Employment Law Update: Quick fire – August 2018
23 August 2018
Caste discrimination, independent review of modern slavery, Equality Act enforcement, sexual harassment in the workplace and gender pay gap reporting are covered in this month’s Employment Law Update Quick fire items.
The Government Equalities Office (GEO) has published its response to the consultation paper issued in March 2017, seeking views on whether legislation should be introduced under the Equality Act 2010 in order to protect against caste discrimination. Caste is not currently a protected characteristic under the Equality Act, although previous case law has suggested that caste could be protected to the extent it is bound up with ethnic origin.
The Government has decided to rely on emerging case law in this area, rather than extending the provisions of the Equality Act 2010 to include caste. It has committed to keeping the situation under review, but will not be making any legislative changes in the foreseeable future.
Independent review of modern slavery
An independent review of the Modern Slavery Act 2015 (MSA 2015) has been announced by the Home Office, following publication of a report estimating the economic and social costs of modern slavery in the UK as being up to £4.3bn a year.
The independent review will consider the operation and effectiveness of the MSA 2015, as well as identifying potential improvements. It will gather evidence and seek views from relevant stakeholders on how the Act is operating in practice, how effective it is and whether the legal framework is fit for purpose now and in the future. It will look, in particular, at the nature of modern slavery offences, the provisions around legal access and compensation to victims, and improving support given to child victims.
Currently, businesses with an annual turnover of £36m and above are required to publish a statement to outline what is being done to prevent and tackle modern slavery in its operations and supply chain. The review will consider whether more needs to be done to strengthen the existing provisions of the MSA 2015 and improve compliance.
The review is expected to be completed by the end of March 2019.
Equality Act enforcement
The Women and Equalities Committee has launched a new inquiry into the enforcement of the Equality Act 2010. It will collect evidence on the enforcement of the Act and the effectiveness of the Equality and Human Rights Commission in its enforcement. It is seeking evidence on how easy it is for the public to understand and enforce their statutory rights, on the effectiveness and accessibility of tribunals and other enforcement mechanisms, and on the effectiveness of remedies and penalties in discrimination cases.
The deadline for submissions is 5 October 2018.
Sexual harassment in the workplace
The Women and Equalities Committee has published a new report on sexual harassment in the workplace, with a five-point plan to address the issue.
The report calls for sexual harassment to be put at the top of the agenda by employers and regulators, with mandatory requirements, sanctions for breaches and proactive enforcement measures to be introduced. It suggests that employers are given a new statutory duty to take reasonable steps to protect workers from harassment and victimisation, alongside a statutory code of practice to set out how the duty will work.
The report also suggests that regulators should take a more active role in tackling sexual harassment and that the enforcement process should be improved to make it easier for individuals to raise concerns and to bring a claim in the employment tribunal. In particular, it suggests that the time limit for bringing a claim for sexual harassment should be increased to six months, punitive damages should be available and a discretionary uplift of 25% where there has been a breach of the statutory code. There should also be a presumption that the employer should be required to pay the claimant’s legal costs, if it loses a claim for sexual harassment.
In addition, the report calls for the use of non-disclosure agreements to be better controlled and regulated, including the use of standard, approved confidentiality clauses. This would have an impact on the use of settlement agreements in cases where sexual harassment is alleged.
Finally, the report suggests the collection of robust data on the incidence of sexual harassment in the workplace and how it was dealt with.
The Government has yet to publish any response to the Committee’s report and it remains to be seen whether any of these proposals will be taken forward.
Gender pay gap reporting
The Business, Energy and Industrial Strategy (BEIS) Committee has published a report on gender pay gap reporting, as part of its ongoing inquiry into aspects of executive pay and the gender pay gap in the private sector.
According to the report, the median gender pay gap is around 18% nationally, but in some organisations it’s up to 40%. The report makes a number of recommendations for strengthening gender pay gap reporting and for closing the gap. The recommendations include:
- extending reporting obligations to companies with 50 or more employees from 2020
- requiring a narrative explanation for pay disparity alongside an action plan to reduce the pay gap (this is currently encouraged, but not mandatory)
- including partner remuneration in pay gap reporting
- giving the Equalities and Human Rights Commission specific enforcement powers, with the ability to levy fines for non-compliance.
The Government has yet to publish any response to the Committee’s report.
In the meantime, the Government Equalities Office (GEO) has published new guidance, What Works with evidence-based practical recommendations on how to close the gender pay gap.
This article is from the August 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at August 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2018.