Are organisations playing by the gender pay gap reporting rules?

As employers’ 2017 gender pay gap statistics slowly drip in to the government’s website, I and my fellow gender pay gap nerds are reading the reports with interest. With only around 1,600 reports in so far and approximately 8,000 left to go, with only a few days until the deadline, it is a little frustrating, but perhaps inevitable, that so many employers are leaving it so late.

Luke Menzies writes this article for

Read more…

Newsflash: Happy Holidays! Pay for term-time workers

Can the holiday pay rate for term-time workers be legally calculated on the basis of 12.07% of annual pay?

No, says the EAT in Brazel v The Harpur Trust, available here.

The EAT held that the correct method is to base the rate on a 12-week average of pay from weeks actually worked (so ignoring the out of term weeks). This is the case even though it means term-time workers will be paid proportionately more holiday pay than a worker working throughout the year.

This is an important decision. Holiday pay for term-time workers is often calculated as a percentage of total statutory holiday entitlement (5.6 weeks) over the remaining number of working weeks in the standard working year (46.4 weeks (which is 52 weeks minus 5.6 weeks)). This results in a holiday payment rate of 12.07%.

The EAT has found this approach to be incorrect. We would recommend therefore that any of our clients who use this method of calculation should instead calculate holiday pay for term-time workers by taking a 12-week average of pay from weeks actually worked prior to the holiday, and ignoring the out-of-term weeks.

We will provide further detail on this case in our March 2018 Newsletter, so watch this space…


Holiday pay for casual or term-time workers continues to be a complex issue. Should you have any concerns about this please do email or call 0117 325 0526.


Employment law, equal pay and taking on the big law firms – article in FE news

Luke Menzies is interviewed in this article in FE news.  Luke explains how he set up Menzies Law and what makes us special.  Read the answers to these questions:

  • Menzies Law has blazed a trail as one of the first niche employment practices, specialising in working with the FE sector.  What makes Menzies Law different?
  • Colleges get a lot of security from knowing that they’re being advised by a big, well-known law firm. Why should they consider a smaller niche practice?
  • Menzies Law works with some well-known colleges but has relatively few lawyers. How does this benefit college clients?
  • An expert on Gender Pay Gap – why focus on this?
  • Why is this so important for FE colleges?
  • What can colleges do?

Read more here…



Government reforms (1): New Year, New Law

In order to welcome in 2018, below is a round-up of the most important employment law changes this year.   We’re sure to be covering many of these events in more detail in our Newsflashes and Newsletters so watch this space…


The Gig Economy and Ongoing Employment Status Cases

We will likely continue to see high-profile employment status cases in 2018.  These include the appeal in the Pimlico Plumbers case, which the Supreme Court is scheduled to hear in February 2018.  The Court of Appeal decision in Mr Y Aslam Mr J Farrar and Others v Uber is expected later in the year.  For further detail on these important cases please see our updates here.

Brexit and EU Immigration

A Home Office White Paper on immigration and a draft new Immigration Bill are expected possibly as early as the first quarter of 2018.

This should provide further clarity in relation to the rules governing European nationals’ right to continue to live and work in the UK following Brexit. We hope it will also give details about the rules governing the basis on which European nationals will be able to move to the UK following Brexit, details of which have not yet been released.

1 APRIL 2018

Increase in National Minimum Wage

The new rates are as follows:

  • Age 25 and over:  National Living wage increase from £7.50 to £7.83;
  • Age 21 to 24 (inclusive): increase from £7.05 to £7.38 per hour;
  • Age 18 to 20 (inclusive): increase from £5.60 to £5.90 per hour;
  • Age 16 or 17 (inclusive): increase from £4.05 to £4.20 per hour;
  • Apprentice rate:  increase from £3.50 to £3.70 per hour; and
  • Accommodation offset: increase from £6.40 to £7.00 per day.

4 APRIL 2018

Mandatory Gender Pay Gap (GPG) Reporting Deadline

All private and voluntary sector employers with 250 or more employees in England, Wales and Scotland must now publish information on their gender pay gap by 4 April 2018 under the GPG legislation.

All listed public sector employers with 250 or more employees in England must publish the same information by 30 March 2018 under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

For more detail on the GPG requirements, see our updates here.

