In this employment law review from HR-inform, find out what has happened in the first half of 2019, and what's still to come. Kathy Daniels, one of the CIPD's employment law specialists, outlines:
- The Good Work Plan: changes resulting from this and how to prepare.
- Things to do in light of expected changes following Brexit (including right to work checks).
- Other changes to watch out for (such as pregnancy protection in redundancy situations).
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Read the transcript of the webinar
2019 in review: What’s happened and what’s coming up
30 July 2019
Hello and welcome to the review of what’s happened so far in 2019 in terms of employment law and what’s coming up. And what we’re going to cover today is the Good Work Plan as that is an area where we’ve got quite a lot of change brewing. We’re going to look at some issues relating to keeping proper records, we’re going to look at payslips and working hours. Of course we couldn’t do an update without talking about Brexit at some stage so we are going to talk about the Right To Work checks and Settled Status in light of Brexit as we understand it as at the time that we’re recording today. And then we’re also going to look at upcoming changes and areas to watch.
So that's what we’re going to cover. Let’s get going.
2019 in review
So 2019 in review – it’s easy I think at some times to think that nothing’s happening because all that everybody ever is talking about is Brexit but that's not actually true and I think one of the particularly worrying things for HR professionals is that a lot of the changes that are coming up in employment law aren’t being talked about as much as they would normally because of Brexit and so it’s really important to pick through a lot of the noise that there is around to find out what’s going on and that's what we’ve done for you today in putting this review in place.
There have been some changes during the year, there are more updates coming, there are consultations happening and so what we’re going to do is work through all of those and also explain to you what you need to do as a result of them.
As well as all the changes that are happening in the law I think it’s also useful just to remember that there are always case law rulings happening: I'm going to talk about one or two of those in this session. But also looking at some of the themes that there are and what’s happening in employment and definitely harassment, with the Me Too Campaign, with the allegations that were made in Ted Baker, that's a big issue and it’s not that the law has changed relating to harassment but it’s a topic that's come to the front of the media and therefore maybe is more in employees’ minds and thoughts than it is normally. So as well as thinking about the changes in the law it’s also useful just to be aware of what’s happening in the wider environment.
The Good Work Plan
But an area where we do need to be particularly aware is the Good Work Plan. You may remember that back in the summer of 2017 Matthew Taylor, who’s the chief executive of the Royal Society for Arts, published the results of the commission that he chaired into modern working practices. And if you’ve never read that report I strongly recommend it to you. It’s a very interesting document and it starts with an awful lot of statistics about employment today, so it’s a really useful piece of work as well. But what is of major concern to us is that there are a number of recommendations in that report.
And the recommendations are really around giving more clarity and more certainty to employers and employees about how they should operate. What Taylor and his team were doing in carrying out that review was saying is the way that we work today compatible with the employment law that we’ve got? The way we work today has changed considerably over recent years but a lot of our employment law is actually quite old so is it fit for purpose and do things need to change?
And Taylor said yes things do need to change in a number of areas and the Government’s response is the Good Work Plan. And the Government have said that they’ve accepted practically all of Taylor’s recommendations and in some areas they’ve gone even further than the recommendations. So what the Good Work Plan does is it contains all of the changes that the Government have announced in response to the Taylor Report as well as the consultation on some areas where they’re going to look further.
There are some areas where we can't give you a definitive answer at the moment because consultation is still taking place and we’ll highlight those to you. There's some areas that won't be implemented until 2020. So that's still some time away but actually time passes really quickly and April 2020 isn't as far away as we may think and of course there is a need to plan and to change some processes so we will be explaining that to you.
Already in place
So let’s have a look. First of all some things have already been put in place. Since 18 December 2018 there has been a naming and shaming process for tribunal awards and this is naming and shaming employers who do not pay employment tribunal compensation awards that they’ve been ordered to pay. And a claimant can report an employer who does not pay an award within 42 days. The Department for Business Energy and Industrial Strategy will then give employers a further period of 28 days to make the payment and if they don't the employer is fined and is also named and shamed.
