Employer Right to Work Checks
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Administrative worker wins £75,300 over desk move disagreement

An employer found out that making mistakes when dealing with reasonable adjustments can mean you end up with some very costly consequences!

In Bannister v The Commissioners for Her Majesty’s Revenue and Customs, the employee was asked to move desk from one floor to another because her team was being disbanded.  She told one of her managers that she was an alcoholic and that due to her condition, she could not move desks.  Following a conversation with a manager, the manager noted that the employee apologised that she had turned a small change like a desk move into a big issue.  An Occupational Health Adviser informed the employer that the employee had suffered from depression for about three years and had become anxious when asked to move desk, but said that she was fit to work.  They continued that the employee ‘remains vulnerable to further episodes of this condition, the frequency or severity of which cannot be predicted’ and that her ‘condition is likely to be considered as disabilities because they have lasted for longer than 12 months and would have a significant impact on normal daily activities without the benefit of treatment’.

The employee was issued a first written warning for poor attendance.  After several Fit Notes stating she was not fit to work because of alcohol dependency, anxiety and depression and meetings with management, the employee was told she would be moving.  The employee complained and was told by a senior manager ‘in fairness, he was not aware of issues around previous moves and, to be honest, he had no interest’.

In another letter by an Occupational Health Adviser, the employer was told that the employee was ‘keen to return to work, however she needs to go back to where she was with her desk prior to the absence and that after a few days settling in she will be able to manage in work’.  The employee’s request to return to work with her old team for a short period of time before moving to her new team was declined.  She was dismissed and subsequently appealed the decision to dismiss her and the decision to not be awarded compensation, but both appeals failed.

The Tribunal found that the employee required the ‘security of an established routine at the workplace and that any change posed a threat which unsettled her’.  She was scared of drawing any attention to her and gave a number of examples of how she reacted to stressful situations, for example, she would not board a busy bus or join a queue with more than three people in the supermarket.

It was clear in the Tribunal’s view that this requirement to work on a different floor caused a ‘serious unsettling effect’ on the employee and put her at a substantial disadvantage when compared to people who were not disabled.  She wanted to return to work and would have done so but for this requirement to move desk and change floors.

The Tribunal noted that the employer had offered several adjustments including a phased return to work, a temporary reduction in hours, the elimination of performance targets and a lighter workload. However, they concluded that they had failed to make a reasonable adjustment by not allowing the employee to return to her original desk for two weeks.

She was awarded nearly £75,300 in compensation.

There is a legal duty under the Equality Act to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by:

  • an employer’s provision, criterion or practice or
  • a physical feature of the employer’s premises or
  • an employer’s failure to provide an auxiliary aid.

Some examples of reasonable adjustments include:

  • adjusting the recruitment process,
  • changing equipment,
  • allowing a disabled person to make a phased return to work
  • making physical changes to the workplace.

For a worker to be considered disabled under the Equality Act, they must show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.  A person will meet the disability definition under the Act if they have an HIV infection, cancer or multiple sclerosis, but someone who has alcohol dependency will not fall within under this definition.

As this case proves failing to make reasonable adjustments can be costly so it’s important to understand what the law requires and how to minimise any risks to your business.  At Solve. we can advise and support with disability cases.

What you need to know on Gender Pay Gap Reporting

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 introduced an obligation for larger employers to report on salaries and pay and the differences in pay between men and women. The key points;

  • Reporting requirements will apply to each separate legal entity (i.e. the employer) with at least 250 employees within a group structure
  • The legislation focuses on employers with 250 or more employees delivering a report on the 5th April of a given year- you must use your actual headcount – FTE and length of service of employees does not matter.
  • The Equality Act 2010 makes it unlawful to prevent employees from having discussions to establish if there are differences in pay. However, an employer can require their employees to keep pay rates confidential from people outside of the workplace.
  • If an employer argues that ‘they cannot afford to pay’, this will not be a sufficient defence if discrimination on the grounds of sex is the reason for the differences in pay rates.
  • Also to claim that women are paid less than men because they are ‘prepared to work for less’ is not a defence.

