21 May 2007

NEWS

Women Outnumber Men in Public Sector

According to statistics published by the Office for National Statistics (ONS) female workers significantly outnumber male workers in the public sector.  Read more

Employers' Groups Urge Government to Provide Details of Skills "Pledge"

Employers' Groups have criticised the Government for failing to take action to avoid the skills catastrophe predicted by the Leitch Review of Skills last year.  Read more

Survey Reveals Almost One Quarter of Workers are "Unhappy at Work"

A Happiness at Work Survey, by recruitment consultants Badenoch & Clark, has revealed that nearly one quarter of UK office workers are unhappy with their jobs.  Read more

New Measures Designed to "Flush Out" Illegal Migrant Workers

The immigration minister, Liam Byrne, has revealed tough new measures to "flush out" Britain's illegal migrant workers.  Read more

Unions Object to Remploy's Plans to Close Factories 

Plans to close factories run by Remploy, the UK's biggest employer of disabled people, have been met by objections from unions.  Read more

Employers' Willingness to Recruit Ex-Offenders Could Help Reduce Skills Shortage 

A survey by the Chartered Institute of Personnel and Development (CIPD) has revealed that 75 per cent of employers would consider employing ex-offenders if they had the relevant skills.  Read more

Majority of Employers are Taking Steps to Tackle Gender Equality in Pay

A survey conducted by Opportunity Now, a body that helps employers build workplace cultures that are inclusive to women, has found that 80 per cent of employers claim to be tackling the inequalities in pay between men and women.  Read more

LEGISLATION

Consultation on Additional Paternity Leave and Pay

The Government has published its consultation paper on the administration of Additional Paternity Leave and Pay.  Read more

New Sex Discrimination Regulations to be Drafted

Following on from the High Court's ruling that the Employment Equality (Sex Discrimination) Regulations 2005, which amended the Sex Discrimination Act 1975, did not adequately implement the Equal Treatment Directive, the Department for Communities and Local Government has confirmed that new regulations will be drafted and come into force in October 2007.  No further details have been provided at this stage.  Read more

Consultation on the Enforcement of the National Minimum Wage and Employment Agency Legislation

The DTI has published a consultation paper on the enforcement of the national minimum wage (NMW) and employment agency legislation.  It is proposing to strengthen the current enforcement regimes and to make changes to the way in which arrears of pay due to a worker who has not received the NMW should be calculated.  Read more

CASES

EAT Provides First Guidance on Meaning of "Same Job" for Women Returning from Maternity Leave

The EAT has provided guidance on what amounts to the "same job" for women returning from maternity leave and has found that a schoolteacher was not entitled to come back to teach the same class.  Read more

Employer's Meeting Note Fulfils Step One of the Statutory Grievance Procedure

The EAT has held that a meeting note made by an employee's manager was a written statement of grievance for the purposes of step one of the standard grievance procedure.  Read more

NEXT HR NETWORK EVENT

Our next HR Network Event will be our Briefing on the DTI Consultation on the statutory dispute resolution procedures followed by our Workshop on Employment Status: know your workforce.  A full list of HR Network workshops and seminars is available here.

FEEDBACK

Please let us know what topics are of interest to you by emailing HRnetwork@pinsentmasons.com.  This will help us to shape future editions of this Briefing and HR Network events.

NEWS

Women Outnumber Men in Public Sector

According to statistics published by the Office for National Statistics (ONS) female workers significantly outnumber male workers in the public sector.

The statistics were published in the ONS's latest edition of the Economic and Labour Market Review and revealed that the proportion of female workers (65.2 per cent) in the public sector was almost double that of male workers (34.8 per cent). 

The Review by the ONS said: "This pattern of male and female employment is the opposite of that which is found within the private sector, where there is a greater proportion of men compared with women."

The Equal Opportunities Commission has said that public sector jobs offer greater opportunities for flexible working for mothers, as well as better pay parity with men.  It said: "The pay gap in the public sector is almost 10 percentage points less than in the private sector".

Other statistics outlined in the Review included:

• a higher average wage rise in the public sector than the private sector since 2000 (29.3 per cent and 26.5 per cent respectively);
• an increase from 23 per cent to 30 per cent of workers aged over 50 working in the public sector compared to an increase from 23 per cent to 27 per cent in the private sector; and
• 10 per cent fewer workers aged under 25 work in the public sector (6 per cent) as compared to the private sector (16 per cent).

The Review also revealed that public sector workers occupy their jobs longer than their counterparts in the private sector – over 40 per cent of public sector workers remained in their jobs for more than 10 years compared with just 28 per cent in the private sector.  (Financial Times, 15 May 2007).  Back

Employers' Groups Urge Government to Provide Details of Skills "Pledge"

Employers' Groups have criticised the Government for failing to take action to avoid the skills catastrophe predicted by the Leitch Review of Skills last year. 