It’s also worth remembering as well that a claimant who doesn’t receive their employment tribunal award can try and enforce the award being paid in the civil courts. Another change to the employment tribunal process happened last April, so 6 April 2019, and then the maximum level of penalty that the tribunal can impose when there's been an aggravated breach has been increased from £5,000 to £20,000. What is an aggravated breach? It’s when an organisation does something that is deliberate, that is malicious or is a repeated breach. It’s when the organisation is doing much more than making a mistake but it’s doing something very wrong and very deliberate. And in awarding the penalty the tribunal has to take into account the size, behaviour and resources available to the organisation.
And also if an employer has lost a case previously on facts that are broadly the same then the employment tribunal is obliged to consider whether a penalty should be imposed. Basically what employment tribunals are required to do is to make sure that employers are learning from errors that they make. It is accepted that there are situations where employers hold up their hands and say, ‘Yes we got it wrong.’ That’s okay but you can't keep getting it wrong. So that's an important message to get back into the organisation.
Changes to statement of main terms of employment
Now there are some changes coming about that are important to the statement of the main terms of employment. So under the Employment Rights Act 1996 there is a requirement to issue a written statement of initial employment particulars and that has to be issued to employees within two months of them starting work. And there are three main changes that are happening here: first of all who receives the statement; secondly the timing; and thirdly the content. So there's not a lot left that hasn’t changed really.
So this applies to individuals who are recruited on or after 6 April 2020 and from that date employees and workers are entitled to receive this statement of terms of employment. So it’s important therefore to be first of all reviewing the policy of the organisation because it’s quite possible that in your organisation you’re only giving this statement to employees but also of course to be thinking about your determination of who is an employee, a worker and self-employed and making sure that you are capturing everybody who falls into the definition of a worker.
And at the moment the requirement is to give the statement within two months of employment but the requirement will be to give the statement on the first day of employment or before. So again processes have got to be changed.
For a lot of employers they will already be giving the statement before an individual starts work. For a lot of employers the statement of initial employment particulars is the same document as the offer of employment. But if what you’re doing is giving an abbreviated offer, where you're just highlighting the key terms and conditions, and then at a date within two months of starting you’re giving them the full statement you will have to change that process. And the full statement that you've got to give contains all the current information; so that's the hours of work, holidays, sick pay, the disciplinary procedure, the grievance procedure, the place of work etc. and it also includes additional information that you don't have to give at present.
So you will have to give the duration and conditions of the probationary period. So how long is probation and what does it actually mean because employers mean different things by a probationary period, some exclude certain benefits during the probationary period, some don't specify that if the individual does not meet the required standard then their employment will be terminated without a requirement to go through the company disciplinary procedure. So it’s an opportunity actually to tighten up how you define the probationary period and what the individual is expected to achieve in that time and what happens if they’re not.
Another thing that's worth thinking in your duration and conditions of the period is having something in there about that borderline situation where the individual doesn’t meet the required standard but is nearly there, and so what you want to do is to extend the probationary period rather than actually terminate the employment. And that should be in your conditions of the probationary period.
Another thing that you will have to include is the details of the days and times that the individual is required to work and to say if that is going to vary, and if it is going to vary how that variety is going to happen. So it could be that what you’re actually saying is you could work any day of the week, so if you've got an organisation that is working seven days a week you may be saying to individuals that they work any day of the week including Sunday, and obviously they won't work every day of the week and that a rota will be created, and then explaining how the variation would happen.
In terms of the times that individuals are going to work if there are shifts you need to explain that but you could say the earliest time that somebody would be required to work and the latest time that their work is going to finish in a day and the maximum hours that they’re going to work in a day.
It’s worth just taking a step back, why are we telling individuals the days and times they’re required to work? So they can plan their lives. And so you've got to give the information they need so that they can plan appropriately.
You are also required to give details of entitlement to paid leave and other benefits, so paid leave, think about maternity leave, paternity leave etc. And details of training entitlement, so any entitlement to training that you provide and in particular explaining any bits that the worker is required to complete, anything that is not funded by the employer. If there are training requirements, so things that the individual has got to do when have they got to do it by.
