| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Discover the Government’s Plan to Protect Equal Pay Rights
The Government has pledged to introduce new regulations ‘long before the end of the year’ to ensure equal pay rights for women aren’t watered down when it revokes EU laws. We look at what’s being proposed and the potential impact on businesses.
Understand the Current Position
The Retained EU Law (Revocation and Reform) Act 2023 was passed on 26 June this year. The Government’s original plan was for the legislation to revoke EU laws automatically at the end of 2023 unless specific regulations were introduced to save them.
However, everything except about 600 pieces of legislation is now being retained (for the time being anyway). There’s no significant employment legislation on the Government’s revocation list, although it has been consulting on changes to the Working Time Regulations and a minor change to TUPE.
There are, however, some rights contained in EU treaties that UK employees can rely on, even though they go beyond the entitlements granted by domestic legislation. These so-called ‘directly effective rights’ are being abolished by the Act.
One of these rights is the ‘single-source’ provision in the Treaty on the Functioning of the European Union. This enables workers to bring equal pay claims even if they work for different employers or in different locations, as long as a single body is responsible for, and can correct, the pay discrepancy.
This is an easier test for claimants to meet than the one in the UK’s Equality Act 2010. This only allows women to compare their pay to men if they work for the same or an associated employer and are either at the same establishment or at a different establishment where ‘common terms’ of employment apply.
What’s Happening?
At the end of August, Labour said it intends to restore the single-source test if it wins the next general election. Hours later, a Government spokesperson announced that ministers would bring in regulations this year to maintain the provision. There’s no sign of these yet but if the Government is to meet its commitment, draft regulations will need to be published soon.
Potential Impact
Thousands of female store workers at Tesco and Asda are currently relying on the single-source provision to claim that they should be paid the same as predominantly male warehouse workers. The provision has also been used by women working for Birmingham City Council in traditionally female roles such as teaching assistants and cleaning and catering jobs to claim the same pay as male colleagues such as refuse collectors. The council has already paid out £1 billion to settle these claims but may now have to pay up to another £760 million – something which led it to declare itself effectively bankrupt last month.
If the single-source test is retained, this could therefore have far-reaching consequences for large employers who are unable to justify pay discrepancies across multiple workplaces.
If you’re a smaller employer with a simpler structure, it won’t make a difference to you whether the single-source test is retained or not. Either way, though, it’s important to understand that no Equality Act provisions are being repealed. The Act states that men and women performing equal work, or work of equal value, must receive equal pay, unless you can justify the difference. As we’ve seen, it also contains provisions covering workers in different locations, albeit these are weaker.
Publicity around Birmingham City Council’s plight and the single-source test could lead to your female workers asking difficult questions about their own pay. So be prepared to justify or iron out any discrepancies.
| HEALTH & SAFETY
Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Good Mental Health at Work Starts with a Culture of Psychosocial Safety
Figures from the Health and Safety Executive (HSE) show there were 914,000 cases of work-related stress, depression, or anxiety in 2021/22. As a result, 17 million working days were lost. Psychological health and wellbeing has long been a major issue in the workplace, with stress, burnout, anxiety and depression costing economies billions and resulting in high levels of long-term sickness absence and consequent disruption. It is an area of OH&S management which many organisations feel inadequately equipped to deal with and, too often, has been dealt with in a superficial way.
The psychological health and wellbeing of workers are foundations for resilience and sustainability. For long-term success, employers need to address the root causes of psychological ill health and recognise that people’s work and home life are not inseparable; there should be a suitable balance between the two. Physical, mental and cognitive needs and expectations mean that not only should we be kept healthy and safe at work but we should have the capacity to learn, develop and flourish.
Equally, an organisation’s approach to getting people back to work and how they are expected to work will impact their wellbeing outside of work – making the cycle of ill health continue.
3 Steps to Support Your Workers
- Identify: ask your workers, inspect your workplace and take note of any potential hazards to mental health in the workplace. Identify work-related stress and implement a mental health risk assessment and surveys to determine any areas of risk. This will help you identify possible stressors such as poor workplace relationships or remote or isolated working.
