Update on the Employment Rights Bill: A Big Change to the Plan for Unfair Dismissal Rights
The Government has changed its proposal to make unfair dismissal a day-one right, instead proposing a 6-month qualifying period for all employees before they can bring an unfair dismissal claim.
While some Trade Unions have asserted that this will affect workers’ confidence in the Government, many businesses welcome this final position. According to the Department for Business and Trade:
“It will benefit millions of working people who will gain new rights and offer business and employers much-needed clarity. To further strengthen these protections, the government has committed to ensure that the unfair dismissal qualifying period can only be varied by primary legislation and that the compensation cap will be lifted.”
Outside of unfair dismissal rights, potential changes to zero-hour contracts remain unclear. The Government continues to seek a total ban of these contracts to prevent exploitation of workers, but the Lords have reaffirmed their position that workers should be offered guaranteed hours, but that these need not be accepted by them.
If you have any questions about the implications of the Employment Rights Bill and its recent amendments, please get in touch with a member of our Employment team.
Equal Pay under the Equality Act 2010
The Case: Dr E Bodanese v Queen Mary University London: 3200643/2023
In this case, a Claimant succeeded in her claim for equal pay under the Equality Act 2010, resulting in an award of £30,724.58 plus pension contributions and interest.
The Claimant, a Senior Lecturer at the Respondent’s University, first signed an employment contract in 2003. She alleged that her employer had breached section 66 of the Equality Act 2010, in that her employment contract did not match that of her male colleagues in relation to salary. Section 66(2) of the Act states that:
“(a) if a term of A’s is less favourable to A than a corresponding term of B’s is to B, A’s term is modified so as not to be less favourable;
(b) if A does not have a term which corresponds to a term of B’s that benefits B, A’s terms are modified so as to include such a term.”
The Claimant also alleged direct and indirect sex discrimination under sections 13 and 19 of the 2010 Act respectively. The Respondent had previously admitted that the Claimant and her male colleague were engaged in “like work”, both teaching Grade 7 courses within the University. However, it was argued that the Claimant’s salary on spinal point 49 was lower than her colleagues (spinal point 53) because of factors such as job performance. it also argued that the male comparator had applied for pay rises earlier and possessed a better history of funded research.
The Tribunal had to consider:
- Whether the Claimant’s pay was less favourable than her male colleagues;
- Whether the University had a defence to justify any disparity in pay; and
- Whether direct/indirect sex discrimination had taken place.
Once pay disparity is demonstrated, the burden of proof shifts to the Respondent to demonstrate that it is not discrimination in the circumstances. Any defences for the parity offered by the Respondent cannot be ‘tainted’ by discrimination in any way.
It was determined that the Claimant had previously applied for pay increases and that these applications had been repeatedly mishandled and/or delayed. For example, certain criteria for pay increases (such as possessing active research grants) were imposed on the Claimant without featuring in the Official Staff Bonus Scheme. Furthermore, the Tribunal held that those working for the Respondent who took maternity leave were demonstrably disadvantaged by this criterion – during this period, they would typically undertake less funded research.
The Tribunal rejected the arguments of direct and indirect sex discrimination, as even though comments were directed at the Claimant which humiliated her in the workplace, these could not be adequately linked to her sex.
This case serves as a valuable reminder to Employers to keep their pay schemes fair and transparent, particularly in relation to criteria which may disadvantage those on maternity leave.
Report on Working from Home
The House of Lords has recently published a report examining the effects of working from home on workers across the UK. The conclusion reached was that effective work from home (WFH) options continue to bring people, particularly those with health problems and disabilities, back into the workplace.
The UK has one of the highest WFH rates in the world, with 13% of working adults occupying fully remote roles and 26% occupying a hybrid WFH/office role. However, the report also found that WFH options are disproportionately offered to workers with degrees and workers in London, compared to others. Furthermore, if WFH measures are not properly implemented by an employer, they can lead to avoidable management issues and even tribunal claims.
The report made several recommendations, including that the Government should avoid introducing major legislation on remote working; instead, it should update and promote employer guidance on the issue. Concerns have also been raised about new remote working provisions in the Employment Rights Bill which may increase the pressure on already overloaded Employment Tribunals.
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