And just going back, I don't think I said, where it says ‘details of entitlement to paid leave or other benefits’ so any other benefits, so are there vouchers, subsidised lunch, it’s not just pay, any benefits that the individual is going to receive. Basically what this document, the written statement of initial employment particulars, has got to do is tell the individual everything that they need to know about working for you.
Changes to agency workers
Now there are also some changes to agency workers and first of all the Swedish Derogation is going. The Swedish Derogation is so named because it comes from Sweden, believe it or not, and it allows employers to opt out from giving parity of pay. So under the Agency Worker Regulations 2010 once an agency worker has been placed in an organisation for a continuous period of 12 weeks the agency worker is entitled to receive the same terms and conditions of employment, including pay, as a permanent employee in the organisation doing the same work. The Swedish Derogation allows the employer to opt out of that requirement of that parity but in return the agency gives the agency worker a permanent contract and pays them between assignments. And under the Swedish Derogation they have to pay for at least four weeks and can't pay a rate lower than the national minimum or living wage.
So that’s all going from 6 April 2020 and from this date agency workers will be entitled to equal pay treatment after 12 weeks and there’ll be no opportunity to argue the Swedish Derogation. And all those who are working under contracts that currently contain this Swedish Derogation opt-out clause will have to be provided with an explanatory statement and that must be given to the agency worker by 30 April 2020, explaining that the Swedish Derogation is going and that they’re now entitled to this equal pay and terms and conditions after 12 weeks.
So if you’re using agency workers and the Swedish Derogation is being used then you first of all need to make sure that you’re adjusting your processes to reflect the fact that it’s going and secondly you need to make sure that this explanatory statement is being given.
Other known changes
Also the agency workers will have a right to receive a key information document. And this is from 6 April 2020, and this gives them the details of the terms under which they are being employed. It must include information about the identity of the business where they’re working; the minimum rate of pay that they will receive and any deductions or fees that are going to be taken from this; how they are going to be paid and who is going to pay them, so is the money going to come from the agency or the organisation where they work; either an estimate of the pay or an example of what their take-home pay is going to look like. So it might be difficult to estimate it but you could give an example that says, ‘So if you worked the following shifts in this week this is what your pay would look like.’ And also there is a requirement to give details of the entitlement to annual leave and pay.
This is doing something different. This statement must be written in clear English and it should not be longer than two pages of A4 and it must be provided to the agency worker before the worker agrees to the terms.
So there will be, I guess, relatively few organisations that are already doing something like this so it is important that you get a process in place ready for 6 April 2020 to be giving these documents out and also that you've got a clear paper trail that shows that you've given it and of course the easiest way to do that is when you give the document to the agency worker you ask them to sign a copy to say that they’ve received it.
Other known changes from 6 April 2020, so we’re still on 6 April 2020, a very important one to note the reference period for calculating holiday pay will be extended from 12 weeks to 52 weeks for those who receive variable pay. So at the moment somebody who’s on a salary and doesn’t receive any bonuses, commission, overtime, shift premium, whatever, holiday pay is very straightforward they’re just paid whatever it is that they would be earning when they're at work. but of course a huge amount of people do receive variable pay, overtime, bonuses, commission etc. and at the moment the employer is required to take an average of the 12 weeks prior to the period of annual leave and pay that during the annual leave. That will change and it will be 52 weeks. So it will be a rolling 52 weeks that will be the 52 weeks prior to the individual taking annual leave.
And then also the threshold of support to request information and consultation rights. So under the Information and Consultation of Employees Regulations individuals in an organisation can request an employer to set up an information and consultation body if there isn't already something in place. Now of course an awful lot of organisations do have some sort of representative body but there are still plenty that don't. At the moment for a request to be valid it has to be made by at least 10% of the workforce and that is going to be lowered to 2% of the workforce but the minimum threshold of at least 15 employees being part of the request will remain in place. And in addition to this the Government’s going to work with ACAS, trades unions and other bodies to promote development of better employee engagement, particularly with a focus on those organisations where there's a lot of casual employment or smaller organisations who may not have a structure in place, but it’s all about getting employees engaged in the organisation.