The Business Case for Equal Pay:

Some of the barriers to gender equality and diversity include lack of opportunity to balance work with personal responsibilities, occupational segregation, gender bias and the gender pay gap.

If employers do not give women and men ‘equal pay for equal work’ then they run the risk of equal pay tribunal claims.  Furthermore, it can result in failing to attract the best candidates and retaining staff.

It makes good business sense to treat women and men equally.

If you understand the barriers to equality and diversity you are more likely to eradicate the inequality and improve diversity.

As an employer you are under a legal obligation to provide equal pay.

In the Britain, there is an overall gender pay gap of 19%. This shows that a woman, on average, earns around 80p for every £1 earned by a man.

How to conduct an Equal Pay Audit:

  1. Gather information

The first step of an equal pay audit is for the employer to assemble information about the organisation’s roles and pay arrangements. The employer could instruct an equal pay consultant to assist with the audit, and should involve managers and trade union or employee representatives.

The Equality and Human Rights Commission provides an equal pay review audit toolkit for employers.

Close the Gap is a Scottish partnership project looking at and working on women’s participation in the labour market.  This site has some useful information for employers.  www.closethegap.org.uk

 

  1. Determine which jobs are equal

Like work

Work that involves similar tasks requiring similar skills, and where any differences in the work are not of practical importance.

Job titles are the most common indicator of like work, but they can also be misleading. You need to review the job titles in your system early in your audit to ensure that the same, or very similar, titles really do indicate like work.

 

Work of equal value

Work of equal value is work which is not the same and is not rated as equivalent, but is of equal value in terms of factors such as effort, skill and decision-making.

Jobs that may be entirely different in content might be considered work of equal value when the demands made on the employees doing them are assessed. Do not assume that different types of jobs cannot be of equal value.

Applying a fair analytical job evaluation is the most reliable way of assessing whether jobs are of equal value.

If not using analytical job evaluation, you need to find an alternative means of checking whether employees are doing work of equal value.

 

Work rated as equivalent (under a job evaluation study)

Work rated as equivalent is work that has been rated under a fair job evaluation scheme as being of equal value in terms of how demanding it is.

Please note: grading that is not based on analytical, gender neutral job evaluation will not provide you with an effective defence against equal pay claims.

 

  1. Identify pay gaps

Once the employer has determined which jobs are equal, it should calculate whether or not there are gaps in pay for equal work.

 

  1. Determine the causes of pay gaps

If an equal pay audit reveals that the organisation is not giving ‘equal pay for equal work’, it should determine whether or not this is due to sex.

 

Can you argue that it is due to another reason – the ‘material factor defence’?

Possible material factor defence arguments include:

  • market forces, recruitment and retention factors, where the additional pay was made in response to demonstrably higher market rates than the normal grade rate. (you would need clear evidence of this, that the comparison is appropriate and the market information is not influenced by discriminatory factors e.g. job segregation)
  • differences in individual performance (you would need clear factual evidence of how this has been assessed)
  • differences in experience (you need to be extremely careful with this one and be able to argue that the difference in pay reflects differences in competence, performance or output)
  • differences in collective bargaining arrangements.

 

For something to be considered a ‘material defence’ – it has to be significant and relevant. It has to be the real reason for the difference and not a sham/pretence. It has to be the ‘cause’ of the difference in pay between the woman and her comparator.

For something to be considered a material defence the material factor must not be directly discriminatory and if it is indirectly discriminatory, the difference in terms must be justified.  (objective justification)

 

Indirect discrimination is where a pay system, pay policy or other policy, or a certain arrangement has a disproportionate adverse impact on women compared to their male comparators. If you cannot objectively justify it then it will not hold as a defence.

  1. Develop an equal pay Action Plan

If you discover ‘unequal pay for equal work’ what do you do?

Plan towards providing equal pay:

  • Introduce Equal Pay Policy
  • Train managers to make decisions that do not discriminate on basis of gender
  • Introduce initiatives to minimise occupational sex segregation
  • Monitor pay on a regular basis
  • Look at your processes – how do you determine your pay structure? How do you determine pay increases?

