Modern Slavery – your employer obligations

WynLewis

 

Slavery exists…

… despite its abolition by the Slavery Abolition Act 1833 and other legislation in the 19th century (most of which has since been repealed and replaced with its modern equivalent in the form of the Human Rights Act 1998, which prohibits slavery).

Of course modern slavery is different from the type of slavery that was abolished more than 180 years ago: ownership of people as chattels is hardly a live issue in modern Britain, although detecting and preventing the exploitation of people as workplace commodities remains an issue that exercises many people in an increasingly connected world.

So why is this post relevant now?  It’s because, in March 2017, we’re approaching the first full year (ending on 31 March 2017) in respect of which the requirements of the Modern Slavery Act 2015 (the “MSA”) have to be met by large commercial organisations.

Is your organisation successful enough to have to care?  The MSA applies to organisations that carry on business in the UK and have a global turnover of more than £36m per annum.  It requires you to prepare, sign and publish prominently an annual slavery and human trafficking statement for each financial year ending on or after 31st March 2016, stating what you have done (or not) to ensure that human trafficking isn’t happening in your supply chains or business.

But (in the same way as with the Gender Gap Reporting Regulations – see my blog here) there’s no formal sanction for not making a statement.  That said, drivers such as CSR, reputation, brand and employer-of-choice are bound to result in organisations doing what is required by the MSA.  Also the Government can get an injunction requiring compliance and if this is ignored it can give rise to an unlimited fine for contempt of court, for which individual directors may be liable.

The statements that are published will make for interesting reading.

I’ve prepared a more detailed analysis of the MSA on the Cube at Cubism Law, of which Golden Leaver is now a part.

BREXIT, strikes and industrial action ballots

WynLewis

 

Leaving the EU will be easier than going on strike…

From 1 March 2017 the Trade Union Act 2016 will impose new minimum voting requirements if a ballot in favour of a strike or other industrial action is to be lawful.

The background is that – despite the UK having signed up to several international conventions that protect the rights of employees to join unions and participate in industrial action – there is no right to strike or engage in industrial action.

Instead the mechanism is that, if industrial action ballot requirements are met, acts that would result in claims for damages against a union for inducing breach of an employment contract, or the lawful dismissal of employees for breach of contract in refusing to work, are protected.

The new minimum ballot requirements will be that:

  1. at least 50% of union members who are eligible to vote in a ballot must vote; and
  2. there need be no more than a simple majority of those who actually vote in a ballot for strike or industrial action to be lawful; but
  3. if a ballot for strike or other industrial action is in a sector that comprises “important public services” – the health service, teaching under-17s, the fire service, transport services, the nuclear industry and border security – then at least 40% of those eligible to vote in a ballot must also vote in favour of industrial action.

The “important public services” principle was in the 2015 Conservative Party manifesto’s aim to end “disruptive and undemocratic strike action” by introducing tougher thresholds when voting in a ballot for industrial action.

Applying the new post – 1 March 2017 industrial action voting rules for important public services to the (presumably?) important Brexit vote, in order for the Leave vote to have won:

-   under condition 1 above:  at least 50% of the 46,500,001 then eligible voters – so at least 23,250,001 – must have voted.  In the referendum, because 33,551,983 people voted, this threshold was passed easily;

-   under condition 2 above:  at least 50% of those who voted – at least 16,775,991 – must have voted Leave.  In the referendum, because 17,410,7423 people voted Leave, this threshold was also passed easily; but

-   under condition 3 above:  because of the (presumed) importance to the public of Brexit, at least 40% of those entitled to vote – so at least 18,600,001 – would have had to vote Leave.  In the referendum, only 17,410,742 voted for Leave, so the Leave vote would have failed.

So if the Trade Union Act 2017 principles had been applied to Brexit, the UK would not now be about to trigger legislation that will result in it leaving the EU.

The ironies are that the Brexit referendum methodology offered no proportionality of the type that characterises the new ballot requirements;  a strike ballot has a “use by” date, but the Brexit referendum doesn’t even have a “best before” date;  and whereas a failure to observe the new rules about voting for strike and other industrial action would render the trade union liable for damages and would make dismissals fair, there are no sanctions for the consequences to the UK electorate or to EU citizens settled in the UK, of leaving the EU.

What else does the Trade Union Act 2017 do?  It amends the Trade Union and Labour Relations (Consolidation) Act 1992 by increasing ballot thresholds; by introducing new information and timing requirements in relation to an industrial action ballot; by imposing requirements on unions for supervising picketing; and by anticipating (but introducing) regulations to abolish check-off of union subscriptions in the public sector.

Consequently it will be easier to leave the EU (affecting 64 million people) than it is to go on strike (affecting a much smaller cohort).

If you’re interested in more information then take this short cut to another blog about this in the Cube updates of  Cubism Law, of which Golden Leaver is now a part.

Got a Gender Pay Gap?