Now there are some future changes as well where the dates are not settled yet. So let’s just tell you what those are and then please look out for alerts on this when we get more data about implementation dates. It is going to be put in place that after 26 weeks of employment employees and workers who want more stability in their working pattern will be able to request a fixed working pattern. Now this obviously applies to those who are working in an organisation where they don't have fixed working. So really we’re primarily thinking here about zero hours workers. So once they’ve worked 26 weeks they will be able to say, ‘Please can I have some more stable way of working?’ The employer will have to then look at how the work management has gone, the future forecast of what work they’ve got and decide whether they can accommodate it. And the employer will be able to refuse a request on certain grounds. It probably will work in a very similar way to a request for flexible working at the moment. So at the moment any employee with at least 26 weeks service can say, ‘Please can I work flexibly?’ and the employer can say, ‘No,’ as long as the reason for saying no fits with one of the set reasons in law. And it’s likely to be a very similar process and as with flexible working there'll be a three month timeframe in which to respond to the request.
Another change is going to be the gap that breaks continuous service. So at the moment if an individual ends their employment but starts again within a week then their continuity of service is preserved. And the intention is to extend that one week period to four weeks. So if the employee leaves the organisation and comes back within a four week period their continuity of service would be preserved.
There's also going to be legislation put in place to stop employers making deductions from staff tips to give more financial benefit to workers who will receive the tips that they earn. And there is going to be legislation to clarify employment status. Employment status is one of those things that causes a lot of headaches. The definitions of employee, worker and self-employed are not clear in law. They are different for the purposes of employment rights and tax. So there's definitely a plan to bring employment rights and tax in line with each other, which will be good news, but also there's going to be clearer guidance on how to classify staff.
It could well be that the control element becomes more important than the right to substitute, so if somebody has a right to ask somebody else to do their work they’re very unlikely to be an employee. But it could well be that in the new definitions more emphasis is put on control. But that's a little bit of speculation, we wait and see what the better guidelines will be.
Now payslips. There are going to be changes and there already have been changes. From 6 April 2019, all employees and workers are legally entitled to receive an itemised payslip and failure to provide that breaches their rights. And what we mean by itemised is that the payslip should show how the pay is put together, so base pay, overtime, shift premium, all of those things should be broken down so that individuals can see how their final gross pay has been created. And then it should also show the deductions, again broken down, tax, national insurance, any other deductions that have been made. And the idea is that people understand what money they’re receiving.
Also talking about payslips if the hours that individuals work varies then since 6 April 2019 the number of hours worked must be included on the payslip. So if you’ve got somebody who’s salaried, whose pay does not vary according to the hours that they work then there is no requirement to put their hours on the payslip. But if you've got somebody who’s hourly paid or a zero hours worker where their pay is directly related to the hours that they work then that must be on the payslip.
Recording working hours
Now let’s move on to think about records. Now under the Working Time Regulations 1998 there is a limit on the working week of 48 hours and there are also limits on the amount of night work that individuals can do. And to ensure compliance with that there is a requirement to keep adequate records. And you’re probably aware that there is an opt-out from the 48 hour working week that individuals can sign. If an individual does opt-out of the 48 hour working week then the employer is required to keep records showing how much work the individual is actually doing.
And then there is a requirement to record overtime and any additional hours that are worked, not only to check that the 48 hour week is either adhered to or to record it because the individual has opted out, but also to ensure that individuals are getting their rest breaks.
Keeping proper records
Now an interesting case has come to the European Court of Justice, it’s a Spanish case but it was brought before Brexit and therefore does apply to the UK. I’ll do my very best at pronouncing it, it’s the Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE. And basically what happened in this case, while you’re all laughing at my Spanish pronunciation, was that the unions argued that the Working Time Directive, which is the European law on working time, placed an obligation on Deutsche Bank to introduce a system that recorded the actual number of hours that were worked each day by full-time employees. The Bank had complied with Spanish law that requires the record of overtime hours but they weren’t recording the actual hours that were worked by everyone in contractual hours. And the European Court of Justice has confirmed that it is necessary to keep a record of the hours worked because it’s necessary to ensure that the working time legislation is being applied effectively.