 

Understand that this is not a one off process. Implementing equal pay must be an ongoing business objective and kept under review.

Although the regulations will not require the publication of action plans, the non-statutory guidance will encourage employers to do so voluntarily where appropriate.

 

Moving Forward in preparation for pay gap reporting:

  1. Identify ‘relevant’ employees

Regulations apply to employees within the meaning of section 83 of the Equality Act 2010:

  • Any employees as per the Act who are paid during the reference period would be included: employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. Therefore zero-hours contractors, apprentices and some consultants would be included.
  • Those who are not based in Great Britain but are still regarded as being employees of employers within scope could still be covered because of a strong connection with Great Britain.
  • Self-employed people (those who are not employees for the purposes of the Equality Act 2010) should not be included in the overall gender pay gap calculations (someone who does not have a contract of employment or a contract to personally do work with the employer)
  • Partners in a firm, including LLP members, are not included
  • Agency workers will be taken into account by the employer with whom they have the contract of employment or a contract personally to do work (generally their agency)

Note – employer is not required to include data relating to a relevant employee if:

  1. Person is employed under a contract personally to do work, and
  2. The employer does not have, and it is not reasonably practicable for the employer to obtain the data

So some self-employed workers may be part of the 250 employees but actual data may not be included if it is not ‘reasonably practicable’ to obtain this information

 

 

  1. Identify the pay period
  • Period when the employer pays the ‘relevant employee’ basic pay, whether weekly, monthly etc
  • If not paid basic pay then look at the period the employer most frequently pays the employee one of the elements of ordinary pay as defined below

3. Identify the ‘relevant pay period’

  • Means the pay period within which the ‘snapshot date’ falls (snapshot date is the 5th of April each year)

 

 

  1. Identify the ‘full-pay relevant’ employees
  • When looking at mean and median hourly rate of pay differences the Gender Pay Gap calculations will cover only those employees receiving their full pay during the specified pay period.
  • The bonus pay gaps look at relevant employees not just full-pay relevant employees
  • Consider who is a ‘full-pay relevant employee’ – this means someone who is not, during the relevant pay period, being paid at a reduced rate or nil as a result of the employee being on leave (so part time staff are classed as ‘full-pay relevant employees’ as long as they are earning their usual/full pay during the relevant pay period). Therefore staff receiving their full pay during parental or sick leave should be included in the mean and median hourly rate of pay differences but someone receiving less than their full pay should not be included.

 

  1. Identify working hours in a week
  • Normal / usual working hours per week
  • If no normal / usual working hours then average working hours per week using 12 week period ending with the last complete week of the relevant pay period. If no work done then ignore that week and go back a further week(s) to get your 12 weeks to take average from
  • If person has not been employed long enough to have 12 week period then use a ‘number which fairly represents the number of working hours in a week’ e.g. contracted hours or average hours of other staff in same job

 

  1. Then divide into 2 categories (male and female)

 

  1. Define ‘ordinary’ pay
  • “Ordinary Pay” includes basic pay, paid leave, maternity pay, sick pay, area / geography allowances, shift premium pay, shift allowances, and other pay (including car allowances paid through the payroll, on call and standby allowances, first aider or fire warden allowances).  Includes all allowances paid in money that have been earned in the pay period as part of the employee’s job
  • It does not include overtime pay, expenses, the value of salary sacrifice schemes, benefits in kind e.g. company cars, redundancy pay, other types of severance and termination pay, pay in lieu of leave, arrears of pay and tax credits, and pay for a different period

 

(If a company feels that their reporting results are skewed because of the greater take up of salary sacrifice schemes by one sex more than the other then this can be explained in the narrative summary. Similarly if a company feels that female employees’ earning potential is being depressed because they need to or opt to work family friendly hours and don’t therefore earn shift allowances/shift premium pay this can be highlighted in the narrative summary)

 

Pay is to be calculated before deductions for PAYE, national insurance, pension schemes, student loan repayments, compulsory deductions e.g. court-imposed payments.

Above to be in line with national gender pay gap figures, definition of pay is consistent with that used by the Office of National Statistics (ONS) for the Annual Survey of Hours and Earnings (ASHE). 

