Employment and Immigration Law Update – Quick fire July 2019

Sexual harassment in the workplace, the Gender Equality Roadmap, reducing ill health-related job loss and many more topics are covered in this month’s Quick fire.

Sexual harassment in the workplace

The government has published a new consultation on proposals to extend protection against sexual harassment in the workplace. This follows the launch of a gender equality roadmap by the Government Equalities Office, setting out various proposals to tackle key drivers of inequality which includes strengthening measures to prevent sexual harassment.

Under the Equality Act 2010, employers are already liable for acts of harassment carried out by any employees in the course of their employment, unless they can show they have taken ‘all reasonable steps’ to prevent it. Despite this, there is significant evidence to suggest that workplace sexual harassment remains widespread. The consultation considers how to ensure employers take adequate steps to prevent sexual harassment and how to further strengthen and enforce protections in the workplace.  

The sexual harassment consultation covers the following proposals:

• the introduction of a new statutory code of practice (which is already in progress) together with an information campaign for employers to increase employers’ prevention efforts
• a new mandatory duty on employers to take ‘all reasonable steps’ to prevent harassment of employees
• new protections against third party harassment (this was previously provided under s40 Equality Act 2010, until it was repealed in 2013)
• extending protection against harassment to volunteers and interns
• increasing time limits for bringing a discrimination claim (not limited to harassment) from three to six months.

Technical guidance on sexual harassment is in the process of being prepared by the Equality and Human Rights Commission (EHRC), which will form the basis of the new statutory Code of Practice. This will be published later this year and will be subject to a further consultation before it takes effect.

The consultation closes on 2 October 2019.

Gender Equality Roadmap

The Government Equalities Office (GEO) has launched a new gender equality roadmap to set out government proposals to tackle key drivers of inequality.

The roadmap covers:

• a new consultation on the effectiveness of workplace sexual harassment legislation, including a consideration of whether to extend the three-month time limit for bringing discrimination and harassment claims (this has now been published)
• technical guidance by the Equality and Human Rights Commission (EHRC) on harassment at work, to form the basis of a new statutory code of conduct
• review of the enforcement of equal pay legislation, to include whether mandatory equal pay audits could be appropriate and proportionate
• creation of a new collaborative taskforce to tackle pregnancy and maternity discrimination
• review of gender pay gap reporting and considering whether to revise the gender pay reporting legislation
• review of the current shared parental leave and pay scheme (due to be completed by the end of 2019)
• a consultation on a new right to carers’ leave
• action to reduce the private pensions gap.

The roadmap provides a summary of current government proposals relating to gender equality, although most of the proposals currently have no firm timescale for implementation and will be the subject of further consultation.

Off-payroll working in the private sector

The government has published draft legislation to implement changes to the rules on off-payroll working (IR35) in the private sector. These changes are due to take effect from 6 April 2020. Similar changes took place for off-payroll working in the public sector in April 2017.

The new rules will mean that medium and large organisations in the private and third sector will be responsible for assessing whether individuals who supply their services through an intermediary (such as a personal service company) should be treated as an employee for tax purposes.

Essentially it means that responsibility for operating off-payroll tax rules shifts from the intermediary (the PSC) to the hiring organisation. The changes will mean that:

• the fee payer (the party paying the worker’s PSC) is treated as an employer for the purposes of Income Tax and Class 1 National Insurance contributions
• the amount paid to the intermediary for the worker’s services is deemed to be a payment of employment income, or of earnings for Class 1 National Insurance contributions for that worker
• the fee payer is liable for secondary Class 1 National Insurance contributions and must deduct tax and National Insurance contributions from the payments they make to the worker’s intermediary
• the person deemed to be the employer for tax purposes is obliged to remit payments to HMRC and to send HMRC information about the payments using Real Time Information. 

In shifting responsibility for compliance with IR35 requirements, hirers of individuals providing their services through an intermediary will need to assess whether or not that individual meets the definition of an ‘employee’ for tax purposes. This is likely to present a significant burden for medium and large-sized organisations (small organisations are exempt from the new rules).

We will be looking at the implications of these changes, along with all key employment law developments, during our Birketts Employment Conference 2019 on 15 October 2019.

Labour market enforcement

As part of the government’s proposed reforms in its Good Work Plan, issued in December 2018 (see our previous bulletin), a new consultation has been published on proposals to introduce a single labour market enforcement body.  The intention is to bring together enforcement in relation to the national minimum wage, holiday payments for vulnerable workers, agency workers, labour exploitation and modern slavery, all under one enforcement body. The consultation will also consider whether the new body should have additional enforcement powers in relation to workplace discrimination, harassment and bullying, and whether the existing scheme for the enforcement of employment tribunal awards should be brought within its remit.

The government considers that a single enforcement body would provide workers with a strong and recognisable single brand, meaning that they know where to go for help and are better protected from exploitative practices. It will also provide better support for businesses who want to comply with the rules.

The consultation is open until 6 October 2019.

Reducing ill health-related job loss

The government has issued a new consultation on its proposals to reduce ill health-related job loss.
The consultation highlights the gap between the employment of disabled people compared with those who are non-disabled, and the importance of employer intervention to enable those with long-term health conditions to remain in work. It sets out various measures to address barriers faced by employers, particularly smaller and medium-sized enterprises (SMEs), in providing support to employees managing health conditions at work or returning from sickness absence.

Proposals in the consultation include:

• introducing a new right for employees to request work(place) modifications on health grounds, applicable to those who are not already covered by the employer’s duty to make reasonable adjustments in respect of disabled employees
• strengthening statutory guidance to support employers to take early, sustained and proportionate steps to support a sick employee to return to work
• reform of statutory sick pay (SSP) so that it is better enforced and more flexible in supporting employees. This would include allowing a returning employee to have a flexible, phased return to work without losing SSP and extending protection to those earning less than the Lower Earnings Limit (currently £118 per week) who do not currently qualify for SSP. A rebate of SSP for SMEs is being considered and the government will also consider whether enforcement of SSP should be included within the remit of the proposed single labour market enforcement body
• improving access to high quality, cost-effective occupational health (OH) services, including a consideration of ways to reduce the cost for SMEs though potential co-funding of OH services and proposals to tackle current shortages in the OH clinical workforce
• improving the provision of advice and information to support management of health in the workplace, and considering the possibility of employers automatically  reporting sickness absence through their payroll system to provide accurate data for targeted guidance.

The consultation is open until 7 October 2019.

Good Work Plan: one-sided flexibility

The government has published its latest consultation under the remit of its Good Work Plan, issued in December 2018 (see our previous bulletin).

The new consultation outlines proposals to improve conditions for flexible workers, following recommendations made by Matthew Taylor in his 2017 Review of Modern Working Practices that the Low Pay Commission should examine the issue of ‘one-sided flexibility’. The Low Pay Commission reported that the hours of nearly 40% of all UK workers varied from week to week, and approximately 1.7 million individuals were very anxious that their working hours could change unexpectedly. 

Proposals in the consultation paper include:

• a new entitlement to a reasonable period of notice for allocated shifts
• additional protections for individuals who are penalised if they do not accept last-minute shifts
• compensation at an appropriate rate for workers when shifts are cancelled or curtailed without reasonable notice. 

The consultation also confirms that the government will be taking forward the Low Pay Commission’s recommendation to introduce a new statutory right for workers to switch to a “more predictable and stable contract” which reflects the normal hours worked. This will be the subject of a separate consultation.

The consultation closes on 11 October 2019.

These articles are from the July 2019 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. Law covered as at June 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.