6 APRIL 2018

Increase in Statutory Payments:

The weekly rate of:

  • Statutory Sick Pay (SSP) will rise from £89.35 to £92.05;
  • Statutory Maternity Pay (SMP) and Maternity Allowance will rise from £140.98 to £145.18; and
  • Statutory Paternity Pay (SPP), Statutory Shared Parental Pay (ShPP) and Statutory Adoption Pay (SAP) will rise from £140.98 to £145.18.

To be entitled to these statutory payments, the employee’s average earnings must be equal to or more than the lower earnings limit.  The lower earnings limit is increasing from £113 to £116 in April 2018.

Taxation of Termination Payments – PILONs:

The Government has resolved the uncertainty over whether a payment made in lieu of notice (PILON) should be taxed.  The Government has provided that all PILONs, whether contractual or non-contractual, are taxable and subject to Class 1 National Insurance Contributions (NICs). The taxable PILON needs to be calculated on the basis of basic pay only.

This change comes into effect on 6 April 2018.

The way in which a standard termination payment is taxed will also change, but not until 2019. Currently, the first £30,000 of a termination payment is payable without deduction of income tax or NICs. Any amount over £30,000 is subject to income tax, but currently not NICs. The proposed change is that, in future, payment in excess of £30,000 will be subject to employer’s NICs (but not employee’s NICs).

This had been due to come into effect from April 2018. However, the Government has now postponed the implementation of this change to April 2019.

For further information on these changes, see our updates here.

25 May 2018


The General Data Protection Regulation (GDPR) is set to come into force on 25 May 2018.

We have been regularly updating you about the new General Data Protection Regulation (GDPR), which on 25 May 2018 will replace the current EU Data Protection Directive and the Data Protection Act 1998.

For further detail see our updates here.

To the extent they have not already done so, employers should take steps now to assess the impact of the GDPR and prepare for its arrival.

Key themes of the new regime include:

  • Stricter requirements for obtaining consent from individuals before processing their personal data. These will make it very difficult to establish valid consent in the employment context, meaning that employers will generally wish to rely on other lawful bases for processing data.
  • A requirement to provide more detailed information to data subjects. This will require employers to have a thorough understanding of what and how employee personal data is being processed, and will necessitate existing employee data protection policies and/or privacy notices to be revised appropriately.
  • A new requirement for organisations to be able to demonstrate compliance with data protection principles, which will include maintaining an “accountability record” of processing activities.
  • Enhanced data subject rights, including, in addition to the subject access right already familiar to many UK employers, the “right to be forgotten”, the right to rectification and the right to object to processing in certain circumstances. These rights should be reflected in updated employee privacy notices.
  • A requirement for certain organisations to appoint a Data Protection Officer (DPO). Specifically, a DPO will be required for (1) most public authorities or bodies; (2) organisations whose core activities consist of processing and require regular and systematic monitoring of data subjects on a large scale; and (3) organisations whose core activities consist of processing special categories of personal data and personal data relating to criminal convictions and offences (i.e., what we know currently as “sensitive” data) on a large scale.
  • New cyber security and data breach notification obligations requiring higher standards of cyber security and personal data breaches to be reported to the relevant supervisory authority without undue delay and within 72 hours where feasible. From a human resource perspective, organisations may wish to establish a dedicated breach response team and train personnel to ensure prompt escalation of and response to any breach incident.
  • New obligations on “processors”, meaning that employers should review the contracts they have with payroll processors, insurers and other suppliers to the HR function.

Also expected 2018:

Parental Bereavement (Pay and Leave) Bill: this Bill is making its way through Parliament. This is a Private Members’ Bill, but has attracted Government backing so is likely to become law. If passed, the Secretary of State will have power to make regulations to give at least two weeks’ paid leave to employees who lose a child below the age of 18 (including a still birth after 24 weeks).

Race pay gap reporting:  The Conservative Party election manifesto indicated that it would introduce mandatory race pay gap reporting for large employers, although no further details are available.

Cap on public sector exit payments:  We are expecting an announcement on implementation dates for the new cap on public sector exit payments and rules on repayment where someone is reemployed within 12 months. We understand the Government also still intends to implement further reforms.

Statutory sick pay:  The Government intends to consult on reforms to statutory sick pay, in particular around phased returns to work.  It will consider recommendations that SSP should be available to all regardless of income and should accrue based on length of service. It will also consider the Taylor Review recommendation that there should be a `right to return’ following sickness absence.