 

  1. Define bonus pay
  • “Bonus pay” is any remuneration that:
    • is in the form of money, vouchers, securities, securities options, or interests in securities – Remuneration in these forms is to be treated as paid to the employee at the time, and in the amount in respect of which, they give rise to taxable earnings or income as per the meaning of taxable earnings or income within ITEPA 2003 – Income Tax (Earnings and Pensions) Act
    • relates to profit sharing, productivity, performance, incentive or commission
  • Bonus pay does not include – ordinary pay, overtime pay, remuneration in relation to redundancy or termination of employment

 

  • It does not matter if the bonus is contractual or discretionary

 

  • For bonus pay gap info: The bonus information must be based on the preceding 12-month period, beginning with the 12 months leading up to 5th April (leading up to 5th April 2017 for the first set of figures to be published).

 

  • Gender pay gap calculations and earning quartiles are all based on headcount rather than FTE (full-time equivalent). If a gender bonus gap has been skewed where a percentage bonus has been paid to full-time and part-time employees, the employer may want to highlight that in their narrative summary.

 

  1. Define Hourly Rate of Pay
  • Have your relevant pay period
  • For each person identify all amounts of ordinary pay and bonus pay paid during the relevant pay period
  • Don’t include any ordinary pay that would normally fall to be paid in a different pay period
  • For bonus pay paid during the relevant pay period – if this bonus is not just for that pay period then divide the amount by the length of the bonus period** and multiply it by the length of the relevant pay period** (basically pro rating the bonus paid if necessary)
  • Add the ordinary pay and (pro rata) bonus pay together
  • Multiply this amount by 7
  • Divide this amount by number of days in relevant pay period
  • Divide that amount by the number of working hours in a week for that person

 

** year is treated as having 365.25 days and month treated as having 30.44 days

 

  1. Create Salary Quartiles

Basis of this is to be able to look at the proportion of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands.

 

The objective is to identify the numbers of women and men in each quarter by the overall pay distribution.

 

This will help employers consider where women are concentrated in terms of their remuneration and if there are any blockages to their progression.

 

 

 

Six Areas that need to be reported on

  1. Difference in mean hourly rate of pay

“Mean” = means the sum of all the values in a list divided by the number of values

(Average calculation)

Reflecting the full earnings distribution, the mean can be useful because women are often over-represented at the low earning extreme and men overrepresented at the high earning extreme.

  • Have your full-pay relevant employees – only include these in this calculation
  • Use the hourly rate of pay you have defined for each person
  • Work out male average (mean) rate of pay and female average (mean) rate of pay

What to publish

  • The difference between mean hourly rate of pay for males and that of females must be expressed as a % of the mean hourly rate of pay of male employees during the relevant pay period:

(A minus B)     x 100

                                                                   A

  • A is the mean hourly rate of pay of all male full-pay relevant employees
  • B is the mean hourly rate of pay of all female full-pay relevant employees

 

  1. Difference in median hourly rate of pay

“Median” = means the middle value in a list where the values are listed in numerical order, from lowest to highest

(Point at which half earn more and half earn less)

By identifying the wage of the middle earner, the median is the best representation of the ‘typical’ difference as it is unaffected by a small number of very high earners.

  • Have your full-pay relevant employees – only include these in this calculation
  • Use the hourly rate of pay you have defined for each person
  • Work out median rate of pay for males and median rate of pay for females

 

What to publish

  • The difference between the median hourly rate of pay of male employees and that of female employees must be expressed as a % of the median pay of male employees during the relevant pay period:

(A minus B)   x 100    

                                                                    A

  • A is the median hourly rate of pay of all male full-pay relevant employees
  • B is the median hourly rate of pay of all female full-pay relevant employees

 

  1. Difference in mean bonus pay
  • The relevant period for this calculation is the period of 12 months ending with the snapshot date (so for the very first calculation this will be the 12 month period leading up to 5th April 2017)
  • This calculation is applicable to relevant employees – so anyone employed on the snapshot date – 5th April each year (this calculation is not limited to full-pay relevant employees)
  • work out average (mean) bonus pay for males and average (mean) bonus pay for females