So what are the requirements on you? Well this case is binding because it is prior to Brexit. First of all as I already said the Working Time Regulations require that adequate records are being kept but currently there's no legal requirement to keep records specifically about rest and rest breaks. Really what all organisations ought to be doing is reviewing their working patterns and their shifts, first of all to ensure that staff are receiving the correct breaks and aren’t working excessive hours, and then ensuring that there is some effective way of documenting the actual hours that are being worked by individuals. And in doing this do remember that there are an awful lot of employees that check their emails at home and it may be that they’re leaving work at a certain hour but they are doing an extra hour or two’s work in the evening as they plough through those dreaded emails. So it is important to ensure that you are keeping appropriate records.
Maybe it’s worth mentioning that when people have gazed into the future post-Brexit and have said what changes will there be to employment law, working time is usually one of those that are mentioned. But I would emphasise that that is people gazing into the future, it’s not that there has been any decision whatsoever about that.
Right to work checks
Right so let’s build up to talking about Brexit and let’s do so by talking about right to work checks. So this is the check that you have to carry out to ensure that an individual has the right to work in the UK. Since 28 January this year, 28 January 2019, it has been allowed to carry out online checks for individuals who have a biometric residence permit, a biometric residence card or status under the EU’s Settlement Scheme. If an online check is carried out because of one of those reasons there is no requirement to carry out an additional documentary check.
Online right to work checks
Now the online right to work check still requires a three stage check for employers, so the employer has to access the Home Office online Right to Work checking service by putting the share code and the date of birth of the individual in on the employer portal and then has to check firstly the individual has the right to work in the UK; secondly that the individual has the right to do the work in question; and thirdly that they photograph that is there of the individual on the online Right to Work check is consistent with the appearance of the individual presenting themselves for work.
And then as the employer you must keep evidence of the online Right to Work check. So there's a profile page where the right to work status is confirmed. This is the page that includes the photograph and the date that the check was carried out. And that page should either be printed and kept on the individual’s record or saved in a format in which it can't be edited, just as a pdf. And it must be kept for the duration of employment and for two years afterwards.
An employer can't give the statutory excuse if they do not carry out the check on the employer part of the service. So what that means is you can't just access the employee portal, that's not sufficient, you've got to carry out that three stage check.
What is really important is that those who are carrying out the check understand what they can and can't do and that just accessing the employee portal is not an online Right to Work check, there is that three stage check that must be gone through.
The Home Office has confirmed that the right to work check process will remain in place until the end of 202 even if there is a no-deal Brexit but from January 2021 a new checking system will be introduced.
Now Settled Status, and this is where EU nationals can apply for UK residency, is still open for applications despite the uncertainty that there is around Brexit. So EU nationals that have five years’ UK residency by 31 December 2020 can apply for settled status. Those with less than five years’ residency by 31 December 2020 will be able to apply for pre-settled status. All applications must be submitted by 30 June 2021. And this isn't required for those that have got indefinite leave to remain or who are Irish nationals. They can choose whether to apply for UK settled status.
So this all remains regardless of Brexit. What then do employers need to do? Well it might be useful to help make staff aware of the process, of course care has got to be taken because there is no obligation on anyone to apply for settled status but it might be useful to support employees in understanding that the process exists, in allowing them access to a computer to make the application, and to help them in accessing additional support if they need it. It’s really important to remember that this is a very individual and personal choice and there may be all sorts of reasons that employees do not want to apply for settled status and no pressure should be put on them. There is a possibility if they felt that there was pressure or if they felt that they were being treated less favourably that they could argue that it’s race discrimination. So it’s really just about making sure employees have got the information and have got the support and then leaving it to the employees to do whatever they want with that information.
In a ‘no-deal’ Brexit
So in a no-deal Brexit the UK settlement scheme will continue to apply for EU nationals who are resident in the UK by the date that the UK actually leaves, which of course is currently set to be 31 October 2019. The application scheme for settled and pre-settled status will remain with EU nationals having until 31 December 2020 to make their settled status application and then there’ll be a new process in place from 1 January 2021.