Grandparental leave: This was originally expected to be introduced in 2018 (see our updates here). A consultation on how to extend Shared Parental Leave and Pay to working grandparents was expected in May 2016, but was delayed due to the EU referendum. The Government is yet to make any further announcement as to whether this policy will be taken forward. Maybe 2018 is the year.

Lindsey Newman joins our team

We are delighted that Lindsey Newman has recently joined us as our new Business Development Consultant. Many of you in the HR world may know Lindsey from her many years as co-owner/director at Purple House, the HR recruitment specialists. With her wealth of both business knowledge and contacts in the HR sector, Lindsey will be contributing strongly to our bold growth plans.

Government reforms (3): Data protection – GDPR guidance

What do we already know?

We have been regularly updating you about the new General Data Protection Regulation (GDPR), which on 25 May 2018 will replace the current EU Data Protection Directive and the Data Protection Act 1998.

For further detail see our updates here and summary of the new law above at New Year, New Law.

What’s new?

1. The European Commission has:

  • published guidance on the GDPR (available here); and
  • launched a new online tool dedicated to SMEs (available here).

The guidance outlines what the European Commission, national data protection authorities and national administrations still need to do to bring preparations for the GDPR to a successful conclusion.

The aim of the new online tool is to raise awareness of the GDPR and help individuals, businesses (in particular SMEs) and other organisations to comply with and benefit from the new data protection rules.

2. The Information Commissioner’s Officer (ICO) has updated its guide to the GDPR. The following changes have been made to the guide:

  • The section of the guide dealing with personal data breaches has been expanded; and
  • New pages have been added to the lawful basis section of the guide, covering contract, legal obligation, vital interests and public task.

The updated guide is available here.

The ICO has also published more detailed guidance (available here) on documentation outlining the new requirements under Article 30 of the GDPR in relation to the documentation of processing activities. This sits alongside the guide.


Case update (2): Whistleblowing detriment – is it personal?

Summary:  Does someone need to be personally motivated by a protected disclosure in order to be found to have subjected a whistleblower to a detriment?

Yes, says the EAT in Malik v Cenkos Securities Plc available here.

Facts: The employee, Dr Malik, was employed as a senior research analyst by the employer, Cenkos Securities PLC, a specialist securities firm.

During his employment, Dr Malik had:

  1. made protected disclosures; and
  2. was the subject of disciplinary investigations into potential conflicts of interest.

The first potential conflict of interest was that Dr Malik’s dealings with a corporate client of the firm conflicted with his wife being a shareholder of that client.  Dr Malik received a written warning for this.  The second, later, concern in respect of conflict of interest, was that Dr Malik held shares in a company which he had not disclosed, in breach of FCA requirements and the firm’s rules.

The investigation into the alleged non-disclosure of shares was led by the Head of Compliance, who suspended Dr Malik. After some correspondence between the employer and Dr Malik’s solicitors, Dr Malik resigned, alleging that he had been subject to intolerable treatment amounting to a fundamental breach of contract. The resignation letter also suggested that he had been constructively dismissed on the basis that the sole or principal reason for his constructive dismissal was that he had made various protected disclosures.

Dr Malik brought a number of Tribunal claims including constructive unfair dismissal, automatic unfair dismissal and detriment on whistleblowing grounds. The Tribunal rejected all of these claims. On the point of causation in relation to the whistleblowing detriment claim, it found that the decision made by the Head of Compliance to investigate Dr Malik had nothing to do with the disclosures he had made.

Dr Malik appealed this decision to the EAT, arguing that the Tribunal had not considered that there may have been a “chain of command” leading the Head of Compliance to take detrimental action against Dr Malik, regardless of whether he had personal knowledge of the disclosures.

The EAT dismissed the appeal and held that personal knowledge of the disclosure and personal motivation were required in a detriment case. Therefore in cases of detriment, it would be unjust for an individual decision maker to be liable in circumstances where he or she personally was innocent of any discriminatory motivation.  This was the case even if the decision maker was acting on information tainted by another’s discriminatory motivation. As the Tribunal had made clear findings of fact that the Head of Compliance was the decision maker, and had nothing to do with the protected disclosures, that individual could not be liable for subjecting Dr Malik to a detriment for making protected disclosures.