What to publish

The difference between the mean bonus pay paid to males and that paid to females must be expressed as a % of the mean bonus pay paid to males:

(A minus B)   x 100    

                                                                    A

  • A is the mean bonus pay paid during the relevant period to male relevant employees who were paid bonus pay during that period
  • B is the mean bonus pay paid during the relevant period to female relevant employees who were paid bonus pay during that period

 

  1. Difference in median bonus pay
  • The relevant period for this calculation is the period of 12 months ending with the snapshot date (so for the very first calculation this will be the 12 month period leading up to 5th April 2017)
  • This calculation is applicable to relevant employees – so anyone employed on the snapshot date – 5th April each year (this calculation is not limited to full-pay relevant employees)
  • Work out median bonus pay for males and median bonus pay for females

 

 

What to publish

The difference between the median bonus pay paid to males and that paid to females must be expressed as a % of the median bonus pay paid to males:

(A minus B)   x 100    

                                                                    A

  • A is the median bonus pay paid during the relevant period to male relevant employees who were paid bonus pay during that period
  • B is the median bonus pay paid during the relevant period to female relevant employees who were paid bonus pay during that period

 

  1. Numbers of men and women who received bonuses

% of men who received a bonus and % of women who received a bonus

  • Relevant employees (this calculation is not limited to full-pay relevant employees)
  • Relevant period is the period of 12 months ending with the snapshot date (5th April)
  • Again only need to capture the data of those employees who are employed on the relevant date (5th April)

 

  • Proportion of males who were paid a bonus as a % of the males overall (male relevant employees)
  • Proportion of females who were paid a bonus as a % of females overall (female relevant employees)

 

  1. Salary Quartiles
  • Only full-pay relevant employees included in this calculation
  • Use the hourly rate of pay you have defined
  • Rank hourly rates of pay low to high
  • Find median point in the ranking and this will help you create lower, lower middle, upper middle and upper quartiles
  • Where employees receiving the same hourly rate of pay fall within more than one quartile pay band you must as much as you can ensure that equal proportions of males and females on that specific pay rate are in each of those pay bands (e.g. don’t just put the woman all into the higher band)
  • Then express proportion of males and proportion of females in each quartile band as a % of the total numbers in each quartile band

 

Contact Solve today for more help with Gender pay gap reporting.

Settlement Agreements, Protected Conversations
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5 facts about ‘Protected Conversations’

In 2013 ‘Protected conversations’ were introduced under the Employment Rights Act s 111A to allow employers and employees to have confidential discussions about ending an employment contract where there is no dispute about the termination.  Protected conversations do have limitations as discussions will not be treated confidentially in cases of automatically unfair dismissal, breach of contract or discrimination.   In cases where there is an existing legal dispute, the ‘without prejudice’ rule may apply to prevent statements made being used in court.  The following 5 points should be considered when conducting ‘protected conversations.

1. Different types of discussions will protect different types of claim.  The ‘without prejudice’ rule applies to a wider range of claims than discussions under the ‘protected conversation’ rule

2. The ‘without prejudice’ rule may protect pre-termination discussions, but will only apply if there is a genuine attempt to resolve an existing dispute

3. In cases of unfair dismissal, even if both parties wish to disclose contents of discussions, confidentiality cannot be waived under the ‘protected conversation’ rules, unless either party has engaged in ‘improper behaviour’ such as harassment, intimidation, bullying or undue pressure

4. The details and existence of a ‘protected conversation’ discussion may be protected and inadmissible as evidence in relation to an ordinary unfair dismissal claim

5. In cases where there is an unfair dismissal claim together with a discrimination claim, discussions in relation to the unfair dismissal claim must be ignored by tribunals, but not the discrimination claim

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Managing Employees During Pregnancy and Maternity Leave

Following a dramatic increase in the number of women reporting pregnancy and maternity discrimination issues, it is vital that employers understand how to avoid these issues.  Almost 2,000 people turned to Citizens Advice for help with pregnancy and maternity discrimination issues between April 2015 and March 2016; an increase of almost 25 per cent on the previous year.

