Employers have recently understandably been focusing on matters relating to the impact of coronavirus and the ongoing Government measures in this regard. However, the Law goes on and therefore we have set out below some other key developments and upcoming dates that employers ought to be aware of.
Gender pay gap reporting
All employers with 250 or more members of staff must report and publish gender pay gap data by 4 April 2021. This was originally due to take effect in 2020 but it was delayed due to coronavirus.
The reports published by private sector employers should focus on the data as at 5 April 2020 (the “snapshot” date). Members of staff that were furloughed are to be taken into account when considering whether or not there were 250 or more staff on the snapshot date. The report however should not include any employees that were not on full pay on the snapshot date. This means that those who were on furlough on the snapshot date whose salary was not topped up to 100% should not be included.
IR35 (off pay roll rules)
The IR35 will come into effect from 6 April 2021. This was also delayed from April 2020 as a result of coronavirus. The rules, in regard to the private sector, apply to businesses with a turnover of more than £10.2 million, with a balance sheet value of more than £5.1 million and with 50 or more employees. These businesses will be required to determine the tax status of their contractors and whether or not they would be deemed as an employee.
Incentive payment for hiring apprentices
Employers that hire apprentices between 1 August 2020 and 31 March 2021 can apply for an incentive of £2,000 for each of those apprentices aged between 16 and 24 and £1,500 for each of those apprentices aged 25 or over. The deadline for applying is 30 April 2021.
Pregnancy and Maternity (Redundancy) Protection Bill 2019-2021
This Bill proposes to extend protections for employees at risk at redundancy that are pregnant or have recently become a parent.
Currently, an employee on maternity, adoption or shared parental leave who is at risk of redundancy must be offered any suitable alternative role available. The Bill, which is expected to come into force at the end of 2021, proposes to extend this protection to employees who have informed their employer that they are pregnant or have returned from maternity, adoption or shared parental leave within the previous six months.
Is interim relief going to be introduced as a remedy in discrimination claims?
In the recent case of Steer v Stormsure Limited, the Claimant, who was claiming dismissal on grounds of sex, claimed that she should be entitled to apply for interim relief. The Employment Appeal Tribunal held in this case that it is a breach of article 14 of the European Convention on Human Rights (ECHR) for interim relief not to be available as a remedy to an employee who is dismissed for discriminatory reasons. As the Employment Appeal Tribunal does not have the power to declare our laws incompatible with the ECHR, the case will now be heard by the Court of Appeal.
If an application for interim relief is successful, it can provide immediate financial remedy for an employee that has been dismissed by way of the employer being required to pay the employee until the claim settles or the final hearing. This remedy is currently only available to employees dismissed for reasons in connection with whistleblowing or trade union activities.
The Court of Appeal’s decision in the near future could result in interim relief being available as a remedy in discrimination claims.
Government consultation on reforming or abolishing non-compete clauses
The Government’s consultation on measures to reform post-termination non-compete clauses in employment contracts is due to close on 26 February 2021.
Non-compete clauses aim to restrict employees from working for, or starting, a competing business, within a defined period and location after termination. Case law has established that such restrictions will only be enforceable if they are no wider than is reasonably necessary to protect the employer’s “legitimate business interests”.
The Government’s objective for the consultation is to support economic recovery from the impacts of coronavirus and to boost innovation. The consultation is focusing on whether:-
- to allow non-compete clauses to be enforceable only when the employer pays compensation (this approach is taken in several countries including Italy, France and Germany); or
- to ban non-compete clauses altogether (this approach is taken in Israel and California).
It could be suggested that banning non-compete clauses would actually undermine the Government’s objective. It may cause harm to the economy as a result of businesses being deterred from investing in innovation or new businesses if they do not feel protected.
There is no guarantee that the Government will make either of the proposed changes but, if it does, it is likely it would not be for some time.
Are you doing enough to prevent discrimination in your workplace?
It was recently held by the Employment Appeal Tribunal in the case of Allay (UK) Limited v Mr S Ghelan that the employer was not doing enough to prevent discriminatory behaviour in the workplace and was therefore liable for the discriminatory conduct and comments of its employees.
The Claimant’s claim was made in 2017. The employee alleged of the offending comments, along with managers that the Claimant alleged had not acted appropriately when made aware of the conduct, attended training provided by the employer in 2015. It appears that the training had some structure to it with the use of PowerPoint and examples of unacceptable behaviour and comments included.
The Tribunal and Employment Appeal Tribunal held that the employer had not taken all reasonable steps to prevent the behaviour of the perpetrator of making the discriminatory comments. It was found that the training was not effective and had become stale. The managers involved had not followed steps recommended by the training, such as by reporting the complaints to HR, and therefore this was evidence that the training was not effective.
Employers should therefore ask themselves if they are doing enough to prevent discrimination in the workplace. Employers should ensure that effective training is in place, is mandatory and is regularly reviewed and repeated (with improvements where necessary) on a regular basis.
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