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Gender Pay Reporting - How to comply

February 23, 2017 at 9:00 AM

Acas and the Government Equalities Office have published guidance on how businesses can calculate and report their gender pay gap.

Gender Pay Reporting - How to Comply

The guide has been launched in the run-up to new gender pay gap reporting Regulations, which come into force for private-sector businesses employing 250 or more people from 5 April.

The legislation requires employers with 250 or more staff to publish figures every year showing how large the pay gap is between their male and female employees. For example, it may show that on average men earn 15% more pay per hour than women, that men earn 10% more in bonuses per year than women, or that the lowest paid quarter of the workforce is mostly female.

These results must be published on the employer’s own website and a government site and means that the gender pay gap will be publicly available, including customers, employees and potential recruits. As a result, employers should consider taking new or faster actions to reduce or eliminate their gender pay gaps.

Employers will have up to 12 months to publish this information. Public sector regulations are subject to the approval of Parliament but are expected to follow the same timescale.

How we can help

Our in-house seminar – "Gender Pay Reporting: How to comply" – will take you step by step through the new legal requirements. We will tell you what you need to do, when, and how best to do it. We will help ensure that your organisation is not only compliant but also shown in the best possible light.

In addition to our seminars, we will also be offering Bespoke gender pay consultancy services, which could include comprehensive assistance with data gathering and calculations, drafting the gender pay report and accompanying narrative, preparing an action plan to improve gender pay equality, communications advice and strategy, and assistance where your calculations bring to light a possible equal pay issue.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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Getting those “off the record” conversations right

February 22, 2017 at 9:00 AM

It is all too common for managers to confuse 'without prejudice' and 'protected conversations'. Here's how employers can get the distinction right.

Many employers are familiar with the concepts of 'without prejudice' and 'protected conversations' as a method of starting exit negotiations with an employee. However, both terms are frequently used incorrectly. Without a full appreciation of their advantages and their limitations, employers can use the wrong terms and leave themselves exposed.

Getting those 'off the record' conversations right

Without prejudice

Put simply, anything written or said ‘without prejudice’ in a genuine attempt to settle an existing dispute cannot being used as evidence in subsequent litigation.

The main limitation is that there needs to be an existing dispute - so a manager having an ‘off the record’ conversation with an underperforming employee would not be covered. The employer could face a resignation and claim of constructive unfair dismissal or an argument that any subsequent dismissal was pre-determined and therefore unfair.

The dispute doesn’t have to constitute a formal claim, but the parties do need to have at least thought of litigation if they cannot reach an agreement.

Some employers assume that a grievance amounts to a dispute. It doesn’t. The employer could uphold the grievance. The individual circumstances are very relevant, and therefore it can sometimes be difficult to say with certainty whether the without prejudice rule applies.

Protected conversations

Protected conversations were introduced to enable parties to have ‘off the record’ discussions even where there is no dispute. In addition to the content, even their existence cannot be disclosed in litigation. What’s more, the protected nature of such conversations cannot be waived, even if both parties agree.

There are limitations too. They are only inadmissible in ordinary unfair dismissal proceedings. Claims of discrimination, automatic unfair dismissal, detriment, or breach of contract are not protected. Employers will not always know what claims an employee might later present. “Off the record” protected conversations are usually unwise when discussing a potential exit with an employee on long-term sickness absence, in light of the possibility of a disability discrimination claim. This is where the without prejudice rule has an advantage over protected conversations: if something is ‘without prejudice’ it is inadmissible in all legal claims, not just unfair dismissal.

Any 'improper behaviour' from the employer will lead to the protection being lost. Improper behaviour is not defined, but ACAS suggests that putting undue pressure on the employee would be an example. It goes so far as to recommend employers allow employees 10 days to consider any proposal.

Labels

A common misconception is that labelling a document 'without prejudice' will prevent it from being revealed in litigation. But it is the substance of the document, not its label, that is important. If the document doesn’t fit within the rules it will not be protected – whatever its label.

How we can help

We can explain your options and the best way for you to approach those ‘difficult conversations’ to put you in the best position possible to achieve your objective with the minimum of fuss, inconvenience and expense.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

When you forget about an employee...

February 20, 2017 at 9:00 AM

Whilst Mr Garcia, a Spanish civil servant who failed to turn up for work for "at least" six years until he was caught after becoming eligible for a long service award is an extreme example, it can be a case of ‘out of sight out of mind’ when it comes to employees who are absent from work – especially on long-term sick leave. Budgets can be rearranged to accommodate cover and if there are changes in HR and management then the absent employee can easily be overlooked. It happens more often than you think.

Most employers appreciate best practice includes regular home visits, inclusion in social and news events and referral to the employer’s occupational health professionals and reasonable adjustments to help the employee back to work. But what should a business do if they discover someone who has been off for the last year without any contact?

Empty Desk

Many employers immediately think an easy way out is to say the employee left sometime in the past. The legal term is “frustration of contract”. For a contract to stand any chance be terminated through ‘frustration’ there can be no contact at all between the parties and it can nearly always be guaranteed there has been something: the annual P60, pension update, sick notes...all of which show that the contractual relationship is still alive.

The first step to take back control is to gather information. Is this employee still being paid? Is it Statutory Sick Pay or something enhanced/discretionary or perhaps they are receiving payments under a company funded permanent health insurance (PHI) scheme? It is not uncommon for someone to have forgotten to take them off payroll when their company sick pay was exhausted.

If the employee receives PHI and is being managed by the your insurance company, they are likely to be carrying out regular assessments and be in contact with the employee, then there is generally nothing further for you to do. Unless there is a specific provision to the contrary in their contract, there is an implied term that an employer will not dismiss an employee who is in receipt of permanent health insurance payments because once dismissed, the employee is no longer entitled to payments under the PHI scheme.