Now what about EU nationals who arrive after Brexit? The Home Office has confirmed that if there is a no-deal Brexit free movement will end as soon as possible after the date that the UK leaves the European Union and then there'll be a transitional period for EU workers until 31 December 2020. And during this transition period EU nationals will be able to travel to the UK for work for a period of three months without any additional restrictions or the requirement to pay a fee. But if they want to stay longer than three months then the EU national will be required to apply for and to receive a European Temporary Leave to Remain, and that will give the individual the right to remain in the UK for a further period of three years.
So there's still a question about what is this and what is that that’s going on here but hopefully that gives a little bit of insight into what’s going to happen with and without Brexit.
Areas to watch
Voluntary overtime and holiday pay
Let’s move away from Brexit and let’s just talk about an important case that we got the ruling from the Court of Appeal in June 2019 and this is a case of East of England Ambulance NHS Trust v Flowers. And the question here was whether voluntary overtime should be included when calculating holiday pay. So back to what I mentioned just a moment ago, when we calculate what to pay an individual during their annual leave what we do is we take an average of the earnings over the previous 12 weeks.
What do we include in those earnings? Well we include all sorts of things and the important message from this case is that if overtime is sufficiently settled and regular then it should be included in that payment. What we had here was people working for the Ambulance Service who had voluntary overtime, they weren’t required to do it, it was completely up to them, but it was a regular feature of their contract. So if it’s sufficiently regular and settled then you should be including it when you carry out your calculation of what to pay somebody when on annual leave. Just be aware that this case may well be appealed to the Supreme Court.
Enhanced maternity pay and sex discrimination
Another interesting ruling that we’ve had recently was in two cases actually, Ali v Capita Customer Management and Hextall v Chief Constable of Leicestershire Police. And these cases were considered together by the Court of Appeal because they were basically addressing the same question. In both cases a male employee in the organisations had taken shared parental leave. In the organisations if a woman took maternity leave she got enhanced company maternity pay but in both the cases the male employees taking shared parental leave were told that they would just receive statutory pay and they argued that this was sex discrimination.
And the argument has been rejected by the Court of Appeal saying that paying a statutory payment for shared parental pay but an enhanced payment for maternity pay is neither direct nor indirect sex discrimination because the purposes of the leave are different. So although there is one purpose for parental leave and maternity leave to care for the child, maternity leave is also for recovering from the biological event of giving birth, it’s likely to be a period of time for the mother to be establishing breast-feeding, and therefore the two periods of leave are for different purposes and it is not sex discrimination to treat the leaves differently in terms of pay.
Pregnancy protection in redundancy situations
Whilst we’re on the topic of maternity leave it’s worth mentioning a period of consultation that is going on and this is sparked largely by research that shows that a lot of women, a group of the EHRC, 54,000 new mothers lose their job due to pregnancy and maternity discrimination every year. And as you’re probably aware at the moment women on maternity leave must be offered suitable alternative employment in preference to anyone else if they are at risk of redundancy so if a person on maternity leave is put at risk of redundancy and there is suitable alternative employment which she could do because she's capable of doing it then she has to be offered it even if she's not the best person for the job.
And the Government is currently consulting about extending this period of protection, so this period of giving priority in suitable alternative work, to include the time from when a woman becomes pregnant until six months after she returns to work. So it does only cover women at the moment on maternity leave; it doesn’t cover women who are pregnant and have not yet started maternity leave. The Government is also consulting about extending the same protection for those on adoption leave, shared parental leave and taking longer periods of parental leave.
So we’ll wait and see what happens after that consultation but in the meantime it is just worth checking that when redundancy procedures are being applied, particularly the selection process, that it is being applied fairly.
‘Sleep ins’ and the national minimum wage
Now moving on to a different topic, ‘sleep ins; and the national minimum wage. The Supreme Court has ruled in the case of the Royal Mencap Society v Tomlinson-Blake and in this case there was a care worker who did ‘sleep in’ shifts. So what that meant was that the care worker had to be on the premises, slept in, but was allowed to sleep but if something occurred, some problem then the care worker had to get up and deal with it. And the care worker was arguing that she should be paid the national minimum wage for the whole period that she was asleep, even if she wasn’t required to work, because she was required to be present on the premises then she was working. And the Court of Appeal has said no. If the individual is expected to be asleep for most of the shift or all of the shift then they are available for work but they are not actually working and the national minimum wage only has to be paid when somebody is actually working.
