was insubstantial and that employees had forgotten it.  It was also appropriate to find that a further reasonable step could have been to offer refresher training.  Therefore, the employer could not show that all reasonable steps had been taken.

There are few reported cases that consider the reasonable steps defence. However, in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately, it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination.

TUC has published a recent report revealing that approximately 7.5 million employees, being 25% of workers, have been employed for less than two year, therefore, not been employed long enough to have qualified for unfair dismissal protection.

In particular, the study identified that those working in the sectors most adversely impacted by COVID-19, hospitality and retail, were the most vulnerable, with 45% of hospitality staff and 32% of retail workers not yet attaining unfair dismissal rights.  Similarly, the TUC’s survey also reported that BME and young workers were also at risk, as 33% of BME workers and 56% of 20-24-year-olds do not yet have unfair dismissal rights.

Pending the government’s pledge to introduce a new employment bill to improve employee protection at work, TUC is now calling for the government to implement a day-one right for unfair dismissal protection.  It has further proposed a ban on zero-hours contracts, and to give workers the right to request flexible working from the first day in a job.

From 4 April 2021, the Department for Work and Pensions (DWP) has published its proposed increases to a number of statutory benefit payments. The following weekly rates are expected to apply:

• statutory sick pay (SSP) will be £96.35 (up from £95.85);
• statutory maternity pay (SMP) and maternity allowance will be £151.97 (up from £151.20);
• statutory paternity pay (SPP) will be £151.97 (up from £151.20);
• statutory shared parental pay (ShPP) will be £151.97 (up from £151.20);
• statutory adoption pay (SAP) will be £151.97 (up from £151.20).

Department for Work and Pensions: Policy Paper: Benefit and pension rates 2021 to 2022 (8 December 2020)

COVID-19 pandemic has seen significant rise in the use of Microsoft Teams meetings but for GDPR purposes, could this be classed as employees personal data and would they have to be disclosed in response to subject access requests?  

Recorded images, where an employee is identifiable does amount to employees’ personal data and the recording, sharing, retention and other operations involving personal data will be deemed to be processing for the purposes of GDPR.  Therefore, if the video or audio recording does amount to personal data then, on the face of it, the employee is entitled to obtain a copy of it under a subject access request.

If the video also contains personal data of another individuals, the employer must first obtain that other individual’s consent or in this instance would need to redact / blur the image of the other individual and mute the audio of the other individual in order to protect the privacy and personal data of the other individual.

Another interesting question is whether the employer is complying with data protection law in storing the teams meetings. Certainly, this will be highly fact dependent and in some cases it will be legitimate to retain those recordings. However, employers should be careful when keeping recordings of all meetings and as a matter of course, regardless of content, an employer may not satisfy a condition for lawful processing and it is revealed that records should not be stored indefinitely.

Since the start of COVID-19 in March 2020, according to a poll of 3,000 workers carried out by the Trades Union Congress (TUC), 15% of workers have experienced an increase in employer monitoring.  Particularly, 26% of respondents reported that employers were using technologies to track when they started and finished work, 13% were having their breaks recorded and 8% of workers even had their social media screened.  It is also revealed that, 33% of workers on insecure contracts believed that their work activities were monitored at all times, compared to 20% of those in secure work.

Interestingly, less than 31% of respondents had been consulted when new monitoring technology was introduced, with the majority of workers revealing that they are uncomfortable with the varying forms of remote monitoring technology.

139 employers have been named and shamed for failure to pay the national minimum wage to their employees.  On 31 December 2020, the Department for Business, Energy and Industrial Strategy (BEIS) published a list of 139 employers who had collectively failed to pay £6.7 million to over 95,000 workers between September 2016 and July 2018. The list included Tesco and Pizza Hut.

Although, some breaches are not intentional, employers have a responsibility to ensure they abide by the law. Accordingly, employers who under pay workers must pay back arrears of wages to workers at current minimum wage rates. Employers also face financial penalties of up to 200% of arrears, capped at £10,000 per worker, which are paid to the government.

Indeed, the 139 employers listed have now paid arrears of wages to their workers and faced financial penalties. Interestingly, two of the main causes of breaches were low-paid workers being made to cover work-related costs (such as paying for uniform, training or parking fees) and employers failing to raise workers’ pay after they had a birthday which should have moved them into a different national minimum wage bracket.

A recent report published by whistleblowing charity Protect, which analysed over 600 calls to its advice line between March and September 2020, reveals that 41% of callers were ignored and 20% were dismissed after raising their concerns related to COVID-19, most of which were about furlough fraud and public safety, particularly in connection with the lack of PPE and provision for social distancing.

Interestingly, managers were more at risk from dismissal, with 32% of managers losing their jobs compared with 21% of non-managers. The data also suggested that small organisations, with one to 49 employees, were more likely to commit furlough fraud (making up 76% of total callers).

The Disclosure and Barring Service (DBS) has published new guidance dealing with the filtering rules for criminal records certificates, applying from 28 November 2020.

