152: And finally a look forward to what’s happening in employment news for March 2019

This article was written by Paulette White, Paralegal
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The Government has published a response to the Women and Equalities Select Committee report on sexual harassment at work which was published in July 2018. Its most significant proposal is a new statutory code of practice on sexual harassment, to be developed by the Equalities and Human Rights Commission (EHRC). This will clarify the actions employers must take to fulfil their legal duties. At present the Government does not propose to adopt the Committee’s recommendation that breach of this statutory code should result in a compensation uplift of up to 25%, but this will be kept under review. The Government also rejected the Committee’s proposal to impose a mandatory duty on employers to protect workers from harassment but will nevertheless consult on this issue in order to assess its likely impact. There will also be consultations on how best to tackle third party harassment; whether additional protection is needed for interns and volunteers; the possible extension of Employment Tribunal time limits for discrimination and harassment claims from three to six months; and improved regulation of non-disclosure agreements. In addition, the Government will work with Acas and the EHRC to ensure greater awareness of appropriate workplace behaviour and individual rights. Acknowledging the lack of data and research in this area, the Government has also agreed to gather evidence on the prevalence and nature of sexual harassment at work at least every three years.

The Low Pay Commission (LPC) has published a report on the issue of ‘one-sided flexibility’, where a worker has no guarantee of work but is expected to be available at very short notice as and when required. In March 2018, the LPC consulted on a proposal raised in the Taylor Review that non-guaranteed hours should attract a higher national minimum wage unless the worker has had at least a week’s notice of their working hours. Although the LPC found widespread support for measures to address this issue, responses to its consultation did not agree that there should be a national minimum wage premium. Instead, the LPC has proposed various alternative measures: a right to a contract that recognises normal working hours; a right to reasonable notice of working hours, with appropriate enforcement and remedies; compensation for shift cancellation or curtailment without reasonable notice; and better information in the form of a written statement of terms for all workers. The Government has already announced in its Good Work Plan that all workers will be entitled to a statement of their rights on appointment and have the right to request a more predictable working pattern after 26 weeks’ of service.

The Department of Business, Energy and Industrial Strategy has updated its guidance on calculating the national minimum wage to include unpaid work trials. The guidance notes that unpaid trial periods may be a legitimate practice in recruitment, but in some cases the candidate will be asked to perform tasks for which the national minimum wage or national living wage should be paid. Noting that current legislation does not define a ‘trial work period’, the guidance also sets out factors that should be taken into account when considering whether an individual should be paid. These include whether the trial length exceeds a reasonable amount of time that an employer would need to assess the individual’s ability in the role; the nature of the tasks and how closely they relate to the job being offered; whether the tasks carried out add value to the employer beyond testing the candidate; and the extent to which the individual is observed during the trial.

The Government has published a consultation on whether national minimum wage legislation should be amended to make it easier for employers to rely on the provisions for salaried hours work, and on whether salary sacrifice schemes are being withdrawn from low-paid workers in order to avoid non-compliance. Some businesses, particularly those in the hospitality and retail sectors, have suggested that some of the conditions for work to be classified as salaried hours work are too complex and restrictive. For example, workers must be entitled to be paid in equal weekly or monthly instalments, whereas in the retail and hospitality sectors some staff are often paid fortnightly or four weekly. The consultation also asks whether the requirement to exclude overtime and premium payments from remuneration is too onerous. Employers are also asked to give their views on the benefits and risks of offering salary sacrifice schemes to low-paid workers, and whether they have withdrawn any schemes in the past 12 months. In addition, there is a general request for employers to provide information on other areas where they are finding compliance difficult. The consultation closes on 1 March 2019.

On 19 December 2018, the Government published its long-awaited White Paper on the UK’s future skills-based immigration system. Its key provisions include: ending EU freedom of movement and reducing net migration to sustainable levels; applying the same immigration rules to EU and non-EU migrants in a single skills-based system from 2021; modifying Tier 2 of the points-based system by simplifying the sponsorship regime, abolishing the resident labour market test and removing the annual cap on skilled workers; and introducing a transitional temporary scheme for lower skilled jobs (such as those in the construction and social care sectors). The White Paper also confirms that there will be no schemes for specific sectors except perhaps for seasonal agricultural work, depending on the outcome of a pilot scheme in 2019.

On 17 December 2018, the Government published its response to the 2018/2019 strategy for the Director of Labour Market Enforcement, whose remit includes the Employment Agency Standards Inspectorate (EAS), the HMRC National Minimum and Living Wage enforcement team, and the Gangmasters and Labour Abuse Authority (GLAA). The Government has accepted most of the recommendations made in the strategy for improving enforcement and raising awareness of employment rights, several of which have already been addressed in its Good Work Plan. For example, the Government will commission research into the scheme for naming employers who fail to pay the national minimum wage to assess its impact and to identify possible improvements. The EAS and GLAA will also strengthen and prioritise their enforcement of holiday pay for vulnerable workers. In response to the recommendation that the brand name at the top of a supply chain should bear responsibility for non-compliance found further down the chain, the Government will consult on how to address non-compliance in supply chains. It will also update and improve its guidance on modern slavery risks.

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