Ongoing Government consultations

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There are a number of employment-related public consultations running until early October 2019 which, if they lead to legislative changes, will impact most employers. We summarise the ‘need-to-know’ points from these consultations.

Consultation on a new sick pay scheme

The government is currently consulting on a range of measures to reduce ill health-related job losses. The consultation closed on 7 October 2019 and proposals include:

  • Introducing a new right to request workplace modifications for all employees suffering from health conditions, not just those who are deemed to be disabled (where the duty to make reasonable adjustments already applies).
  • Introducing a sick pay rebate for small and medium-sized enterprises (SMEs) to help them support individuals with disabilities or long-term conditions return to work.
  • Pro-rating SSP to ensure that employees can agree a phased return to work without being financially worse off.
  • Extending SSP to low earners (it is currently paid only to those who earn more than £118 per week). To avoid low earners receiving SSP at a higher rate than their actual wages, it will be set at 80% of their average weekly earnings. This proposal, if enacted, will benefit up to 2 million low earners currently excluded from SSP.
  • Strengthening statutory guidance to support employers to take ‘early, sustained and proportionate steps’ to support sick employees returning to work before they can be fairly dismissed on the grounds of ill health.
  • Improving access to occupational health providers by co-funding or introducing vouchers for smaller employers.

Consultation on plans to change the way individuals enforce their employment rights

One of the key recommendations of the Good Work Plan was that HMRC should take responsibility for enforcing basic pay rights (e.g. National Minimum Wage (NMW), sick pay and holiday pay) for the UK’s lowest paid workers, and that the Government should make the enforcement process easier for workers who have had their rights breached.

The UK currently has seven different agencies with responsibility for enforcing employment breaches, as well as the employment tribunal. These agencies include HMRC (which enforces NMW breaches) and the Health and Safety Executive. The government proposes in its consultation that a single enforcement body should be set up, with priority on protecting the most vulnerable workers, to:

  • Promote a single recognisable ‘brand’.
  • Pool intelligence and, where appropriate, work with the police, immigration officials and DWP, where appropriate.
  • Extend state enforcement to enable those who have been underpaid holiday or use an umbrella company to seek redress.
  • Support businesses by providing suitable and targeted materials, and by taking a ‘proportionate approach to enforcement.

This consultation closed on Sunday 6 October 2019.

Consultation on addressing unfair flexible working practices

The government has launched a consultation on ‘one-sided flexibility’ following recommendations made in the Taylor Review and by the Low Pay Commission (LPC). The LPC has recommended that new laws should be introduced to protect vulnerable staff. The consultation proposes introducing new rights for workers:

  • To be given ‘reasonable notice’ of their work schedules. The consultation seeks views on how much notice is reasonable and whether it should apply to all workers, or if certain employers/sectors (such as the emergency services) need more flexibility.
  • To be compensated if their shifts are cancelled or shortened without ‘reasonable notice’. The suggestion is that if a worker’s hours are cancelled with less than a certain amount of notice, the employer would be liable to pay compensation, irrespective of whether the hours are replaced, and set at one of three levels:
    • The value of the shift/hours in question
    • The worker’s appropriate NMW rate multiplied by the scheduled number of hours cancelled
    • A multiple of a worker’s appropriate NMW rate e.g. three times the NMW.

The consultation asks whether compensation should only apply to those workers below a certain income level close to or on the minimum wage, or to those on specific contract types, such as zero-hour contracts.

The consultation ended on Friday 11 October 2019. If these proposals become law, there will be an obvious impact on payroll costs for employers who engage casual or zero-hours workers.

Consultation on sexual harassment in the workplace

The Government Equalities Office has launched a consultation on how best to tackle workplace sexual harassment. The key proposals include:

  • Introducing a statutory duty to prevent harassment in the workplace. This would be enforced by the Equality and Human Rights Commission (EHRC and would require employers to take ‘all reasonable steps’ to prevent harassment from occurring. At present, if an employer has taken ‘all reasonable steps’ to prevent harassment this is a defence to a sex discrimination claim. However, currently, there is no legal duty to do so.
  • Re-introducing protection against third-party harassment (this used to be enshrined in law before being repealed in 2013). The consultation asks whether one incident of harassment should be enough to trigger liability and whether the employer must actually know about the risk in advance.
  • Extending the three-month time limit for bringing discrimination and harassment claims to six months.
  • Extending protection for volunteers and interns.

The consultation closed on Wednesday 2 October 2019.

If you would like further information about any of the consultations outlined above, please contact David Smedley or Andrew Rayment.

Gender pay reporting update

A summary of reported data for 2018/19 published by the Government Equalities Office indicates that whilst there has been some improvement to the gender pay gap there is still some way to go.

Key findings of the report are:

  • 99% of organisations required to publish GPG data did so (3% missed the deadline).
  • 78% of reported median GPGs favoured men, 14% favoured women and 9% of employers reported a median GPG of 0%
  • 88% of reported mean GPGs favoured men, 11% favoured women, and 1% of employers reported a mean GPG of 0%.
  • The highest gender pay gaps were in the construction, finance and insurance sectors.
  • Only 47-57% of employers have published an action plan to tackle their gender pay gap.

Earlier this year the Equality and Human Rights Commission (EHRC) named the six organisations who failed to report their gender pay gap by the April 2019 deadline. It has now reported that following formal investigations opened under section 20 of the Equality Act 2006 all organisations have reported their figures. The organisations who were late to report have entered into formal agreements with the EHRC to report on time for the next five years, facing further action and possible fines if they fail to do so. The EHRC has said that it will now follow up with organisations who submitted implausible data. After initial concerns about the GPG legislation lacking ‘teeth’ it is clear that there will be consequences for those employers who fail to properly engage with the reporting obligation.

Our Employment Team has built up a wealth of experience in helping organisations with their GPG audits and reports. Please contact David Smedley or Andrew Rayment for further information.