Now we have had cases in the past which have reached a different conclusion to this, for example, Whittlestone v BJP Home Support Ltd., when it was ruled that a worker who was required to sleep was working in terms of the purposes of the national minimum wage because she would have faced disciplinary action if she'd left the workplace. We also had the case of Esparon t/a Middle West Residential Care Home v Slavikovska which said that the national minimum wage was payable for sleeping hours when there was a statutory requirement to have a set number of qualified people on the premises.
However the Court of Appeal have said that in this case when you are allowed to sleep and you’re not required to do any work unless you’re woken to do it then you are only available for work and not actually working.
Now this case is due to be appealed in the Supreme Court so we do await with interest to see what the Supreme Court make of it all but in the meantime it’s worth being aware of this judgement.
Veganism and discrimination
Now another interesting one to be looking out for is whether ethical veganism falls within the protected characteristic within the Equality Act 2010, the protected characteristic of religion and belief. You may be aware of the case of Grainger v Nicholson which said that for a belief to be covered by the Equality Act it must be a philosophical belief that affects the way that an individual lives their life, views the world, and it must be genuinely held and not just opinion; it must be about a weighty and substantial aspect of human life and behaviour; it must be able to attain a certain level of logic, seriousness, structure and importance and it must be worthy of respect in a democratic society not incompatible with human dignity and not conflict with the fundamental rights of others.
So we wait to see what the employment tribunal makes of this and whether ethical veganism meets with that test. So that's one to watch out for.
Restrictions on the use of confidentiality clauses
Another thing to be aware of is that the Government is going to be introducing new legislation to prevent the misuse of confidentiality clauses and non-disclosure agreements, often referred to as NDAs. And what they are going to put in place is that NDAs cannot stop disclosures to the police, regulated health and care professionals or legal professionals, that the limits of the confidentiality clause is clearly set out and that when individuals are advised about such agreements it must explain the limitations of the confidentiality agreement.
Really in a nutshell what the Government’s doing is saying the NDAs must not be misused to hush people from talking about things that they should be able to talk about or from being able to go to bodies that can advise. So if an individual is prohibited from talking to a body about something then it may be that they can't actually seek advice and the Government is putting in place legislation to stop the misuse of confidentiality clauses and NDA agreements and if confidentiality clauses do not comply with the new requirements then employment tribunals will be able to make additional compensatory awards. Now we are waiting for the detail of this law to be produced but it’s just worth being aware of it.
Ethnicity pay gap reporting
And finally the other thing that we would like to bring to your attention is the ethnicity pay gap reporting. We’re all familiar now with gender pay gap reporting and the Government carried out a consultation that ended on 11 January 2019 about introducing ethnicity pay reporting. And the Government has said that they do believe that it should be introduced and they will be doing this through the introduction of primary legislation. It’s likely that the legislation will mirror the gender pay gap reporting so that the reporting will be triggered if an organisation has got 250 or more employees.
There's things to sort out, so the classification of ethnicity data, how the data is collected, how it works if individuals don't want to disclose their intended ethnicity and what classifications are going to be used. The Office of National Statistics talks of five broad ethnic groups and then 18 detailed ethnic groups, so there's going to need to be some standardisation of the groups that are going to be reported.
So we still need to have a little bit of detail around this but it’s very much like when gender pay gap reporting was first being talked about because a lot of organisations carried out gender pay reporting internally just to become familiar with what was required and looking at their own data and we would strongly recommend that it’s worth starting to carry out some internal analysis yourself just to see if there is any issue in your organisation.
So here’s some key points from the session. Make sure that your processes are up to date with all the changes that we’ve talked to you about. And think about what you need to change given the changes that are going to occur on April 2020. Look at your internal rules on areas such as discrimination and appropriate behaviour to reduce the risk of unlawful conduct. And just have a think about ethnicity pay data. And as I say it’s strongly recommended that you carry out some internal analysis before it becomes compulsory.
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