Employment Law Update – Quick fire November 2018
27 November 2018
Parental bereavement leave, tribunal fees to be reintroduced?, Acas: performance management, GEO summary of gender pay gap, annual report on modern slavery and non-disclosure agreements are all covered in this month’s Quick fire.
Parental bereavement leave
The Government has published a response to its consultation on parental bereavement leave and pay.
The new right was created under the Parental Bereavement (Leave and Pay) Act 2018, which received Royal Assent on 13 September 2018. Details of the eligibility requirements and the practical arrangements for taking the leave will be set out in separate regulations, which are not yet published.
The Government proposes adopting a broad definition of a bereaved parent for the purposes of the leave entitlement. It will include all legal parents as well as those who have a parental relationship with the child that is not recognised in law.
Leave will be available to be taken either as a single block of two weeks, or as two separate weeks. For leave taken at the time of the child’s death no formal notice will be required, but employees will need to give at least one week’s notice if they elect to take leave at a later date. A declaration from the employee to confirm their entitlement to be paid statutory bereavement pay will be required, but a declaration will not be required in respect of the leave itself (one may be requested by the employer).
Draft regulations will be published in due course, with the new right due to take effect in 2020.
Tribunal fees to be reintroduced?
In answering questions before the House of Commons Justice Committee on 6 November 2018, Richard Heaton, permanent secretary at the Ministry of Justice, has confirmed that the Government is working on reintroducing fees for individuals seeking to pursue claims in the employment tribunal.
The Supreme Court decision in the UNISON case last year found the previous fee system to be unlawful, but it does not prevent the introduction of an alternative fee scheme provided it does not restrict access to justice. Mr Heaton stated that while there are no immediate plans to reintroduce fees, they are seeking a progressive scheme that still allows those who are unable to pay to pursue their claim.
Acas: performance management
Acas has published new advice for employers on conducting performance management procedures. The advice follows research which showed that only one in four employers adapted their performance management systems for staff with disabilities or special needs. Only one in ten used their systems for planning and monitoring employee training and development. The advice includes some tips for employers on how to treat staff fairly, including avoiding surprises by not waiting to raise concerns at an end of year performance review.
The advice is available on the Acas website.
GEO summary of gender pay gap
The Government Equalities Office (GEO) has published a summary of the 2017/18 gender pay gap data.
The summary states that 100% of identified organisations complied with the duty to report gender pay gap data (94% by the deadline). Of the gender pay gaps reported, 77% of the median and 88% of the mean pay gaps were positive, meaning that women were paid at a lower rate than men in a high majority of organisations.
Among the lowest paid employees, 57% of employers have more women than men and among the highest paid employees, only 33% have more women.
According to the summary, 35% of employers found it ‘difficult’ or ‘very difficult’ to gather the data required to make the necessary pay calculations, but only 17% to do the actual calculations. As of May 2018, 48% of in-scope employers had published an action plan outlining how they intend to tackle their gender pay gap.
Alongside the summary, the Government has also published an Interim Gender Pay Gap Employer Insights Survey, which was designed to provide an update on understanding, attitudes and progress among private sector employers in the period December 2017 to January 2018. The findings of the survey were used by the GEO to drive reporting in the final weeks before the initial deadline. It includes information about employer attitudes and approaches towards reducing the gender pay gap.
Annual report on modern slavery
The Home Office has published its 2018 UK Annual Report on Modern Slavery. The report sets out the actions taken by the UK Government, Scottish Parliament and the Northern Ireland executive to tackle modern slavery and human trafficking over the previous 12 months.
According to the report, 3,337 modern slavery offences were recorded by the police in England and Wales in the period to March 2018, a 49% increase on the previous year.
The Home Office has stated that it is writing directly to the chief executives of 17,000 businesses to encourage them to be transparent about modern slavery in their supply chains, or risk being named as breaching the law. Businesses with a turnover of more than £36m are required to publish annual transparency statements, setting out what they are doing to prevent modern slavery within their business and supply chains. It is currently estimated that only 60% of companies in scope have published a statement.
The Women and Equalities Select Committee has launched a new inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases.
The Committee’s recent inquiry into sexual harassment in the workplace made recommendations that the government should address the unethical use of NDAs. This latest inquiry has a wider remit to look at the wider use of NDAs in cases where any form of harassment or other discrimination is alleged.
Written submissions are invited by 28 November 2018. The Committee will consider a range of issues including whether the use of NDAs should be banned or restricted in harassment and discrimination cases and what safeguards are needed to prevent misuse. It will also look at the quality and independence of legal advice available to employees when negotiating severance agreements, given that this advice is paid for by the employer. Respondents are also asked to consider the role of internal grievance procedures, transparency obligations for employers and the role of boards and directors.
Non-disclosure clauses are frequently included as a standard provision in settlement agreements, and the use of such clauses may need to be reviewed in the future depending on the outcome of the Committee’s inquiry and any subsequent legislative measures.
This article is from the November 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 November 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 November 2018.