- HR Bulletin - November 2021
HR Bulletin – November 2021
HR Bulletin – November 20211st November 2021 - Published by Kuits Employment team
Welcome to our newsletter for HR professionals and anyone responsible for people management, where each month we bring you all of the latest case law updates and best practice.
Furlough update now that the scheme has closed
HMRC updated its guidance to reflect the end of the furlough scheme. The updated guidance focussed on paying back furlough grants if they have been claimed in error.
The updated guidance confirms that it is possible for an employer to include all employees in a single claim period when calculating the amount that the employer has overclaimed in that particular claim period. This means if an employer has overclaimed for one employee, they can offset this by an amount equal to any amounts that have been underclaimed for another employee included in the same period.
The updated guidance reminds employers that it was a requirement of the furlough scheme that the employee receives a minimum of 80% of pay, therefore where an employer has underclaimed for an employee, they must rectify that shortfall.
The end of the scheme is likely to mark a new drive for HMRC investigations into potential misuses of the scheme. If you have any concerns that your business may have misused the furlough scheme at all then please contact a member of our employment team. You may also find it useful to watch our webinar where we focussed on how to deal with potential misuses of the furlough scheme. Watch here.
Gender pay gap figures likely to be skewed by furlough
The annual requirement for companies to report their gender pay gap data was suspended during the Covid-19 pandemic. The new deadline for reporting data has now passed (5 October 2021), however it is expected that furlough will skew this year’s figures. This year’s results could also indicate how the pandemic has impacted gender equality in the workplace.
When reporting their gender pay data employers are required to report pay for full-pay relevant employees, therefore furloughed staff will be excluded from the calculations, creating an incomplete and most likely altered result. This is particularly important given furloughed employees were more likely to be female than male: HMRC data from last year revealed that an additional 133,000 female employees were furloughed than males.
It is believed that this disproportionate effect on women will translate into an artificial increase in the average hourly rate of pay for women, given that those who are paid less were more likely to be furloughed. This year’s reporting could therefore produce pay gaps that are inaccurate. Employers are recommended to prepare and publish a set of shadow statistics which include data for employees subject to furlough, to provide a more realistic reflection of the company’s gender pay gap.
GDPR: Information Commissioner Office’s (ICO) Data Sharing Code of Practice comes into force
The Code, which came into force on 5 October 2021, explains the requirements of data protection legislation and advises employers how to share data safely and responsibly. The previous data sharing guidance was published in 2011, before the introduction of GDPR and enormous changes with technology.
The Code aims to guide employers through the practical steps they must take to share data whilst protecting privacy of individuals. It also aims to reject misunderstandings about data sharing that currently exist. The Code does not impose further restrictions on data sharing, but helps employers comply with the legal obligations that exist under data protection legislation, for example by way of its ‘good practice’ recommendations.
Please contact Kuits if you need help understanding the new Code of Practice or assistance with any data protection matters.
Case law updates
Pitcher v University of Oxford – justifying a compulsory retirement age
Facts: Mr Pitcher was a well-respected academic working for Oxford University. In line with the University’s Employer Justified Retirement Age he received notification of his retirement date, at which point he would be 67 years old. However, he asked to remain employed beyond this date but his request was rejected by the University.
Disgruntled with this Mr Pitcher brought claims of unfair dismissal and age discrimination. His claims were unsuccessful at the Employment Tribunal and so he appealed to the Employment Appeal Tribunal.
Decision: Mr Pitcher’s appeal was dismissed and the Employment Appeal Tribunal found in favour of the University holding that Mr Pitcher had not been subject to age discrimination, nor had he been unfairly dismissed.
Whilst the University’s retirement policy did discriminate against older employees, it was found that their policy could be justified. The aim of the retirement policy was to create equality and diversity at the University. The academic staff were almost entirely male and above the age of 60 and the University wanted to create opportunities for female and younger academic staff. The retirement age of 67 was selected by a high-quality panel and decided following consultations with staff and unions, so the Tribunal held the policy to be justified, particularly as other alternatives to increasing diversity were expensive or unviable.
Comment: The Tribunal commented that this decision applies to any case where an employer is seeking to justify what would ordinarily be a discriminatory policy or decision, rather than just applying to compulsory retirement policies. Therefore, where employers are relying on what would ordinarily be discriminatory policies or making at face-value discriminatory decisions they need to carefully consider whether such a policy or decision can be justified and collate evidence to establish justification for the treatment.
IX v Wabe eV and MH Müller Handels GmbH v MJ – Preventing employees from wearing religious symbols in the workplace
Facts: Both employees were Muslim women working in Germany, both of whom were suspended from their jobs for refusing to remove their headscarves when asked. Their employers argued that wearing a headscarf breached their workplace policy of political, philosophical and religious neutrality. Both women brought direct religious discrimination claims which were referred to the Court of Justice of the EU (CJEU).
Decision: The CJEU ruled that employers can prohibit employees from observing religious symbols, including headscarves, to maintain a neutral image in front of its customers. The Court held that a policy would not amount to direct discrimination if it is applied to all beliefs equally and all employees are held to the same standard. In this case the employer required another employee to remove a religious cross, demonstrating equal treatment.
Comment: Whilst, following Brexit, CJEU decisions no longer bind English courts, they are still influential and an English tribunal or court may have regard to this case.
The case demonstrates the importance of applying workplace policies equally to every employee, without fail. If an employer wishes to impose a religious neutrality policy, they should ban all displays of religion (for example imposing a complete ban rather than simply prohibiting more obvious, large-sized symbols) to prevent claims of discrimination.
If you need advice on any of the updates included in this bulletin then please contact a member of the Kuits Employment team here.