- Implement: put into place policies and procedures to support your workers. Have some sort of reward and recognition scheme, offering rewards and points when employees complete a health-focused activity. Implement peer-to-peer challenges to help colleagues connect, such as a workplace social group to encourage employees to discuss interests, spark fun conversation and deepen relationships. Training one or two employees as mental health first aiders will benefit your employees. Signpost employees to obtain further information, guidance and support from other organisations. Encourage line managers to conduct regular one-to-ones with employees. Scheduled appraisals should include an assessment of mental wellbeing.
- Review: review your arrangements and re-do the risk assessment and surveys to determine if the arrangements you have implemented have made a difference. The mental health charity, Mind, recommends that you carry out a policy review, measure employee experiences by conducting additional surveys, review staff turnover rates and review trend analysis from your line managers’ one to ones.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
How You Can Avoid the Most Common NMW Errors
In June 2023, the Government named and shamed 202 employers for failing to pay their workers the National Minimum Wage (NMW). To help other employers from following suit, HMRC publish guidance to help them understand the NMW rules and to ensure that they pay their workers at least the statutory minimum for their age. The guidance includes a checklist for employers listing common issues which may result in workers being underpaid.
NMW and NLW Rates
Workers aged 23 and older must be paid at least the National Living Wage (NLW). Workers under the age of 23 and above school leaving age must be paid at least the NMW for their age. A separate rate – the apprentice rate – applies to apprentices who are aged 19 and under and also to apprentices over the age of 19 who are in the first year of their apprenticeship.
The rates applying from 1 April 2023 are as follows:
| NLW: workers aged 23 and above | NMW: workers aged 21 and 22 | NMW: workers aged 18 to 20 | NMW: workers aged 16 and 17 | Apprentice rate |
| £10.42 per hour | £10.18 per hour | £7.49 per hour | £7.49 per hour | £5.28 per hour |
Common Errors to Avoid
HMRC have published a checklist for employers listing the following 18 errors that frequently give rise to underpayments.
- Making deductions or taking payments from workers for items or expenses connected with the job reducing the worker’s pay to below the NLW/NMW.
- Making deductions or taking payments from the worker’s pay for the employer’s own use of benefit where the employer can use the money deducted as they wish. The deductions reduce the worker’s pay below the NLW/NMW.
- Failing to pay for any additional time added to a worker’s shift, for example, handover time between shifts or time spent passing through security checks on arrival and exit.
- Failing to pay a worker for any time during their shift when they are at their workplace and are required to be available for work, even if no work is provided at that time during their shift.
- Failure to pay a worker for time spent travelling on business.
- Failure to pay the worker for time spent training.
- Failure to pay the worker sufficient money for any time worked during a sleep-in shift.
- Applying the accommodation offset (set at £9.10 per day from 1 April 2023) when living accommodation is provided to the worker.
- Paying the apprentice rate when the worker is not a genuine apprentice.
- Paying the apprentice rate to a worker before their apprenticeship starts or after it has finished.
- Continuing to pay the apprenticeship rate to an apprentice over the age of 19 after they have completed the first year of their apprenticeship.
- Failing to pay an apprentice for the time that they have spent training or studying as part of their apprenticeship.
- Failing to apply the annual increases to the NLW and NMW that come into effect from 1 April each year.
- Failing to increase the NLW/NMW payable when the worker moves into a new age band when they reach 18, 21 or 23.
- Including an element of pay that does not count towards the NMW in the calculation, for example, tips from customers or premium overtime.
- Failing to pay the minimum wage to workers who are entitled to it, for example, interns, workers on work experience or on a work trial who may be eligible.
- Failing to take account of excess hours worked beyond their basic hours by salaried workers which may push their pay below the NLW/NMW.
- Failure to distinguish correctly between different types of workers (e.g. salaried, time, output and unmeasured workers).
The checklist is available on the Gov.uk website at: tinyurl.com/mrxajbjc It is worth a look and contains links to useful guidance.