2015 Legal Round-Up30 December 2015
Equal Pay Update
23rd January 2015
Equal Pay Update – January 2015
Bonus season is approaching and some employees will inevitably get paid more than others. Sometimes there is a good reason, but what about if the reason is gender?
Since 1970, men and women have been entitled to equal pay for equal work (that is: like work, work rated as equivalent or work of equal value), unless the difference in the employee’s pay is due to a material factor which is not either directly, or indirectly discriminatory on grounds of sex. For example a difference in pay may be permitted where one employee is simply more experienced than the other, or works in a different geographical location.
Employees can bring claims in a Tribunal or in the civil courts relating to their unequal pay, seeking payment of sums they should have received had they been paid fairly. In some circumstances, they may also be able to bring claims for sex discrimination.
So far, so good. However 44 years after equal pay laws were brought in, the Office of National Statistics’ 2014 study showed that there was still a 9.4% pay gap between men and women, and that women earn an average of £209,976 less than men over a lifetime.
Many employees still do not know that they are being paid less than their opposite gender colleagues. This is despite the fact that the Equality Act 2010 makes pay secrecy clauses unenforceable, where the reason the employee wants to know about pay is to find out if there is (amongst other reasons) a link between their gender and their pay.
The Equality Act 2010 contained a section enabling the Government to pass laws which would require employers with more than 250 employees to publish their gender pay gap figures. The current Government has not yet made this law, but last month, Labour MP Sarah Champion put forward a Bill that would bring this into force. In December 2015, the Bill was backed by 258 MP’s with only 8 MP’s voting against it.
This brings the prospects of big companies being required to disclose their gender pay gap a step closer, so what should you do?
- Make sure that you have clear pay scales;
- Appraise employees at least annually so that they are aware of how their performance feeds into pay;
- Make sure that you can justify differences in pay; and
- Arrange for your staff to attend Equal Opportunities training.
What can we do?
We provide bespoke employment advice for both employers and senior employees on a wide range of employment issues, including unequal pay. We can also come to your offices to provide cost effective training to your staff, helping you to avoid claims. If you would like further advice on Equal Pay or you have another Employment law related matter that you would like to discuss, contact us on 0203 178 5360 or email us by clicking here.
NEWSFLASH: Are you ready for the share?
31st March 2015
Time for a brief reminder of the employment law issue about to hit you very soon: Additional Paternity Leave is being thrown out of the window but parents will be able to take Shared Parental Leave instead.
Shared Parental Leave can be taken by eligible parents of a) babies due to be born or; b) children placed for adoption, on or after 5 April 2015. This means that once a birth mother has taken 2 weeks of Compulsory Maternity Leave, the remaining 50 weeks of leave can be shared between the mother and her partner, who can take turns, or can take leave at the same time.
Parents will be eligible as long as they are both are currently employed/ self-employed or have worked in an employed or self-employed capacity in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the expected week of the baby’s birth and earning on average at least £30 a week based on any 13 of those week.
If an employee wants to take Shared Parental Leave, the eligible employee must notify their employer of their entitlement to, and intention to take, Shared Parental Leave. To share the leave, the mother must curtail her maternity leave and maternity pay and ‘share’ it with her partner. Employees can apply to take discontinuous periods of leave but employers can refuse this and instead require employees to take their leave as a single continuous block.
The Shared Parental Leave provisions are quite complex; but we are we are happy to deal with any queries that you may have about the new regime and to provide you with a policy for your Handbook.
What else happens on 5 April 2015?
- The maximum compensatory award for unfair dismissal increases to £78,335
- The maximum week’s wage for calculating redundancy payments increases to £475
- Statutory Maternity/Shared Parental pay increases to £139.58 per week
- Statutory Sick Pay increases to £88.45 per week
If you would like to chat to one of us about what this means for you or your business, please telephone us on 0203 178 5360 or email us by clicking here.