The EAT noted, however, that where there was a claim for unfair dismissal on whistleblowing grounds (where liability for the dismissal will always lie with the employer) then it may be possible to impute the motivation of another in such cases (see our update on the case of Royal Mail Group Limited v Jhuti, available here). However, the same will not apply in a detriment case.

Implications:  This is helpful clarification that personal knowledge of the disclosure and personal motivation are required in a detriment case. The knowledge and motivation of others cannot be attributed to an innocent decision-maker who does not know about the protected disclosure.

Employers should keep written records of the decision-making process in these situations and carefully consider the make-up of any disciplinary panel before disciplining an employee who has previously made a protected disclosure.


Case update(1): Disability discrimination – careful what you perceive

Summary:  Can an employer discriminate directly because of a perceived disability?

Yes, says the EAT in Chief Constable of Norfolk v Coffey, available here.

Facts: Lisa Coffey was a police constable. Although she had some hearing loss which was marginally outside the range set for recruitment, she had passed a practical functionality test and was therefore allowed to join the police force.

In 2013 she applied to transfer to Norfolk Constabulary. She attended a health assessment, which found that her hearing was just outside the usual standards for recruitment. The medical adviser noted that Ms Coffey had been able to undertake an operational policing role and recommended that she have an at-work test. Instead, Norfolk Constabulary declined Ms Coffey’s request to transfer on the basis that her hearing was below the acceptable and recognised standard and it did not want to risk increasing the number of police officers on restricted duties.

Ms Coffey’s hearing loss did not meet the legal test of a disability as it had no substantial adverse effects on her ability to carry out normal day-to-day activities. Therefore Ms Coffey brought a direct disability discrimination claim at the Tribunal on the basis that she had been perceived to have a disability in the form of a progressive condition.  Ms Coffey said that this perception was demonstrated by Norfolk Constabulary’s concern that she would end up on restricted duties.

The Tribunal upheld Ms Coffey’s claim.  Norfolk constabulary appealed to the EAT.

The EAT agreed with the Tribunal’s decision and held that Ms Coffey could bring her claim on this basis.

The EAT held that:

  • an employer can discriminate directly because of a perceived disability; and
  • the treatment of Ms Coffey amounted to direct discrimination.

The EAT held that Norfolk Constabulary thought Ms Coffey’s condition could well progress to the extent that she would have to be placed on restricted duties. If it were to progress to that extent, then her condition would amount to a disability.  This meant that Norfolk Constabulary did perceive the Ms Coffey to be disabled.

In respect of direct discrimination, the EAT confirmed it does not require the employee to actually have a disability – only that they are treated less favourably because of disability. The provision is therefore sufficiently wide to cover a case where someone is treated less favourably because of a perceived disability.

The EAT held that the comparison would need to be with a hypothetical comparator who was a person not perceived to be disabled.  I.e. a person whose condition was not perceived as likely to deteriorate so that they would require restricted duties and who had the same abilities to do the job which Ms Coffey had.  This comparator would not have been treated in the same way. It was Norfolk Constabulary’s belief that Coffey’s hearing would deteriorate, which led it to reject her transfer request. Coffey had been treated less favourably because of the perception that she was disabled; therefore, she had been directly discriminated against.

Implications:  This is a helpful clarification of the test for perceived disability discrimination and what an employee has to show in order to establish the less favourable treatment was because of that perception.

The case also provides a useful learning point in that it is best to avoid making assumptions about someone’s abilities and instead rely on a proper assessment of their actual abilities. Norfolk Constabulary would have avoided expensive litigation if it had followed the medical advice to assess Ms Coffey’s actual abilities to perform the job.  By instead relying on an assumption that the condition might deteriorate in the future, Norfolk Constabulary unwittingly discriminated against Ms Coffey.

Government reforms (2): Employment status – Government response to the Taylor review

What do we already know?

We updated you in our July 2017 Newsletter Government reforms (1): Employment status – Taylor Review that the Taylor Review of Modern Working Practices had been published.  The Taylor Review made detailed recommendations for reform of UK employment law in respect of those who are not engaged as traditional employees, both in the “gig economy” and elsewhere.  For further detail on the background of this Review please see our updates here.

What’s new?

The Government has published its ‘Good Work’ plan (available here) in response to the Taylor Review of Modern Working Practices.

