Tag Archive: Equality Act 2010

Employers must prepare for gender pay gap reporting as IFS report confirms 18% gap

Today’s publication of a report by the Institute for Fiscal Studies brings the gender pay gap into sharp focus once again.  The report confirms that the hourly wages of female employees are currently about 18% lower than men’s on average, and that the impact of taking time out of the workplace for family reasons continues to have a significant impact upon a woman’s pay potential for the remainder of her working life. Although this news is unsurprising – concurring with previous reports – its publication is timely, coming at a point when addressing the gender pay gap is high on the Government’s agenda, and reinforcing the need for action.

The Government has already made progress with legislation in this area. In February 2016, the Government confirmed that it would bring in laws to require employers of 250+ employees in the private and voluntary sectors to publish their gender pay gaps. See our previous Be Aware alert for details.  The final legislation is still awaited and it appears will not be ready for its original October timeframe – although the power in the Equality Act 2010 to make the regulations did finally come into force on 22 August 2016.  Instead, the legislation will reportedly take effect in April 2017.

It is expected, however, that the proposal for employers to take a first data snapshot of their pay arrangements in April 2017 will still stand, meaning that there may be a very short timeframe between employers knowing what their final obligations are, and having to comply. The first snapshot figures are also likely to relate to the period from May 2016, meaning that employers should already be thinking carefully about pay decisions and ensuring they are transparent, moderated and carefully documented. Employers will have until April 2018 to publish their first gender pay gap figures.

In the meantime, the Government has also published this week a consultation paper on gender pay gap reporting obligations in the public sector, which largely mirrors that of the private sector.  The consultation closes on 30 September 2016.

With the Government committed to closing the pay gap between men and women, employers must ensure their houses are in order. Take our quiz, How equal is your organisation’s pay? to help identify where there may be pay issues in your organisation, but be sure to seek legal advice before taking any remedial action.  Legal privilege may be able to protect the confidentiality of your information and the steps you plan to take.

If you wish to discuss gender pay in your organisation, or would like a copy of our ‘Gender pay gap reporting’ flyer, please contact Clare Gregory or Kate Hodgkiss, Partners in our Employment team, or speak to your usual DLA Piper contact.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/employers-must-prepare-for-gender-pay-gap-reporting-as-ifs-report-confirms-18-gap/

The ill-treatment of domestic migrant workers because of their immigration status does not amount to race discrimination under the Equality Act 2010

Bethan Odey and Emma Phillips, Senior Associates in our Birmingham office, comment: The recent case of Taiwo v Olgaigbe and another; Onu v Akwiwu and another [2016] UKSC 31 has highlighted the issues which can arise in respect of the employment rights of migrant workers. The case involved Ms Taiwo and Ms Onu, both Nigerian nationals who entered the UK lawfully with a domestic worker’s visa. Ms Taiwo and Ms Onu were subjected to mental and physical abuse, paid less than the minimum wage and denied the required rest periods. Eventually, Ms Taiwo and Ms Onu fled their employers and later brought employment proceedings against them.

In Ms Taiwo’s case the tribunal upheld her claims for unlawful deduction of wages, failure to provide the required rest periods and failure to provide written terms of employment. However, the tribunal dismissed her claims for direct and indirect discrimination under the Equality Act 2010. In Ms Onu’s case the tribunal upheld the same claims, but also held that Ms Onu had been constructively and unfairly dismissed, and that she had been directly discriminated against on the grounds of race.

The two decisions were appealed. The EAT dismissed Ms Taiwo’s appeal and upheld Ms Onu’s employer’s appeal, stating there had been no direct or indirect discrimination. The appeals were then heard jointly in the Court of Appeal where the decisions of the EAT were upheld. The decision of the Court of Appeal was itself appealed to the Supreme Court where it was held unanimously that the treatment of the two employees did not amount to direct or indirect discrimination.

The counsel for the employees conceded that this was not a case of indirect discrimination, which in the Supreme Court’s opinion supported the view that that the mistreatment was not because of the employees’ race but for other reasons. The Supreme Court considered that Parliament could have chosen to include immigration status in the list of protected characteristics, but it chose not to. Although immigration status is a “function” of nationality, the reason why the employees were treated so badly was because of their particular vulnerability arising from their immigration status. It had nothing to do with the fact that they were Nigerian.

The Supreme Court went one step further and advised that Parliament may wish to address whether the remedy provided by section 8 of the Modern Slavery Act, which introduced rules regarding supply chain transparency for organisations, is too narrow and whether the jurisdiction of an employment tribunal should be expanded to allow them to grant compensation for the ill-treatment handed out to employees such as Ms Taiwo and Ms Onu. It seems that without this change, vulnerable migrant workers will continue to be denied sufficient remedy for any grievous harm they may suffer. The new Prime Minister has since confirmed that a new UK cabinet taskforce will address violations of the Modern Slavery Act, £33.5 million will be provided in official development assistance funding and further powers have been granted to law enforcement bodies in respect of modern slavery at sea. The judgment in this case also highlights the importance of having in place correct right to work visas as, should a claim be brought by a migrant worker, this will highlight, in a public tribunal hearing, any deficiencies in respect of right to work documents.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/the-ill-treatment-of-domestic-migrant-workers-because-of-their-immigration-status-does-not-amount-to-race-discrimination-under-the-equality-act-2010/