In the news: November 2016

Refusal to allow rest breaks will be a failure on behalf of the employer, regardless of whether a request was made

The EAT has ruled that employers have a duty to give a worker the right to rest regardless, of whether they’ve requested it (Grange v Abellio London).

The EAT considered whether for a denial of rest breaks could arise – even if no request had been made. They considered this regardless of whether the employer had refused, denied or rejected such a request.
On appeal, the EAT held that an employer has a positive obligation to give workers the entitlement to rest breaks. If working arrangements are not put in place allowing employees to take such breaks, this could constitute a refusal. While workers can’t be forced to take rest breaks; employers need to proactively ensure that working arrangements allow for them to if they wish.

The outcome of this case is not yet conclusive. The EAT concluded that the Employment Tribunal erred in its approach. It has been remitted back to the Employment Tribunal to decide whether there was a failure by Abellio to deny Grange his rest breaks on three separate occasions.


How will the ‘Gay Cake’ affect the cause of equality?

The question of whether discrimination arises from the ‘gay cake’ case is still rumbling on. However, the Court of Appeal have held that there has been associative discrimination because of the bakery’s refusal to bake a cake captioned “Support Gay Marriage”.

The Court has highlighted that it is important to look beyond how this case has been presented as one of “gay rights” versus “religious rights”. Instead, we should consider the much more detailed legal point of associative discrimination. The Court of Appeal held that the bakery would not have refused to create a cake labelled “Support Traditional Marriage” or even “Support Marriage”. The order had been cancelled because the bakery “would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation … this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”.

Northern Ireland’s Attorney General, John Larkin, has now requested the Supreme Court review the decisions of both the High Court and Court of Appeal. Belfast judges are considering whether the case meets the relevant criteria for referral.


Gender Pay Gap reporting appears to be having a positive impact

There has been the largest year-on-year drop, since 2010, in the gender pay gap according to data published by the Office for National Statistics. There has been a fall from 2015 to 2016 of 1.2%, falling from a 19.3% to 18.1% gap.

While there is still an 18.1% pay gap between the average hourly earnings of men and women,this is certainly movement in the right direction.

The publication of the final draft regulations of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 – which will set out what employers are required to report – has been delayed. They are now likely to come into force in April 2017, meaning that the first gender pay gap reports will be due by April 2018.

The developments of the gender pay gap reporting is particularly important for employers with more than 250 employees. Practically speaking, it would be useful at this stage for these employers to prepare a gender pay gap report using the recent year’s data in preparation, as April 2018 will creep up very quickly.

If you require advice or assistance with preparing for gender pay gap reporting, click here to find out how we can help.


Consultation on the employer’s role in keeping disabled people at work

The disability gap shows that less than half of disabled people in the UK are employed – in comparison to 80% of the non-disabled population. Following a consultation, consideration must be given to ensuring more disabled people “enjoy the independent, security and good health that being in work can bring”.

Employers should be required to do more to support the employment of disabled people. While it is unclear at this stage what action the Government might take following the consultation, employers could be under increased obligations to actively encourage and incentivise recruitment and retention of disabled people in employment.

Responders to the consultation on the disability gap are expected to comment on how employers may be encouraged to recruit and retain disabled people, and actively support and nurture health and wellbeing at work.

The consultation can be found and responded to here.


ACAS publishes guidance on dealing with marriage and civil partnerships discrimination in the workplace

The intention of the guidance is to provide an overview on how discrimination can occur in the workplace in relation to marriage and civil partners, how it can be dealt with, and how to reduce the chance of discrimination arising.

The Equality Act 2010 protects employees from discrimination on the grounds of marriage and civil partnership, one of the protected characteristics covered by the Act.

The guidance identifies the key areas of employment where marriage and civil partnership discrimination can occur. These include recruitment, pay and terms and conditions, promotion, training opportunities, dismissal, and selection for redundancy. The guidance sets out how discrimination in these areas may be avoided as well as setting out how complaints should be raised and responded to

A copy of the guidance can be found here.


Call for a ban on unpaid internships because of National Minimum Wage (Workplace Internships) Bill 2016-2017

This Private Members’ Bill calls for a ban to be introduced on unpaid internships, and for the National Minimum Wage Act 1998 to be applied to workplace internships.

Discussion around the ban on unpaid internships has arisen following debate that internships do not offer equal opportunities to all young people. This is because workplace internships that are offered on an unpaid basis favour people who have independent means of financial support.

The Bill was first considered in June 2016, and had its second reading on 4 November 2016. The Bill will be debated again in February 2017.

It is thought that, because of the proposed Bill, the provisions of the National Minimum Wage Act 1998 will not apply to:

• those in higher education that are required to undertake work placement as part of their course
• anyone of compulsory school age
• anyone undertaking an approved English apprenticeship.

Further details on how and when this Bill will be implemented and how this is likely to impact employers in the future are likely to be available in February 2017.


Further updates to the Immigration Rules

The Immigration Rules were again amended with effect from 24 November 2016 as follows:

• The Tier 2 (General) minimum salary threshold for experienced workers has increased to £25,000 (with a further increase to £30,000 expected in April 2017).
• Tier 2 (Intra Company Transfer) minimum salary for short-term staff has increased to £30,000, while the minimum salary for graduate trainees was reduced to £23,000 and the number of places a sponsor can use has increased from five to 20 a year.
• The Tier 2 (Intra Company Transfer) skills transfer sub-category has closed to new applicants.
A skills surcharge of £1,000 per year per sponsored employee is due to come into effect from April 2017. Additionally, at some point employees sponsored via Tier 2 (Intra Company Transfer) will be subject to the immigration health surcharge although the Home Office has not yet confirmed when this will be.