Supporting pregnant employees and those on maternity leave is a must for all employers not only to avoid the possible tribunal claims but to also encourage better employee engagement.

Employers can support new mothers and avoid discrimination claims by doing the following:

1. Maternity Rights and Policy

Ensure that all employees are aware of their rights from the outset. Having a robust maternity policy in place will ensure that everyone is clear on their rights and responsibilities.  As soon as an employee informs you of their pregnancy ensure that you discuss the company’s maternity policy with them and ensure that they fully understand the process.

2. Ensure Good Communication

It’s vital to have effective communication before, during and after maternity leave.  This needs to be effective yet balanced especially during maternity leave when communication must be limited to what is ‘reasonable’.  Regular and effective communication whilst the employee is pregnant will encourage open discussion with the employee on their maternity leave plans and their intentions for their eventual return to work.

3. Right to Return

It is important to remember that employees who have been absent for 26 weeks or less are legally entitled to return to the role they held before their absence, or a suitable alternative role, on no less favourable terms. This right also applies at the end of additional maternity leave although an employer can offer an alternative suitable role if it is not reasonably practical for an employee to return to the same job. If an employee is dismissed because of her pregnancy or maternity status, the dismissal will be automatically unfair and the employer is likely to find itself faced with unfair dismissal and discrimination claims.

4. Flexible Working

All employees with 26 weeks’ continuous service are entitled to request flexible working for any reason. Many women returning from maternity leave apply for flexible working as it allows them more flexibility around childcare.  It is important to give all flexible working request due consideration and deal with them in a timely manner. Requests can only be refused if there is robust business reasons that are legally acceptable.  There are benefits to accepting such requests after maternity leave as it may make the difference between an employee returning or not returning from maternity leave. Refusing such requests could potentially give rise to an indirect sex discrimination claim as it’s now commonly accepted that more women have childcare responsibilities and are effectively disadvantaged by a requirement to work full time.

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Mental Health at Work

Employees still don’t feel mental health issues get enough support at work.

Employers should take more preventative steps to promote good employee mental well-being, encouraging a culture of openness and provide training to managers to help support and signpost employees.  Investing in preventative measures, as well as building an open and supportive culture within the Company around mental health, could help to enhance people’s mental well-being.

The top 5 ways that employers can help provide support to their employees at work, include: –

1. Phased Return to Work Programmes

2. Access to Flexible Working

3. Access to Occupational Health Services

4. Access to Counselling Services

5. Access to an Employee Assistance Programme

There are several types of support that are not rarely provided, such as: –

1. Resilience or mindfulness training for employees;

2. Training for line managers in managing and supporting people with mental health problems;

3. Having mental health champions to raise awareness of the importance of mental health at work and the support available.

Employers should consider implementing these more preventative types of steps to promote good mental health, as well as reactive approaches that come into play when people are already experiencing poor mental health.

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Age Discrimination

In the case of Dove v Brown & Newirth Mr. Dove was awarded £63,391 for age discrimination.  He had been a salesperson with the jewellery manufacturer, Brown & Newirth since 1990 during which time there were no issues with his work until a restructure in 2010 that resulted in younger team members being introduced and a younger Sales Director.  This is when the situation started to deteriorate as the Sale Director nicknamed Mr. Dove ‘Gramps’.

Mr. Dove continued to work within the sales team and did not complain about the ‘Gramps’ nickname.  In 2015 he was informed that his traditional approach to sales was out of touch with their business needs and customers found him to be old fashioned or long in the tooth.  The Company informed him that as a result of this his customers were being transferred to other sale persons and that as no alternative work could be found for him he was dismissed.

Mr. Dove lodged a case for unfair dismissal on the grounds of Age Discrimination which the tribunal upheld.  The tribunal found that he had been treated less favourably because of his age. The vocabulary used to describe customer views related to age.  The employer then acted on these discriminatory and stereotypical attitudes.  Having his customers transferred to a younger salesperson also reinforced this less favourable treatment. The employer had failed to have a proper performance process and had not investigated or challenged customer views.