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14 September 2020

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

The government has launched an open consultation on how employers can provide better support in the workplace for victims of domestic abuse, whether this is as an outlet for reporting abuse, financial assistance or a source of emotional support. As part of this review, the government is seeking evidence on various questions including the practical circumstances arising in relation to domestic abuse and work; the support which can be offered; what is possible with the existing framework; what current best practice looks like; and what more can be done. The review will include a series of roundtable discussions run by the Department of Business, Energy and Industrial Strategy and the Home Office, alongside other interested parties. The consultation closes on 9 September 2020.

The Social Mobility Commission, an independent advisory public body, has published a report on apprenticeships and social mobility which reveals that most of the benefits of apprenticeships are going to more privileged learners, and that the number of workers from disadvantaged backgrounds has dropped by more than a third since the apprenticeship levy was introduced. The report also notes that apprenticeships are one of the most effective means of boosting social mobility for workers from poorer backgrounds. However, on average, apprentices from disadvantaged backgrounds earn less than apprentices from more privileged backgrounds. Most disadvantaged apprenticeship starters come from three regions: north-west England, the West Midlands, and London. The report’s authors also note that the pandemic is likely to have made the disadvantaged gap worse, and that the government should consider the impact of the apprenticeship levy on social mobility outcomes as a matter of urgency.

The Information Commissioner’s Office (ICO) has published further guidance for employers focussing on the collection of personal information as lockdown restrictions ease and businesses reopen. This stresses that data protection laws do not prevent employers from asking employees whether they are experiencing any COVID-19 symptoms or introducing appropriate testing, as long as the principles of transparency, fairness and proportionality are applied. The ICO sets out the key data protection steps which employers must consider: only collect and use health data which is necessary to keep staff safe and to implement measures appropriately and effectively; tell staff how and why their personal information is to be used; ensure any decisions based on health information do not lead to detriment or discrimination; hold data securely and only for as long as necessary; and inform individuals about their information rights. Additional requirements will apply where symptom checking or testing are introduced, including carrying out a data protection impact assessment for large scale processing.

The House of Lords Constitution Committee has announced a call for evidence on the response of courts and tribunals to the COVID-19 pandemic and the resulting impact on the future of the justice system. The Committee asked for written submissions from any interested parties by 20 August 2020 on any aspects of this topic and on various specific issues. These included the types of cases that are not making progress; the effectiveness of virtual court and tribunal proceedings and their impact on litigants, lawyers and the public; and the implications of virtual proceedings for access to justice, transparency and media reporting.

The list of FAQs arising out of the pandemic which was published on 7 April 2020 by the Presidents of the Employment Tribunal in England, Wales and Scotland has been updated. The FAQs now include a road map indicating how cases will be listed between June and December 2020. This defines three types of claim: ‘short track’, claims for unpaid money such as wages or holiday pay; ‘standard track’, claims for unfair dismissal; and ‘open track’, more complex claims such as discrimination or whistleblowing. Subject to social distancing measures, it was expected that during July and August, more standard track claims would be heard remotely, with priority given to those which lost their hearing date due to COVID-19; and there would be some in-person hearings mainly for short track claims. In September and October, more open track claims will be heard remotely. November and December will be a period of consolidation as users and staff increase their familiarity with remote hearing technology. The FAQs stress that the Presidents wish to maximise the number of hearings that can take place remotely, although objections will be considered. Guidance on how judges will determine if a remote hearing is appropriate is promised.

Protect, the whistleblowing charity, has published its second report into whistleblowing in the financial services sector (Silence in the City 2). This focuses in particular on the impact of new rules implemented in 2016 by financial regulators which required the appointment of a whistleblowers’ champion, internal whistleblowing arrangements handling all types of disclosures, and presentation of an annual report on whistleblowing to the board. The report notes that there has been an increase in the number of whistleblowers using internal channels (from 78% to 93%), and an increasing likelihood of whistleblowers raising their concerns a second time (from 48% to 71%). However, Protect also notes a number of continuing concerns. For example, 78% of whistleblowers reported that their concerns related to recurring matters rather than one-off events; 70% reported that they were victimised or dismissed, or felt resignation was the only option; and 33% of concerns were reportedly ignored. The report also reveals that discrimination and harassment complaints are amongst the top six concerns. In light of these findings, Protect recommends amending the whistleblowing legislation to create a positive duty on employers to prevent victimisation, rather than leaving it to whistleblowers to bring a Tribunal claim.

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