The new regime means there will no longer be a requirement for youth cautions, reprimands and warnings to be automatically disclosed on standard and enhanced DBS certificates. Additionally, the “multiple conviction” rule, which requires the automatic disclosure of all convictions where an individual has more than one conviction (regardless of the nature of the offence or sentence), will be removed.  These changes are intended to ensure that the right balance is struck between rehabilitating offenders and protecting the public.

It should be noted that enhanced DBS certificates may include information relating to a protected caution or conviction if the police consider that it is relevant to the workforce that the individual intends to work in.

https://www.gov.uk/government/publications/filtering-rules-for-criminal-record-check-certificates/new-filtering-rules-for-dbs-certificates-from-28-november-2020-onwards

Positive news for many workers as from 6 April 2021, the national living wage (NLW) and national minimum wage (NMW) will be increased in accordance with the recommendations of the Low Pay Commission. The NLW, which currently applies only to workers age 25 or over, will increase by 2.2% and for the first time, will be extended to 23 and 24-year-olds. For younger workers, the commission recommended smaller increases in recognition of the risks to youth employment which the current economic situation poses. The apprentice rate will have the largest increase of all, up 3.6%, in furtherance of the commission’s ultimate goal of fully aligning it with the rate for 16 to 17-year-olds by 2022.

The new rates will be:

• Age 23 or over (NLW rate): £8.91 (up 2.2% from £8.72).
• Age 21 to 22: £8.36 (up 2% from £8.20).
• Age 18 to 20: £6.56 (up 1.7% from £6.45).
• Age 16 to 17: £4.62 (up 1.5% from £4.55).
• Apprentice rate: £4.30 (up 3.6% from £4.15).
• Accommodation offset £8.36 per week (up 2% from £8.20).

https://www.gov.uk/government/news/national-living-wage-increase-to-protect-workers-living-standards

The Office for National Statistics (ONS) has found that employers prioritised paying full pay to top earners during the COVID-19 pandemic in contrast with the UK’s lowest paid workers who were five times more likely to be furloughed with reduced pay.

The collected data covered a range of demographic indicators; almost a quarter of 18 to 21-year olds were furloughed on reduced wages compared with only 9% of 40 to 59 year olds and 39% of hospitality workers were furloughed on reduced pay compared with 3% in professional jobs.

The real Living Wage is a recommended UK wage rate which aims to better meet the financial needs of workers than the statutory National Living Wage. Currently paid voluntarily by over 7,000 employers, it was announced on 9 November 2020 that the real Living Wage will increase by 10p to £10.85 for London and by 20p to £9.50 for the rest of the UK to support workers and families during the economic crisis deriving from COVID-19 pandemic. Over 700 additional employers have signed up to the real Living Wage since the start of lockdown in March 2020.

The Information Commissioner’s Office (ICO) has issued a monetary penalty notice fining Marriott International Inc (Marriott) £18.4 million for breaching its data security obligations under GDPR, leaving about 339 million guest records worldwide exposed to a cyber-attack on Starwood Hotels and Resorts Worldwide Inc’s (Starwood) reservation database in 2014.

Indeed, the ICO traced the cyber-attack back to 2014, but the penalty only relates to the breach from 25 May 2018, when the GDPR became applicable. As the breach occurred before the UK left the EU, the ICO investigated this on behalf of all of the EU authorities as a lead supervisory authority under the GDPR.

The amount imposed is a significant reduction on the £99,200,96 million the ICO announced it intended to fine Marriott in July 2019. As part of the regulatory process, the ICO considered representations from Marriott, the steps Marriott took to mitigate the effects of the incident and the economic impact of COVID-19 on their business before setting a final penalty.

It follows hot on the heels of the ICO fining British Airways £20 million for a cyber-breach, the largest fine imposed to date for a breach of the GDPR.

ICO: Action we’ve taken: Enforcement: Marriott International Inc (30 October 2020).

In a press release on 12 November 2020, the government announced the creation of a Platinum Jubilee four-day weekend in June 2022. Indeed, as part of the celebration of the Queen’s 70th anniversary, the late May bank holiday will be moved to Thursday 2 June, while an additional bank holiday will take place on Friday 3 June.

BBC publishes guidelines for employees detailing that employees are banned from expressing “a personal opinion on matters of public policy, politics or controversial topics” in a bid to “force staff to maintain impartiality”. The new restrictions will apply to both BBC-affiliated and private social media accounts and implicate liking, retweeting, following and sharing “controversial” content.

Interestingly, the restrictions encompass the broad spectrum of public expression of opinion, including public campaigning and participation in marches. In October 2020, Tim Davie the Director General of the BBC clarified that employees will remain free to attend “community events that are clearly celebratory” such as Pride parades. Despite the new restrictions, questions have been raised as to whether the BBC’s new policy is potentially discriminatory.

Controversially, during the first wave of COVID-19 pandemic between March and August 2020, a recent publication reveals that 133,000 more women than men were furloughed, constituting 52.1% of the furloughed population, except for the West Midlands.   

Interestingly, the furlough gender gap is higher among younger women than older women, with women aged 18-24 making up 53.1% of those furloughed in their age group compared with 51.5% in the 45-64 age group.