Whistleblowing in Mayfair
21st April 2015
Whistleblowing cases have frequently hit the headlines recently and often they involve the Financial Services Sector. Public Concern at Work, the whistleblowing charity, conducted a survey of whistleblowers within the financial services sector between 2007 and 2012. They found that whistleblowing in the financial services sector can be more challenging than in any other sector and that it was more likely that whistleblowers would be sacked. Public Concern at Work found that the concerns that whistleblowers raised often related to:
- Fraudulent / criminal activity;
- Miss-selling; and
- Breaches of legal or regulatory obligations.
Worryingly, they also found that most of the whistleblowers that they surveyed thought that nothing had been done to address their concerns.
Rather than make you trawl through the Financial Conduct Authority’s own guidance (useful though it may be) we have summarised what it means to be a whistleblower, and what protection whistleblowers have; as well as taking you through a surprising new case.
What type of disclosure is protected?
A whistleblowing disclosure is known as a ‘protected disclosure’. Not all disclosures are protected: to be protected, the worker or employee must reasonably believe that what they are saying is true and in addition, the disclosure must; firstly be in the public interest and; secondly the disclosure must be something that shows that:
- A criminal offence has been committed (or is likely to be committed);
- A person is failing or is likely to fail to comply with any legal obligation to which he/she is subject;
- That an individual’s health or safety has been, or is likely to be, endangered;
- That a miscarriage of justice has, or is likely to, occur; or
- That any of the above matters has been, or is likely to be concealed.
Whether or not a disclosure is in the public interest is a very important matter. For example, disclosures will not be protected if they just show that the whistleblower’s own contract has been breached, unless this is also in the public interest. A recent case highlights how this will be assessed, as set out below.
Who can you tell?
If you are an employee then the law will generally only protect you if you make the disclosure to your employer. However, the financial services industry is regulated by the Financial Conduct Authority and employees can make a disclosure (made in good faith) directly to the Financial Conduct Authority as it is a ‘prescribed person’.
In certain very limited circumstances an employee or worker will be protected if they disclose to people other than their employer or, for example, the FCA but do take advice first.
How is an employee or worker protected?
A worker or employee cannot be subjected to a detriment by an employer on the basis that they have made a protected disclosure. Similarly, if an employee or worker is dismissed because they made a protected disclosure, then they will be able to claim that their dismissal was automatically unfair.
A Recent Case – when is a disclosure in the public interest?
Chesterton Global Ltd (t/a Chestertons) and Ors v Mr M. Nurmohamed UKEAT/0335/14/DM: this case was about Mr Nurmohamed, who was a Director of the Mayfair office of Chestertons, the well-known estate agents. He made three disclosures about misstatements about the company’s costs and liabilities, which he said, affected the earnings of 100 senior managers, including himself. The Employment Tribunal said that the whistleblowing disclosures were protected, because Mr Nurmohamed had made the disclosures, reasonably believing that they were in the interest of the 100 senior managers, which was a sufficiently large group of the public to make the disclosure a public interest matter.
Chestertons did not like this result and they appealed, but lost. On appeal, the appeal court decided that the question of whether a whistleblowing disclosure was in the public interest or not was not a strictly objective question. Instead, the question was whether the person making the disclosure reasonably believed the whistleblowing disclosure to be in the public interest. It meant that Mr Nurmohamed’s whistleblowing disclosure was in the public interest, because he reasonably believed it to be, and it did not matter that the person that Mr Nurmohamed was most concerned about, was himself.
The moral of this tale is that it is going to be quite simple for employees and workers to show that their disclosures are in the public interest, even where this is not immediately obvious.
How can we help?
If you are an employee, we can give you guidance on how to whistleblow, who to tell and how to respond if an employer reacts negatively to the disclosure.
If you are an employer, we can help to encourage your staff to whistleblow internally rather than telling the FCA or the newspapers about their concerns, by implementing pragmatic internal whistleblowing policies and procedures. We always recommend that you tell whistleblowers what steps you are taking as a result of their disclosures as this ensures that the whistleblower feels valued and is less likely to report the matter externally.
If you would like to discuss this further, please contact us on 0203 178 5360 or email us by clicking here.