Employment and Immigration Law Update – Quick fire January 2020

Harassment in the workplace, the publication of the Modern Families Index and National Minimum Wage Compliance are all covered in this month’s quick fire.

EHRC: harassment in the workplace 

The Equality and Human Rights Commission (EHRC) has published new guidance: Sexual harassment and harassment at work.

The guidance sets out employers’ legal responsibilities and the practical steps they should take to prevent and respond to harassment and victimisation at work. It also provides advice for workers to help them understand the law and their employer’s obligations, including how employers should respond to a complaint of harassment.

The guidance explains the different forms that harassment and victimisation can take and reiterates that certain types of behaviour (including physical gestures, jokes and banter) can amount to harassment or sexual harassment, even if that was not how it was intended by the perpetrator. The guidance currently has no statutory force but it is likely to become a statutory code of practice in due course.

The EHRC suggests seven steps every employer should take to ensure they are doing everything possible to prevent and deal with sexual harassment in the workplace:

• develop an effective anti-harassment policy
• engage staff with regular one-to-ones and have an open door policy
• assess and mitigate risks in the workplace
• consider using a reporting system that allows workers to raise an issue anonymously or in name
• train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints
• act immediately when a harassment complaint is made
• treat harassment by a third-party just as seriously as that by a colleague.

In addition, the EHRC has written to all large employers, asking that they take preventative steps to safeguard their employees from sexual harassment.

Modern Families

The 2020 Modern Families Index has been published, reporting on how working parents balance work and family life in the UK.

According to the report, more than half (55%) of working parents now feel confident in discussing family-related issues with their employer, an increase from 47% in 2015. A similar number (53%) feel their manager cares about their work-life balance. However, the number of parents working flexibly has fallen to 55%, compared with 58% in 2015. The more senior the job, the more likely parents were to report working flexibly: 71% of senior managers or directors work flexibly compared to 48% of parents in junior level roles.

Of those with flexible working arrangements, over half (58%) are working additional unpaid hours with many saying that their workload has increased since working from home. According to the report, the rise in modern communications has made it difficult for working parents to ‘switch off’ from work, with negative impacts reported on children and relationships.

Recommendations in the report include the introduction of an additional, non-transferable entitlement to 12 weeks of leave and pay for new fathers and partners, encouraging childcare to be shared equally. 

The report also suggests that employers should be required to be transparent about their flexible working and parental leave and pay policies, with flexible working being the ‘norm’. This has already been the subject of a government consultation (response awaited).

National Minimum Wage compliance

The Resolution Foundation has recently published a new report into incentives for businesses to comply with the National Minimum/Living Wage.

The report, Under the Wage Floor, documents the penalties that firms are subject to, both in theory and in practice.  Research has suggested that rates of underpayment of the National Minimum and Living Wage are continuing to increase.

The report finds that in practice, both civil and criminal penalties are not fully imposed on employers, with penalties for 2017-2018 averaging 90% of the value of pay arrears. In 20 years, only 14 firms have been criminally prosecuted for minimum wage underpayment.

With the rise in minimum wage anticipated during the current parliament, rates of non-compliance are also expected to increase. The report therefore calls on the government to strengthen the current enforcement regime.

This article is from the January 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.