As reported in our earlier Briefing, the Leitch Review recommended that the Government encourage employers to "pledge" to train more staff.  The pledge would signify a commitment from employers to train all their workers to Level 2, the equivalent of five GCSEs at A-C by 2010.  However, almost 6 months after the Review's recommendation, no employer has committed itself to this pledge.  Employers' groups are blaming this on the Government's failure to outline what the pledge entails. 

Susan Anderson, the CBI director of HR policy, said: "We urge the Government to get the pledge out quickly.  We need to agree what it is employers are committing to.  The Government wants to judge progress by 2010, so it has to tell us what we have to sign up to.  The more it dilly-dallies around, the more time is lost."

A senior economist at EEF, Lee Hopley, agreed with Ms Anderson.  She said: "It is hard to ask companies to sign up to a pledge until they know the details of it.  It has been six months now, and it is time the Government set out what it wants us to sign."  (Personnel Today, 15 May 2007)

To view a copy of our earlier Briefing on the recommendations of the Leitch Review click here.  Back

Survey Reveals Almost One Quarter of Workers are "Unhappy at Work"

A Happiness at Work Survey, by recruitment consultants Badenoch & Clark, has revealed that nearly one quarter of UK office workers are unhappy with their jobs. 

The survey found that 30 per cent of men were unhappy at work and 22 per cent of women were discontent.  Male IT workers were the least happy workers and the least happy workforce was found to be in Manchester.  The workforce found to be most content were female lawyers living in Bristol. 

The managing director of Badenoch & Clark, Neil Wilson, believes that employers need to make more efforts to tackle worker discontent to avoid the costs of high staff turnover.  He said: "It's essential that employers understand what motivates and enthuses their workforce.  Benefits, opportunities to work flexibly, management style and work environments will all have an impact."  (BBC News, 15 May 2007)  Back

New Measures Designed to "Flush Out" Illegal Migrant Workers

The immigration minister, Liam Byrne, has revealed tough new measures to "flush out" Britain's illegal migrant workers. 

The penalties for employers who knowingly employ illegal workers will be a jail term of up to two years and unlimited fines.  Employers will also be penalised by up to £10,000 per worker if they fail to conduct proper checks to establish the rights of foreigners to work in the UK.

The proposed checks employers will have to make include inspecting birth certificates or passports of job applicants.  Foreigners who seek to work in the UK will require a sponsoring employer and will have to apply for work permits in their own countries.  They will also be required to obtain a biometric visa to make it easier for businesses to check their identity. 

Mr Byrne spoke of the aims of the new measures.  He said: "What we are proposing here will, I think, flush illegal migrants out.  We are trying to create a much more hostile environment in this country if you are here illegally.  We have to make Britain much less of an attractive place if you are going to come here and break the rules.  That means making it easier for companies to check whether someone is here legally, but also coming down much harder on businesses which break the rules or turn a blind eye."

The deputy general secretary of the CBI, John Cridland, expressed his support for the proposals.  He believes that it is reasonable to expect employers to make checks on their staff's right to work in the UK, a measure already carried out by the CBI in its recruitment.  He said: "Rogue employers give all employers a bad name and undermine competition, particularly for small businesses."

The Government has issued a consultation paper on its proposals and responses have to be in by 7 August 2007.

The new measures follow the announcement that a new points based immigration system is to be introduced from next year.  (Financial Times, 16 May 2007)

To see our earlier Briefing on the new points based immigration system click here.

To see the Government's consultation paper, click here.  Back

Unions Object to Remploy's Plans to Close Factories 

Plans to close factories run by Remploy, the UK's biggest employer of disabled people, have been met by objections from unions.

Remploy, an independent government-funded body, currently operates 83 heavily subsidised factories employing more than 5,000 disabled workers.  It is due to announce the number of closures this week.  Unions have expressed concern that as many as one third of the factories will close.   

The chief executive of Remploy, Bob Warner, said: "There is now an acceptance that disabled people would prefer to work in mainstream employment alongside non-disabled people rather than in sheltered workshops from which they do not progress or develop.  Maintaining the status quo is not an option and we will be discussing the future of our factories with the trade unions."  (Financial Times, 17 May 2007)  Back

Employers' Willingness to Recruit Ex-Offenders Could Help Reduce Skills Shortage 

A survey by the Chartered Institute of Personnel and Development (CIPD) has revealed that 75 per cent of employers would consider employing ex-offenders if they had the relevant skills.