WynLewis

 

At last – something that’s NOT about Brexit:  the Gender Pay Gap Regulations

It’s time to stop ignoring what private sector organisations with 250 or more staff must do after the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 come into force on 6th April 2017.

Although the fact of a gender pay gap may not be rocket science, what’s interesting is that the gender pay gap isn’t a one-way gap.  Apparently it falls to about 9% for full time employees; it reverses to minus 6% for part time workers (where women tend to earn about 6% more than men); and it falls to quite a small % when men and women in their 20s and 30s are compared.  But remember that a gender pay gap isn’t an equal pay gap (which is unlawful if men and women are doing the same job).  Instead it’s an analysis of different rates of pay between men and women.

Three pieces of data have to be collected.  These are (1) the employer’s gender pay gap % as at 5th April in a particular year; (2) the organisation’s gender pay bonus gap over the last 12 months; and (3) the proportion of male and female staff who received a bonus in the same 12 month period.  This data then has to be available on the employer website for 3 years and on a government website.  Explanations for the reasons for any gap or of work being done to close the gap are encouraged.

Pay includes the gross monthly (if paid per month) or weekly (if paid per week) amount of basic pay, bonuses, allowances, holiday pay and shift premiums, but excludes overtime, expenses, benefits in kind, the value of salary sacrifices and payments made on termination of employment.

There are no sanctions (not yet) for not complying with the reporting obligations.  But there will probably be some effect on employers who routinely tender for public sector work and need to comply with procurement requirements that may favour tenderers with a smaller gender pay gap.  There may also be forum shopping by employees who choose to work for “employers of choice” that make a virtue of equal pay and of diminishing any gender pay gap: the name and shame game.

Some people think that, for the time being, the benefits of these regulations will be felt more by statisticians and accountants than the individuals who are at the lower end of any gender pay gap.

If you’re interested in more information then take this short cut to another blog about this in the Cube updates of  Cubism Law, of which Golden Leaver is now a part.

 

BREXIT = Bregulatory Meltdown?

WynLewis

 

We’re in a post-BREXIT employment law New World Order…

For some time now, the Government has been operating what’s known as the “one in, two out” regime when introducing new regulations.  People often think this means that for every new regulation to become law, two regulations must be abolished.

It’s not as simple as that.

In practice it means that, where there’s a need for a new regulation, and where there’s a cost to business of complying with that new regulation, the Government has to remove or modify existing regulation(s) to the value of £2 of savings for every £1 of cost imposed.

The regime came about as a result of businesses complaining about the time and cost of complying with the complexity and number of new regulations.  But, whilst the regime could mean the introduction of more (less costly) regulations, it’s resulted in fewer regulations overall.

So imagine the joy that businesses and Government might experience when EU-derived legislation and associated regulations melt away post-BREXIT!

Or not.

This is the thing:  much of the UK’s legislation, though deriving from EU directives, works well and matches current social trends and is likely to remain in place and/or influence our home-grown laws for some time to come.  So getting rid of this “good stuff” would be a retrograde step from the perspective of having a better society.  There’s also a certain amount of EU legislation that was already law in the UK before it became subsumed into EU law at a later date.  So we would probably want to retain that anyway.

In reality the range of EU-derived employment legislation is broad and includes agency regulations, collective consultation, discrimination, diversity and equality rights, family leave, TUPE and working time (including minimum holiday entitlements – the UK’s entitlement is actually more generous than required by EU law).  And although many aspects of these laws are unpopular, some of them have brought certainty (the service provision changes under TUPE) and a better deal socially (note that shared parental leave is a local, not an EU provision).

But what if, post-BREXIT, the Government imposed (even more of) a shock on business of having to deal with a sudden, fundamental change in the law by repealing everything EU-related…?  It would be too much.  Also we all (probably) recognise that, in order to access a free(ish) market, there will be a need to preserve certain minimum employment protection regimes.

So instead, the Government will take a drip-feed approach.  For that reason, the quantity of employment law likely to vanish is small; but our labour laws may approach Canada, Australia and New Zealand – independent trading nations we will now have to model ourselves on.

What are the candidates for being kicked out or changed?  Here are some that might be considered:

-       the right to accrue holiday when off sick?  Kick out entirely.

-       the whole of the agency worker regulations?  Kick out entirely.

-       the ban on capping bonuses in the financial sector?  Kick out or modify.

-       no cap on discrimination compensation?  Kick out and mirror the unfair dismissal cap.

-       no cap on whistle blowing compensation?  Kick out and mirror the unfair dismissal cap.

-       the right to carry over unused holiday entitlement for 18 months?  Kick out or modify.

-       ban harmonising terms and conditions after a TUPE transfer?  Modify to allow this.

Whatever happens, it won’t be immediate.  The two-year post-Article 50 negotiation period is probably only the beginning of the period before laws and regulations start to be changed – and even then the new BREXIT regime is likely to look pretty similar to the current regime.

So keep calm and carry on…

…but remember as well the effect on employment rights of not having free movement of people to do your work – have a look at my earlier BREXIT blog on this here.