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Gender Pay Gap Reporting: Myth-busting

 I write further to the deadline for Gender Pay Gap Reporting expiring last week.  Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff.

The initial results?  Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women.

So, that means that those employers are discriminating against women, right?  Well, not necessarily.  But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist?  Not really.

The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females.  Let’s take a look and bust some myths about the Gender Pay Gap Reporting.

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Key employment law changes

moneyAs you may or may not be aware, each year in April the Government introduces new legislation in respect of employment rights and responsibilities.  Below is a summary of the key changes being implemented this month.

  1. National Living Wage

From 1st April 2016, workers aged 25 and over are entitled to the ‘national living wage’ rate of £7.20 per hour – this is essentially a new ‘top rate’ of the national minimum wage.


– The new rate is applicable from the first pay reference period commencing on or after 1st April 2016.

– Please ensure you check that employees’ pay is not brought below the new rate by any form of salary-sacrifice scheme.

  1. Penalties for non-payment of the national minimum wage doubled

This has also taken effect from 1st April 2016 and the same enforcement provisions apply for failure to pay the national living wage.  Further details can be found here:

  1. Employer NICs and Apprentices

You may have noticed the Government’s recent campaign to entice employers to provide more apprenticeships – in their latest drive they have decided to abolish National Insurance Contributions for apprentices aged under 25.  These changes have been introduced with effect from 6th April 2016 and it is hoped they will incentivise employers to offer more apprenticeships going forwards.

  1. Statutory family-related pay and sick pay

Employers will be surprised to note that there will be no increase to statutory adoption, maternity, paternity or shared parental pay rates this year, and statutory sick pay is similarly unchanged.  Details of the current applicable rates can be found here:

However new limits for statutory redundancy pay and employment tribunal awards have been introduced from 6th April 2016, and are as follows:

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Ordinary parental leave – an update

paternity-leave-2I was recently updating the subscription zone for our subscribers to Canter Levin & Berg Employment Solutions when I was reminded that, in addition to taking into account the new arrangements for shared parental leave there are knock on effects for what was previously referred to as parental leave.

Most of us who deal with maternity absences are familiar with the general provisions applicable to maternity leave and they are set out in detail in our subscription zone so subscribers know exactly what to do in that regard.

However, what was previously parental leave is now known as as ordinary parental leave. The main reason is to avoid confusion with shared parental leave.

From April 2015 the entitlement applies in respect of any children before their 18th birthday and the specific provisions relating to disabled and adopted children no longer apply.

The main point about ordinary parental leave is that, although the entitlement is for up to 18 weeks per child, it is unpaid. Accordingly, it is unlikely to be at the forefront of the minds of those considering their parental leave arrangements. However it should not be disregarded, particularly in terms of planning for staffing requirements.

There is still a requirement for employees to have been employed for at least one year before having the entitlement. It is also important to remember that the entitlement to shared parental leave is not contingent on ordinary parental leave – both are free standing rights. Bearing in mind that the entitlement can span a period of 18 years there will be many cases in which employers can do little more than trust that the information provided to them by their employees (particularly in respect of former employment) is correct.

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shared parental leave update

baby-17369_1280Last May I mentioned that shared parental leave is on its way and now it is almost upon us. Many employers have commented that the arrangements seem to be very complicated so it is timely that both the Government and ACAS have published detailed and helpful guidance.

Shared parental leave is to be introduced from next April in respect of babies due (or due to be adopted) on or after 5 April but notices requesting leave could therefore be served as early as next January. It is therefore important for all employers to understand the scheme now and to make appropriate arrangements to accommodate the new procedures.

Detailed information is available in the ACAS Good Practice Guide. However, in summary, the key features are as follows.

We have new terminology: SPL – Shared Parental Leave, ShPP – Statutory Shared Parental Pay, Continuous Leave –  a period of leave in one block, e.g. four weeks, Discontinuous Leave – a period of leave arranged around when an employee will return to work, e.g. working every other week for three months and SPLIT day – a Shared Parental Leave In Touch Day.

SPL does not arise unless the mother reduces her maternity or adoption leave of 52 weeks. If she does then this opens up the possibility of her and/or her partner opting in to SPL and taking any remaining weeks as SPL. This means that the partner could commence SPL while the mother is still on maternity leave. For example a mother might choose to reduce the maternity leave period by 10 weeks, thereby reducing the overall period to 42 weeks. That means that 10 weeks could be used by the partner as SPL while the mother is still on maternity leave.

In a more extreme example a mother must take at least two weeks as maternity leave following the birth of a child (four weeks for manual work in a factory environment). She might choose to convert all her remaining maternity leave to SPL in which case both she and her partner could take nearly six months each as SPL at the same time. Alternatively the mother might return to work after three months and thereby give the partner nearly nine months’ SPL.

To qualify a mother must have a partner and have curtailed or given notice to reduce her maternity or adoption leave or her pay or allowance (if not eligible for maternity or adoption leave). A parent intending to take SPL must be an employee, share primary responsibility for the child, have properly notified the employer of the entitlement and to have provided the necessary declarations and evidence. In addition he or she must satisfy the continuity of employment test (at least 26 weeks at the end of the 15th week before the child’s due/match date) and the employment and earnings test (in the 66 weeks prior to the due/match date worked for at least 26 weeks and earned an average of £30 per week in any 13 weeks.

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right to request flexible working extended to most employees

clocking_onMost employers are familiar with the procedure to be applied when dealing with flexible working applications which have been around, on a legislative basis, since 2003. Initially the right to request flexible was confined to the parents of children under six or of disabled children under 18.

In 2007 the right was extended to carers of adults and in 2011 to parents of children under 18. With effect from 30 June 2014 the right is extended to all employees who have 26 weeks’ continuous employment at the time the application is made. Only one application per year may be made.

As a result, now is a good time to recap the key elements of fairly handling a request for flexible working. The first thing to bear in mind is that the entitlement is to request flexible working rather than an entitlement to flexible working on request. Nonetheless, employers must take request for flexible working seriously. What does that mean in practice? If an application is refused then the employer may be required to justify the decision, both in terms of the steps taken to consider it and the substantive reason for rejection.

According to the ACAS draft guidelines valid reasons for rejection may include:

  • Burden of additional costs
  • Inability to reorganise work among existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Detrimental effect on ability to meet customer demand
  • Insufficient work for the periods the employee proposes to work
  • Planned structural change to the business

However, employers should bear in mind that it is not enough to give the reason; if called upon to do so the employer may be required to justify the reason.

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extended parental leave to be postponed for one year

It had been expected that the government would implement updated provisions of the Parental Leave Directive requiring member states (if they had not already done so) to extend the period of unpaid parental leave available to parents by 5 March this year.

Our current Regulations provide that, once an employee has completed one year’s employment with an employer, he or she can take up to 13 weeks’ unpaid parental leave for each child born or adopted. The leave can be taken at any time up to the child’s fifth birthday (or five years after placement in the case of adoption).