This month’s Employment update covers:
1. Gender pay gap data- “dodgy data” to be reviewed
2.Tesco £4bn equal pay claim
3. New ACAS guidance on overtime
4. National Minimum Wage & “Sleep ins” in Care Industry
5. Brexit update
- An employer must comply with the regulations for any year where they have a ‘headcount’ of 250 or more employees on 5 April (where the private and voluntary sector regulations apply) and 31 March (where the public sector regulations apply).
- There are six calculations to carry out, and the results must be published on the employer’s website and a government website within 12 months. Where applicable, they must be confirmed by an appropriate person, such as a chief executive.
- An employer must publish 6 calculations showing their:– average gender pay gap as a mean average
– average gender pay gap as a median average
– average bonus gender pay gap as a mean average
– average bonus gender pay gap as a median average
– proportion of males receiving a bonus payment and proportion of females receiving a bonus payment
– proportion of males and females when divided into four groups ordered from lowest to highest pay.
Since the first gender pay gap reporting deadline on 5 April 2018 over 10,000 organisations have published their data. However, independent statisticians have estimated that between 9-17% of this data is wrong.
The Equality and Human Rights Commission (EHRC) is writing to 20 employers over their data as the inquiry continues over “dodgy data”. These employers are being asked to correct or justify their data or risk facing unlimited fines.
Note to Employers: It is clear that employers are not taking the Gender Pay Gap Regulations seriously and that the EHRC is starting to crack down on those companies who fail to comply or comply but publish inaccurate data.
Further to the 100 claims filed by the law firm Leigh Day in February of this year against Tesco, an additional 900 claims have now been issued in a legal battle to secure equal pay.
The claims brought by the workers could lead to the supermarket paying out £4bn, as the shop floor workers claim they earn £3 less than male Tesco warehouse. This could lead to up to £20,000 per worker in back pay over six years being paid out for up to 200,000 shop-floor staff.
The Tesco case follows similar actions against Asda and Sainsbury’s, which are working their way through the employment tribunal process.
Note to Employers: Employers should be aware of equal pay legislation when setting pay structures, which not only provides for equal pay for men and women doing the “same job” but also covers “like work”, “work rated as equivalent” and “work of equal value”.
ACAS has produced new Guidance on Overtime.
– the different types of overtime
– working time limits on overtime
– payment for overtime
– overtime for part-time workers
– the impact of overtime on holiday calculations
Please find the full guidance here: Overtime
The law surrounding this area has been uncertain for several years namely, are carers who sleep at a client’s home entitled to the minimum wage while they are asleep?
The Court of Appeal in MenCap v Tomlinson-Blake overturned the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”) decisions and that that carers are not entitled to National Minimum Wage (“NMW”). The ruling was based on the premise that “sleep in hours” would only be counted for minimum wage purposes where the worker was awake for the purpose of performing some specific activity.
Tomlinson-Blake received a flat rate of £22.35 plus one hour’s pay of £6.70 for a 9 hour overnight shift. She did not have to be awake for the duration of this time but was required to keep her “listening ear” on so that she was able to respond if required.
The judgment could have cost the care sector £400m in back pay to staff which in turn could have led to some of the organisations going bankrupt.
Note to Employers: The Court of Appeal’s decision will be widely welcomed by employers in the care sector, as well as all other sectors which utilise night shift workers who are required to sleep on-site. It is very possible that this decision will be appealed however by the carers.
On 12 July 2018 the Government published ‘The Future Relationship between the United Kingdom and the European Union‘. The White Paper commends how the UK already exceeded the EU minimum standards in areas such as parental leave and flexible working arrangements and is the leader in many other areas. Given the strong record, at paragraph 123, it proposes that there be no regression in employment laws.
It was anticipated that post Brexit the three areas of Employment law in which changes would have to be made would be:
- relaxing TUPE terms and conditions;
- relaxing collective consultation requirements in redundancy situations; and
- most of the Working Time Regulations.
However, it the White Paper seems to suggest that there will be no changes made in the event a Brexit deal is reached at all.
You can find the full White Paper here: The Future Relationship between the United Kingdom and the European Union
If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.