338: What’s coming up in employment law?

Government concludes consultation on mandatory vaccines for health and care workers

The Department of Health and Social Care (DHSC) has recently completed a consultation on whether COVID-19 and flu vaccinations should be mandatory for all health and care settings. Any new statutory requirement would apply to frontline health and care workers in face-to-face contact with patients in CQC-regulated activities and would mean that only workers who are vaccinated against COVID-19, and flu if this is included, or who have a legitimate medical exemption, will be able to deliver those services. The DHSC has previously stated that there is a clear case for extending the policy beyond care homes.

Care home workers challenge mandatory vaccine legislation

It has been reported that two care home workers have issued judicial review proceedings challenging the Government’s legislation on mandatory vaccination for CQC-registered adult care homes, which came into force on 11 November 2021. The regulations are being challenged on the basis that they are irrational, unnecessary, disproportionate and interfere with the public’s right to ‘bodily integrity’; are incompatible with laws prohibiting the enforcement of mandatory vaccines; disproportionately impact women, black and Caribbean workers in breach of the European Convention on Human Rights; and will lead to shortages in both frontline and non-frontline care workers. It is also argued that the government failed to consider the efficacy of alternatives to mandatory vaccination, the vaccination rate of care home staff or the impact of natural immunity. The judicial review claim was filed in court on 9 September, but an early hearing date has been requested in light of the 11 November implementation date for the new regulations.

New EHRC gender inequality guidance for employers

The Chartered Management Institute has partnered with the Equality and Human Rights Commission (EHRC) to create new guidance for employers on how to address gender inequality. This includes case studies and practical suggestions such as anonymising CVs and application forms; advertising all jobs as open to flexible working from day one; and actively promoting shared parental leave. Employers have had a six months extension on the usual April deadline in which to report their 2020-2021 gender pay gap data. However, Government figures indicate that only 77% of employers required to file reports had done so by the extended deadline of 5 October 2021. The EHRC has reminded employers of its enforcement powers and of the need to prioritise gender pay gap issues despite the pressures of the pandemic.

CIPD survey on changes to employee contracts during COVID-19

A CIPD survey of 2000 employers has revealed that 22% of employers made changes to employees’ terms and conditions of employment between March 2020 and July 2021. The most common changes were to location of work (49%), followed by hours of work (47%), pay levels (44%), redundancy terms (22%) and access to enhanced contractual entitlements or incentives (20%). Not all of these changes were negative. For example, 50% of employers improved pay and 24% of employers increased working hours. The survey also found that 19% of the 2000 employers changed terms and conditions through consultation, negotiation and voluntary agreement, and 3% did so by dismissing staff and rehiring them on new terms (also known as ‘fire and rehire’), a tactic which is coming under criticism from unions, MPs and workers. The CIPD warns that fire and rehire should only be used as a last resort, given the significant risks in terms of claims, reputational impact and employee relations.

Government to publish ethnicity pay gap consultation responses by the end of the year

Following a parliamentary debate on mandatory ethnicity pay gap reporting, which was prompted by an online petition, the government has confirmed that it is still considering responses to its 2018 consultation but plans to publish its analysis of these responses by the end of this year. During the debate, some of the difficulties involved in ethnicity pay gap reporting were highlighted, including data protection issues, categorising data effectively and skewed results due to low numbers of certain ethnic groups within particular employers and geographical areas. In some cases, it would be difficult to ensure a sample size which is large enough to enable valid conclusions to be drawn and to avoid individuals being identified. The government has confirmed that despite these complex challenges, it is determined to help employers tackle race and ethnic disparities in the workplace and that it is assessing the next steps for future policy. The CIPD has recently called on the government to require mandatory ethnicity pay gap reporting by large employers from April 2023 as only 13 FTSE100 companies do this voluntarily.

Gig economy employers told to comply with pension auto-enrolment obligations promptly

The Pensions Regulator has warned gig economy employers that they must comply voluntarily and promptly with their auto-enrolment obligations for workers or risk enforcement action. This comes after Uber recently announced a plan to offer its drivers a pension scheme following the Supreme Court’s ruling in February 2021 which confirmed that Uber drivers have worker status. Uber is also encouraging other companies with similar business model to create a cross-industry pension scheme.