211: And finally a look forward to what’s happening in employment news for January 2020

The Office for National Statistics (ONS) has released its latest data on differences in pay between women and men by age, region, full-time and part-time work, and occupation. These statistics are compiled from the Annual Survey of Hours and Earnings which samples from all employee jobs in all sizes of company. It is therefore distinct from the gender pay gap data based on compulsory reporting for companies with 250 or more employees.  The ONS reports that the gender pay gap among full-time employees rose marginally from 8.6% in 2018 to 8.9% in 2019, which represents a decline of only 0.6% since 2012.  The gender pay gap among all employees fell from 17.8% in 2018 to 17.3% in 2019, and continues to decline. For age groups under 40 years, the gender pay gap for full-time employees is now close to zero, and among 40 to 49 year olds the gap (currently 11.4%) has decreased substantially over time.  This is in contrast to the figures for the over 50s, which is 15% and not declining strongly.

The Charity Commission has published its report on the whistleblowing disclosures it received from workers in the charity sector between 1 April 2018 and 31 March 2019. This states that it received 185 whistleblowing disclosures, compared to 101 in the previous year. Most related to safeguarding issues, whereas in previous years most related to governance issues. 97.8% of disclosures were identified as potentially needing some regulatory action due to the nature and level of risk reported. In a significant policy change, the Charity Commission also reports that it has begun to treat charity volunteers, as well as charity workers, as whistleblowers. Unlike workers, volunteers do not have any statutory protections. However, the Commission notes that they face many of the same personal challenges and risks experienced by workers and therefore need the same sort of regulatory engagement.

The Government has published its ‘2019 UK Annual Report on Modern Slavery’. This states that there was a 49% increase in recorded offences of modern slavery in 2018, although fewer slavery offences were prosecuted (444 in 2017 compared with 377 in 2018). The report also confirms that the Home Office intends to create a free online central reporting service for modern slavery statements, which will make it easier for consumers, NGOs and investors to identify and scrutinise statements. New tools and guidance have already been introduced to support public sector procurement professionals in tackling modern slavery in government supply chains, and both the government and individual departments will be required to publish their own modern slavery statements. The government estimates that around 75% of in-scope organisations have published a modern slavery statement and warns that persistent non-compliance may result in being publicly named.

From 6 April 2020, new legislation will extend off-payroll working rules to the private sector. At present, contractors are responsible for determining their employment status and are liable for all tax if HMRC deems that they have reached the wrong conclusion. Under the new rules, the end client will have to assess a contractor’s status, and the party above the contractor in the supply chain will take on the tax risk. Inevitably, the changes are resulting in review and renegotiation of many contractual arrangements. This includes several large employers, including Barclays Bank, HSBC and Lloyds TSB, which have recently reported that they have decided to stop using off-payroll contractors providing services through limited companies and to shift all of their contractors onto the PAYE system.

The Equalities and Human Rights Commission (EHRC) has published non-statutory guidance on the use of confidentiality agreements in discrimination cases. This sets out good practice for employers and clarifies the law on the enforceability and legality of these agreements. The EHRC aims to ensure that workers are not prevented from speaking out about any form of discrimination. Its guidance states that a worker should not be put under any pressure to sign a confidentiality agreement and that it would not be enforceable if signed under duress. Workers should also be encouraged to take independent legal advice. The guidance emphasises that workers should always be permitted to have discussions with the police, regulators, lawyers and medical professionals who are bound by an obligation of confidentiality, immediate family members and potential future employers where necessary. Ideally, large employers should keep a central record of confidentiality agreements so that potential systemic discrimination issues can be monitored. Employers should also still investigate the allegations where possible, take any reasonable further steps to address the discrimination, and take reasonable steps to prevent discrimination occurring again in future. The government has indicated that it is committed to bringing in new legislation on the use of non-disclosure agreements in harassment and discrimination cases, and the EHRC’s guidance may need to be revised if and when new requirements come into force.

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