Difficult decisions will need to be taken in situations where PHI is paid but for a limited amount of time where the employee is unable to work despite reasonable adjustments.

Whatever an employee’s situation, it is important to understand exactly what their ailment and prognosis is. A referral to occupational health is a starting point. If the employee has been forgotten about then be honest and say so, quickly followed by an apology and an offer to do a home visit and to talk to them about how they are. If they have been overpaid sick pay, then their first question will be ‘do I have to pay it back?’ Legally the answer to this might be yes, practically the answer is usually no.

However, if the employee is still entitled to receive company sick pay, and it has not yet been exhausted, then dismissing them on ill-health grounds could be unfair dismissal. Tribunals often take the view that the whole idea of sick pay is to enable an employee to recover. There may be difficult cases when it is clear that an employee, very early on, is never going to recover and so not able to fulfil their part of the employment contract.

Another key consideration is the risk of disability discrimination. A ‘disability’ under the Equality Act 2010 is a mental or physical impairment which has a long term, substantial and adverse effect on their ability to carry out normal day to day activities. Long term means that it has lasted or is likely to last for at least 12 months. So, if the employee has already been away for 12 months then it is much more likely that they will be considered to have a disability. Whilst some conditions are automatically a disability such as cancer and other progressive illnesses. Other conditions which have been serious enough to keep an employee out of the workplace, is potentially going to be a disability.

Whilst the law does not require employers to continue to employ those who are unable to carry out the role they have been employed to do, if they have a disability then you will be expected to make reasonable adjustments to any part of their role which places them at a disadvantage compared to those without disabilities.

Finally, dismissing an employee on ill-health or capability grounds will likely be unfair (and potentially discriminatory) unless an employer has medical evidence to support their view the fact that the employee will be unable to return to work within a reasonable period, despite reasonable adjustments.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

As this week sees Valentine’s Day, what could be more sobering than a warning of the dangers of office affairs?

February 13, 2017 at 9:00 AM

Around one in five of married couples meet at work - if the evidence of divorce petitions are anything to go by, and with the increasing number of workplace affairs involving a colleague or client, the percentage of people who meet at work and have an affair is likely to be far greater than this.

An unexpected Valentine’s card from a colleague is bad enough but when workplace affairs go wrong, the fallout can be significant.

Cards and Letters for Valentine's Day

As pressure grows to spend more time at work, for some, the office becomes the focal point of their life and one of the main ways to meet people: working late in the office turning around documents; team drinks after work to celebrate the end of a deal; sending a flirty email...

Affairs at work are nothing new, yet they continue to cause headaches for HR. Those involving a senior and a junior member of staff can cause particular problems. The rumour-mill of truths and untruths around an affair can unsettle teams and departments, upset the dynamic, affect morale and productivity and leading to calls of favouritism and even discrimination.

Employers need to tread a fine line between protecting the business and interfering in an employee’s private life. Some businesses have policies and procedures to ban workplace relationships (the “anti-hanky-panky-policy”), though it is more common for employers to require relationships are declared to take appropriate action to avoid conflict or difficulties in line management from occurring. The danger with outright bans is that employees will often carry on in secret with the potential to do harm to the business.

A relationship that is out in the open is far easier to deal with - usually by ensuring the couple do not work together and minimising any risk of favouritism or discrimination.

The picture is more complex for ‘regulated’ professions, or where an individual has special responsibilities – like in the police, healthcare, education and banking. A dentist who had a long affair with a nurse was suspended by the General Dental Council for four months for conduct described as "unprofessional, inappropriate and not in the best interests of patients". The nurse was suspended for two months for selling her story to a magazine.

For many businesses the biggest threat is a harassment or discrimination claim. The best starting place is to cultivate an open atmosphere: where employees feel able to raise concerns and if the facts are known, the business will be better able to tackle any potential issue before it escalates.

Further, it is important not to forget that discrimination, harassment or victimisation might not just arise between the parties. There may be colleagues who disapprove of the relationship, whether through morals or jealousy and treat one or both of those involved differently as a result.

Relationships between colleagues are always going to happen and, unless permitted by law, outright bans are not usually the best way forward. A mature and consistent approach clearly communicated to all staff will be easier to negotiate and minimise the risk of a costly and time consuming tribunal claims when things go wrong.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Posted in: Blog

Tags: ,

Can temporary incapacity be a disability?

January 23, 2017 at 9:00 AM

It is well established law that for someone to be considered as disabled under the Equality Act 2010 their physical or mental impairment must have lasted or be likely to last 12 months. However, it is not always possible to identify how long an impairment might last, even though it is clear it will only be temporary in nature.

In the Spanish case of Daouidi v Bootes Plus SL the Europena Court of Justice (ECJ) considered exactly this point. Mr Daouidi had been dismissed from his job as a kitchen assistant for poor performance following a fall at work that had resulted in a dislocated elbow.

Elbow X-Ray

He brought a claim, which included disability discrimination - his elbow was in plaster and prognosis uncertain. The Spanish Court accepted he was dismissed because of his incapacity but asked the ECJ for guidance on whether the temporary incapacity could amount to a disability.

Although the ECJ found that a temporary incapacity for an indeterminate time does not in itself mean it is long term, it may be possible to establish a potential disability where there is no clear short-term prognosis. Whether or not that was the case would turn on the evidence available at the time.

This means that what might appear to be a fairly straightforward injury such as broken or dislocated bone carries the risk of a finding of a disability if the recovery is significantly prolonged. Depending on the circumstances employers may want to consider seeking medical advice before dismissing.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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