Tue 04 Aug 2020

What is happening in employment law? (August 2020)

We look at what is happening in employment law away from the COVID-19 pandemic.

The UK Government's response to the consultation on the plans to cap public sector exit payments at £95,000 has been published along with the draft Restriction of Public Sector Exit Payment Regulations 2020 which, once in force, will implement the cap.  The proposal to implement this in stages has been dropped with the regulations now applying across all of the public sector when implemented.  Payments made in respect of injury to feelings will be exempt from the cap and the mandatory waiver for discrimination and whistleblowing claims is to be extended to include health and safety related detriment and dismissal claims.  The regulations only cover Scottish public bodies where employer terms are subject to UK Government approval.  The Scottish Government has already introduced a £95,000 cap on exit payments made by devolved bodies by updating the Scottish Public Finance Manual.

BEIS has published a survey of employment tribunal applications made in 2018 - the sixth such survey since 1987.  The survey aims to obtain information on the characteristics of employment tribunal claimants and employers, assess the costs of taking cases to tribunal for both parties and to monitor the performance of the employment tribunal claim process.  The documents makes for interesting reading.  Some points of interest include:

  • Claimants were more likely to succeed if they were represented.
  • The median settlement amount for a claim has doubled since the previous survey (2013) from £2,500 to £5,000.  Over the same period the median tribunal award has increased from £3,000 to £5,000.
  • The private sector accounted for 70% of tribunal cases, the public sector for 17% and the non-profit sector for 12%.
  • Claimants had an older age profile compared to the workforce as a whole.
  • Over half of cases in 2017 were settled. Of those that proceeded to hearing, claimants were more likely to be unsuccessful than successful.

ACAS published its annual report and accounts in July showing a 50% increase in calls to the helpline during lockdown, with a total of 800,000 calls during the 2019/20 reporting period.  During the same time frame ACAS received nearly 140,000 early conciliation notifications, up 5% on the previous year.  Over three quarters of the notifications did not lead to an employment tribunal claim either because of settlement or the claimant deciding not to proceed.

Figures published by the Higher Education Statistics Agency have highlighted that the gender pay gap in favour of men begins as soon as students leave university.  Within 15 months of leaving university the figures show that men had already begun earning on average 10% more than women.  Even where graduates had similar qualifications the disparity remained wide.  The figures also show that black graduates are more likely to struggle in the labour market.  Only 3% of white graduates were still unemployed 15 months after leaving, while 6% of black graduates and 7% of Asian graduates were unemployed.  Figures in a report by Business in the Community confirmed that inequality in career progression remains a problem with black employees holding only 1.5% of senior roles.  This is only a 0.1% increase since 2014.

While attempts to improve the gender pay gap seem to be floundering, a study by The Resolution Foundation show that the disparity between men and women when it comes to working hours per week has all but disappeared.  The study revealed women now work 50 hours a week while men work 51 hours a week.  Women still do more unpaid work than men although both genders have less leisure time compared to 45 years ago due to an increase in unpaid work such as childcare.A recent Women Count 2020 report which tracks the number of women on executive committees and main boards in FTSE 350 companies has found that on 17 April 2020 there were more CEOs named Peter than there were female CEOs in total.  Chief Financial Officer was also highlighted as another role that women were not being employed in.  This was despite the fact that FTSE 350 companies which have executive committees with female membership of more than 33% have a net profit margin over 10 times greater than those companies with no women at this level. 

The criminal record checks regime in Scotland had been overhauled.  The Disclosure (Scotland) Act 2020, which will be brought into force by regulations, will:-

  • Reduce the number of disclosures from four to two.  Basic disclosures are to be replaced by Level 1 disclosures, with Level 2 disclosures replacing both standard and enhanced disclosures as well as the Protecting Vulnerable Groups ("PVG") Scheme records.
  • PVG Scheme membership will be mandatory for those working with children and vulnerable adults in regulated roles. 
  • The process for removal of Level 2 disclosures is to be reformed.
  • Automatic disclosure of convictions accrued between the ages of 12 and 17 will cease.

Disclosure Scotland administer the criminal record checks scheme as well as the Protecting Vulnerable Groups Scheme in Scotland.

Finally, Olympic medallist Jess Varnish's high profile appeal to the EAT on employment status has been unsuccessful.  The EAT held that the employment tribunal were entitled to conclude that she was neither an employee nor a worker of the British Cycling Federation ("BCF").  The employment tribunal had found that Miss Varnish was not provided with remuneration in exchange for work.  She was selected by BCF for the Olympic Podium Programme, they did not provide her with work.  Miss Varnish did not provide services to BCF - the organisation provided support in the form of coaching, clothing and equipment, travel expenses and access to facilities.  Any money she received came from UK Sport, a separate body, in the form of a non-repayable grant based on her future potential.  The training she undertook did not amount to personal performance of work or services for BCF and she was neither a worker nor an employee of the organisation.


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