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28 July 2020

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

The Equality and Human Rights Commission (EHRC) has published guidance for employers on how to avoid discrimination in the workplace during the current crisis. This emphasises that even when making quick and difficult decisions, employers must not directly or indirectly discriminate against employees with protected characteristics under the Equality Act 2010, particularly female, disabled and older employees. The EHRC gives practical advice on how to avoid discrimination, such as involving employees in decision-making processes in a way which considers their protected characteristics; selecting individuals chosen for home working, reduced hours or furlough based only on business requirements; and setting up working arrangements in a way that does not disadvantage employees with protected characteristics.

Marking the 50th anniversary of equal pay law, Acas has published new guidance to help employers and employees understand the law around equal pay, which should be read in conjunction with the Equality and Human Rights Commission statutory code of practice. The guidance covers three main areas: an overview of the equal pay provisions of the Equality Act 2010, including an explanation of the difference between equal pay and the gender pay gap; preventing equal pay issues; and advice for employees who feel they are not getting equal pay. In order to minimise the risk of equal pay claims, Acas advises having an equal pay policy, up-to-date job descriptions that accurately reflect the work done, making sure men and women do not have different job titles where they do the same work, and ensuring consistency on pay and contractual terms. The equal pay policy should also explain how complaints will be dealt with.

Acas has published a guide dealing with grievance and disciplinary procedures during the coronavirus pandemic. This confirms that existing employment law and the usual Acas Code of Practice on Disciplinary and Grievance Procedures continue to apply. The guidance advises employers to consider whether it is fair and reasonable to carry on or start a disciplinary or grievance procedure while an employee is furloughed, following social distancing, or working from home. Given the stressful circumstances employees may be facing currently, employers should also consider their health and well-being. Acas suggests practical measures that employers can take if they do go ahead with a video meeting, such as ensuring that necessary evidence can be obtained from records kept in the office, witness statements can be seen clearly by everyone involved, interviews can be conducted fairly, and any necessary reasonable adjustments are made to allow anyone involved to use video technology. The guidance also confirms that the right to be accompanied at a disciplinary or grievance hearing still applies to a video meeting.

The Information Commissioner’s Office (ICO) has published a set of FAQs setting out the key data protection issues which must be addressed by employers before implementing any workplace testing procedures. Topics covered include advice on the lawful basis for testing; transparency in providing information to staff; exercise of data subject rights; security and confidentiality; demonstrating compliance and accountability; and data sharing and retention. The ICO confirms that as long as employers are not collecting or sharing unnecessary data, most of the data processing activities involved in workplace testing should be justified since they have a legitimate interest and legal obligation to ensure health and safety. However, what amounts to relevant and necessary data may alter as government guidance changes. The ICO stresses the need for transparency when using temperature checks and thermal cameras and reminds employers that any monitoring must be proportionate and necessary. Employers should also consider whether there are other less intrusive means that could be used. It is also important to note that failing to acknowledge changes in health could lead to unfair treatment, so testing data should be recorded on a system which employees can update confidentially and securely.

On 11 June 2020, regulations came into force introducing a temporary NICs and income tax exemption in respect of expenses reimbursed to employees for equipment purchased to enable homeworking, which would normally be taxable. The exemption is only available if the employee bought the equipment for the sole purpose of enabling them to work from home as a result of the coronavirus pandemic, and if the cost would have been tax exempt if provided directly by the employer. Private use of the reimbursed equipment should not be significant, and the exemption must also be available to all employees on similar terms. Although the regulations apply to reimbursements made during the 2020-2021 tax year, a discretionary exemption will apply for the period 16 March to 5 April 2020 when most homeworking will have started.

The Low Pay Commission (LPC) has published its third report on the nature and extent of underpayment of the National Minimum Wage. The report found that from 2018 to 2019, the amounts of underpayments fell slightly, but that more than 423,000 workers were still recorded as being underpaid. Underpayments vary significantly by occupation and the report focuses on the widespread practice of underpaying apprentices. Currently around one in five apprentices earn less than their legal entitlement and the LPC suggests this could stem from a lack of clarity around the requirement to pay apprentices for their training hours. The report makes several recommendations to government for improving the minimum wage enforcement regime, including better evaluation of data collected from non-compliance investigations; monitoring the effect of increasing the threshold for naming employers found to have underpaid workers (from £100 to £500); and reviewing the regulations on records that must be kept by employers.

Acas has published guidance for employers and employees on dealing with mental health during the pandemic. This reminds employers that they have a duty of care to support employees’ health, safety and well-being and should be in regular contact with staff to try and check on their mental health, remembering to approach any concerns sensitively and confidentially. Acas also suggests that employers might consider appointing a mental health ‘champion’ or setting up a mental health support group or mental health network with other businesses. Other options for improving mental health include workplace counselling, such as employee assistance programmes, or using a wellness action plan from the mental health charity, Mind.

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