The survey, "Employing Ex-Offenders to Capture Talent", calls on the Government to utilise employers' willingness to recruit ex-offenders by ensuring the ex-offenders are equipped with more marketable job skills.  Dianah Worman OBE, CIPD Diversity Adviser, said: "Ex-offenders are a largely unused pool of talent which employers could access as a way of helping reduce skills shortages.  Getting involved in the rehabilitation of ex-offenders through corporate social responsibility initiatives will help to create economically successful communities in which individuals and businesses can benefit."

As reported in our earlier Briefing, Phil Hope, the skills minister, also illustrated how employers could look towards the prison service in a bid to recruit skilled workers.  He said that in addition to training inmates in "soft skills", such as punctuality and teamwork, prisons could be asked to train inmates in the specific skills required by companies who may be experiencing a shortage of skilled workers.

Ms Worman believes that current training in prisons needs to be improved if ex-offenders are to make a successful transition into skilled employment.  She said: "Training provision in prisons is patchy and offenders are frequently moved between them.  This seriously reduces the rehabilitation prospects for offenders.  For training to be successful in leading to jobs, its availability needs to be consistent across all prisons so that offenders can continue learning regardless of their location."

Ms Worman also discussed the need for a national communication strategy to influence and inform employers' perceptions about the potential benefits of employing ex-offenders.  She said: "The survey finds employers are more likely to offer jobs to ex-offenders who have gone straight for at least two years while relatively few offer jobs to ex-offenders either directly from prison or offenders under Probation Service supervision.  Nevertheless one in ten say that they would consider offering jobs to offenders under licence or supervision and a further three-fifths of organisations say that this is something they would consider if they had more information and support."  (CIPD Press Release, 16 May 2007)  

To view our earlier Briefing on the training of prisoners for the workforce click here.  Back

Majority of Employers are Taking Steps to Tackle Gender Equality in Pay

A survey conducted by Opportunity Now, a body that helps employers build workplace cultures that are inclusive to women, has found that 80 per cent of employers claim to be tackling the inequalities in pay between men and women. 

The survey of 94 employers in the public, private and education sectors revealed that nearly one third of employers also have effective structures in place to tackle segregation in gender-specific jobs (up from 20 per cent in 2006).  These include specific recruitment drives, job shadowing, open days and senior management commitment to change.  

Meg Munn, the deputy minister for Women and Equality, said: "As the benchmarking survey shows, employers are increasingly aware that addressing equality and diversity in the workplace is a necessity, not a luxury.  This is encouraging news as we continue to take action to improve the prospects of women in the labour market.  When employers get this right, it not only benefits women, it also benefits the businesses, the economy and society as a whole."  (Personnel Today, 16 May 2007)  Back

LEGISLATION

Consultation on Additional Paternity Leave and Pay

The Government has published its consultation paper on the administration of Additional Paternity Leave and Pay. 

Additional Paternity Leave and Pay will enable employed fathers to take up to 26 weeks Additional Paternity Leave, some of which can be paid if the mother of the child has returned to work.  This new provision will be available during the second six months of the child's life. 

The consultation paper seeks views on:

• the practicalities of the administration of Additional paternity Leave and Pay;
• the notification period for a father's employer to confirm their employee's entitlement;
• the form that may be used by an employee wishing to take Additional Paternity Leave and Pay; and
• the use of a checklist to help employers.

The consultation will close on 3 August 2007. 

The earliest date the proposals will be implemented will be for babies due on or after 5 April 2009.

Additional Paternity Leave and Pay Administration Consultation.  Back

New Sex Discrimination Regulations to be Drafted

Following on from the High Court's ruling that the Employment Equality (Sex Discrimination) Regulations 2005, which amended the Sex Discrimination Act 1975, did not adequately implement the Equal Treatment Directive, the Department for Communities and Local Government has confirmed that new regulations will be drafted and come into force in October 2007.  No further details have been provided at this stage.

The ruling was made following the Equal Opportunities Commission's request for judicial review of the 2005 Regulations.  To see our earlier briefing reporting this case, click here.  Back

Consultation on the Enforcement of the National Minimum Wage and Employment Agency Legislation

The DTI has published a consultation paper on the enforcement of the national minimum wage (NMW) and employment agency legislation.  It is proposing to strengthen the current enforcement regimes and to make changes to the way in which arrears of pay due to a worker who has not received the NMW should be calculated.

The consultation paper seeks views on:

• a fairer way of calculating NMW arrears for all workers and how it can be achieved;
• the proposal to introduce a penalty for all employers who are found to be underpaying the NMW, the form it should take and the level it should be; and
• its proposal that the Employment Agencies Act 1973 should be amended to strengthen the enforcement regime against agencies who do not comply with Regulations governing them.

