Employment Law: Flexible Working, Gender Pay Gap, GDPR | October 2021

Employment Law: Flexible Working, Gender Pay Gap, GDPR | October 2021

This month, there have been several key Employment Law topics in the news that we felt were important to bring to the attention of employers.

Read on for all the details...

1. Right to Request Flexible Working - Consultation

On 23 September 2021, the government launched a consultation entitled “Making flexible working the default”. The consultation considers a number of reforms to the existing flexible working legislation, including making the right to request flexible working a day one right as opposed to the current requirement to have 26 weeks’ continuous service.

The consultation details five proposals for reviewing the existing legal framework to better support the government's objective of making flexible working the default. These are:

  • making the right to request flexible working a day one right
  • whether the eight business reasons for refusing a request all remain valid
  • requiring the employer to suggest alternatives if they plan to refuse a request
  • the administrative process underpinning the right to request flexible working
  • the right to request a temporary flexible arrangement

The current eight business reasons referred to above are:

  1. the burden of additional costs
  2. detrimental effect on ability to meet customer demand
  3. inability to reorganise work among existing staff
  4. inability to recruit additional staff
  5. detrimental impact on quality
  6. detrimental impact on performance
  7. insufficiency of work during the periods the employee proposes to work
  8. planned structural changes

More detailed information on the government’s proposals can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1019526/flexible-working-consultation.pdf

The closing date for this consultation ends on 1st December 2021 - individuals and businesses are encouraged to engage with the consultation at: https://beisgovuk.citizenspace.com/lm/flexible-working/

2. Gender Pay Gap Reporting

Employers with 250 or more employees are normally required to publish their gender pay gap report by April. The deadline for private-sector and voluntary-sector employers is normally 4th April, while for public-sector employers it is 30 March. However due to Covid-19, all employers now have until 5th October 2021 to report their gender pay gap information.

Various reports show there is an expectation, due to Covid-19, that this year will show a widening of the gap with many women having to reduce their working role due to limited childcare options. Furthermore, there is the impact on female dominated sectors such as hospitality. It is clear that women’s earnings and careers have been disproportionately impacted by the pandemic.

3. GDPR - Data Subject Access Requests (DSAR)

First Choice Selection Services Limited – Enforcement Notice September 2021

This relates to a DSAR from an individual who had also brought a tribunal claim against First Choice Selection Services Limited. The company refused to respond to the DSAR when they were instructed to do so by the employment tribunal. In response the individual made a complaint to the Information Commissioners Office (ICO) that the employer was failing to comply with the DSAR. The ICO agreed and an enforcement notice was made against the employer with a failure to comply subject to a fine of up to £17,500,000 or 4% of global turnover - whichever is the higher.

The ICOs ruling can be found at: https://ico.org.uk/action-weve-taken/enforcement/first-choice-selection-services-limited/

Again, this shows both the importance of responding to a DSAR and within the statutory timelines. DSAR are being used more and more in employment tribunals and by individuals in dispute with their employer to lever influence on settlements. Therefore, it is important that employers have systems and processes in place to be able to respond DSARs.

4. Furlough Scheme Comes to an End

As many employers and individuals will be aware, the government''s furlough scheme came to an end on 30th September. The latest figures show that this will impact on approximately 1.5 million individuals who were still on furlough at this date. This is going to be a major challenge for employers as they will have to consider how to deal with this with potential redundancies, short time working etc. just as the economy is starting to move forwards but still significantly below pre-pandemic levels. This coupled with changes in working practices, such as increases in hybrid working and more flexible working requests, means that many employers in all sectors will be looking at some form of reorganisation and restructuring.

It’s going to be a busy time for many HR professionals over the next few months as organisations plot a way through the short-term problems that they face.

Our recommendations:

It is important to review your HR policies and practices, to ensure that key changes are fully incorporated to address some of the many challenges now facing employers.

NB: This information is for general guidance only and is not legal advice. It should not be regarded or relied upon as a complete or authoritative statement of the law. However, if you have any HR issues on this or any other HR matters and would like to talk them through with our team, please don't hesitate to contact us.

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