The Government has decided to take forward all but one of the Taylor Review proposals.  However, many of the plans are being progressed by way of consultation and may result in increased guidance rather than legislative change.  Therefore although recent press reports suggest that the Government has announced substantive changes to employment law, in fact there are few immediate changes.

Importantly, the one Taylor Review proposal not to be taken forward is to equalise National Insurance for employees and the self-employed. Therefore National insurance contributions for the self-employed will not be increased.

Summary of the Response

Measures that have been announced include:

  • Ensure day-one rights such as holiday pay and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hours workers;
  • Help enforce vulnerable workers’ rights to holiday pay and sick pay;
  • Introduce a right to request a ‘more stable contract’ (explained in the report as being a contract with more predictable and secure working conditions) for all workers including those on agency and zero-hours contracts. This goes further than the recommendation in the Taylor Review to allow zero-hours workers to ask for a secure contract after 12 months of work;
  • Make it easier for atypical workers to secure holiday rights by increasing the reference period to 52 weeks;
  • Make it easier for atypical workers to establish continuity of service by potentially extending the relevant break in service from one week to one month;
  • Extend the right to a written statement of particulars to all workers (rather than just employees);
  • Provide all agency workers with a clear breakdown of who pays them, and any costs or charges deducted from their wages. Also, seek evidence on the extent of the abuse of the ‘Swedish derogation’ that allows work-seekers to opt-out of equal pay entitlements; and consider repealing the laws which allow agencies to employ workers on cheaper rates;
  • Ask the Low Pay Commission to consider the impact of higher minimum wage rates for workers on zero-hours contracts;
  • Define ‘working time’ for flexible workers who find jobs through apps or online so they know when they should be being paid;
  • Ensure unpaid interns are not doing the job of a worker;
  • Launch a task force with business to promote awareness and take-up of the right to request flexible working;
  • Make sure new and expectant mothers know their rights;
  • Launch a new campaign to encourage more working parents to share childcare through shared parental leave;
  • Introduce a new naming scheme for employers who fail to pay Tribunal awards; and
  • Quadruple Tribunal fines for employers showing malice, spite or gross oversight to £20,000 and consider increasing penalties for employers who have previously lost similar cases.

Four separate consultations will be published on:

  • Employment status (available here): examining options, including new legislation, to make it easier for both the workforce and businesses to understand whether someone is an employee, worker, or self-employed.  Also  to determine which rights and tax obligations apply to them.
  • Enforcement of employment rights (available here).
  • Agency workers (available here).
  • Measures to increase transparency in the UK labour market (available here).

We’ll continue to update you on the progress of these measures and consultations in our Newsletters so watch this space…

February 2018 Newsletter

It’s February and the year may still be new but HR/Employment changes are coming up fast. We’re happy to meet the pace and keep you up to speed with all the changes coming up over 2018. Whether it’s the new data protection regime, gender pay gap reporting or employment status, the year ahead is certainly going to be significant for employment law.

In our case update this month we take a look at 1) whether an employer can discriminate based on a perceived disability and 2) if someone needs to be personally motivated by a protected disclosure in order to be found to have subjected a whistleblower to a detriment.

What we’ve been doing recently…

February may have been cold, dark and miserable but we’ve been powering away here at Menzies Law (flu and other viruses permitting).  It’s been non-stop on the Gender Pay Gap front of course, assisting our clients to get their GPG figures finalised and reported.  As this bulk of work starts to recede, we are now also having some very interesting conversations about the ‘what next’ with the GPG, in terms of how to take practical steps to reduce your GPG and your equal pay risks.   Next on the horizon will be race pay equality and indeed pay equality for all other types of protected characteristic too.  I shall be talking about little else for the rest of 2018 (sorry).

We have been delighted to welcome a new Business Development Consultant to our team, Lindsey Newman, whom many of you may know (more on that below).

Finally, we went up to The Smoke for a glitzy award ceremony in the Royal Exchange to collect our award of UK Regional Law Firm of the Year (Human Resources) 2018.  We were singled out as the most worthy regional-based law firm in the country (in our field of employment law) for this award, based on our innovations in terms of services and fixed fees.  Thank you again to all our clients to gave positive feedback to the market researchers which led to us being chosen for this award.

Luke Menzies

or call 0117 325 0921