The consultation will close on 8 August 2007.

National Minimum Wage and Employment Agency Standards Enforcement – Consultation Document  Back

CASES

EAT Provides First Guidance on Meaning of "Same Job" for Women Returning from Maternity Leave

The EAT has provided guidance on what amounts to the "same job" for women returning from maternity leave and has found that a schoolteacher was not entitled to come back to teach the same class.

An employee returning from maternity leave is entitled to return to the job in which she was employed before her absence (or, in the case of additional maternity leave, to another suitable job if it is not reasonably practicable for her to return to the same job).  Job is defined as meaning the nature of the work she is employed to do under her contract and the capacity and place in which she is employed to do it.

Mrs Blundell was a schoolteacher for St Andrew's Catholic Primary School, her employer.  It was standard practice at the school to allocate teachers to new classes every two years.  Mrs Blundell was teaching the reception class at the time she began her maternity leave and, on her return, she was allocated to teach Year 2.  She brought a claim for sex discrimination on grounds of pregnancy against the school, arguing that she was entitled to return to the same job in which she was employed before her absence.

The employment tribunal dismissed her claim and she appealed to the EAT.

The EAT upheld the decision of the employment tribunal, finding that Mrs Blundell had returned to the same job.  Having regard to the nature, capacity and place of work, Mrs Blundell was employed as a teacher in the general sense, rather than as a teacher of a particular class.  The purpose of the legislation was for employers to ensure that women who took maternity leave returned to work having experienced "as little dislocation as reasonably possible" in their working life.  In cases where an employee's role is varied, the tribunal may consider the "normal range" within which variation has previously occurred in order to decide which jobs are permissible on return.

This is reported to be the first decision at EAT level on what amounts to the same job for the purposes of the maternity leave provisions.  The EAT said that what the contract says is only determinative of whether the nature of the work is the same – and in this regard it is necessary to consider the job description (if it is contractual) and any other contractual terms.  The contract does not, however, determine matters relating to capacity and place.  These must be determined on a factual basis.  In this case it held that the nature of the work which Mrs Blundell was employed to do was that of teacher, her capacity (as a matter of fact) was that of class teacher (as opposed to reception class teacher) and her place of work (as a matter of fact) was the school (as opposed to a particular classroom). 

Blundell v Governing Body of St Andrew's Catholic Primary School  Back

Employer's Meeting Note Fulfils Step One of the Statutory Grievance Procedure

The EAT has held that a meeting note made by an employee's manager was a written statement of grievance for the purposes of step one of the standard grievance procedure.

Mr Francis was employed by Kennedy Scott Limited ("KS Ltd") as a job broker helping the unemployed return to work. In March 2006 he met the human resources manager to discuss ongoing bullying by a manager and other members of staff.  He was advised to follow the company's grievance procedure.  The first step under the procedure provided that concerns should be raised informally with the immediate manager who would record details of the grievance and attempt to resolve it.  Mr Francis did this and met with his immediate manager who took notes of the meeting.

On 5 July 2006, Mr Francis was made redundant. He appealed this decision and also asked when he would hear the outcome of his earlier grievance.  There was also a delay in hearing his redundancy appeal. On 3 October 2006, he commenced proceedings for unfair dismissal and sex and race discrimination in respect of those matters he had raised by way of grievance.  The tribunal could not hear the discrimination claims unless he had first raised a grievance in relation to them.  The EAT had to determine whether the employee had set out his grievance in writing and sent a copy to his employer so as to comply with step one of the standard grievance procedure.

The EAT reviewed previous case law and held that the focus should be on substance and not technicality.  The employers were aware, after the meeting, that a grievance had been raised and recorded in writing.  There was no necessity for Mr Francis personally to put the grievance in writing and send it to his employer.  On this basis, the EAT held that the manager's meeting note constituted the employee's written grievance for the purposes of step one of the standard grievance procedure and allowed the discrimination complaints to proceed.

This case once again shows that tribunals are not going to accept overly technical arguments over whether a grievance has been raised.  Although the employee in this case had difficulties with literacy, the decision appears to be of wider application.  Whilst the EAT was keen to emphasize that whether the requirements of step one have been met will always depend on the particular facts of the case, it said that there was nothing which prevents an employer from assisting an employee in setting out his grievance. It said that Parliament could not have intended an employee, who had previously made a complaint of discrimination to his employer and had it recorded in writing, to be debarred from bringing a claim.

Kennedy Scott Ltd v Francis  Back

© Pinsent Masons 2007

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

Should you have any questions please contact your usual Pinsent Masons advisor, your local office (see below) or hrnetwork@pinsentmasons.com

National Head of Employment

Chris Booth