News and Insights
28 September 2016
So says the new law. Is your business compliant?
1 September 2015 saw the introduction of a range of legislation relating to sex discrimination and family friendly rights, making it essential for employers to identify and tackle discrimination in the workplace and get to grips with employee rights relating to maternity, adoption and parental leave as well as flexible working.
Whilst taking steps to comply with the new legislation may appear at first glance to be a time consuming and costly exercise, there is a strong business case for equality and diversity in the workplace. People want to work for employers with good working practices and to feel valued at work. Diversity in recruitment and training ensures that a business attracts and retains the talent it needs to be successful in increasing creativity and productivity. Conversely, perceived discrimination can lead to negative outcomes, lowers job satisfaction and results in higher work tension and greater absenteeism. A diverse workplace opens it to new opportunities, markets and ideas which will allow a business to improve its market share and broaden its customer base, in particular amongst customers who value such diversity and fair employment practices.
Start with an equality and diversity policy and an action plan or strategy to back it up. Set dates by which you will carry out training, with a view to improving communication and changing workplace behaviours. Review existing policies and procedures, particularly in relation to recruitment, promotion and redundancy, to ensure that they are compliant with your equality and diversity policy.
When it comes to recruitment, informal procedures including limited advertising, failure to provide a job description and person specification, lack of standard application forms and standard interview questions are a recipe for a discrimination claim. This could expose businesses to reputational damage, potential financial compensation awards of up to £10,000, legal costs and time wasted.
To ensure that your equality and diversity policy and action plan are working for your business, monitor your workforce by gathering individual personal information on the diversity of your potential recruits or existing employees and compare that information to other groups of employees in your business or the broader national market, to get an accurate picture of your workforce and identify any inequalities you need to address.
In terms of family friendly rights, the maternity leave entitlement offers a minimum level of protection: two weeks compulsory maternity leave plus six weeks unpaid where the employee’s length of service is less than 15 months and 16 weeks where the employee’s length of service is in excess of 15 months. Many large employers are likely to have in place maternity benefits well in excess of that now offered by the law. Small employers, particularly those who do not have the benefit of employing HR personnel, will need to familiarise themselves with the provision of the new legislation. In addition they will need to ensure that they have the necessary policies and procedures in place to prevent them falling foul of the law. The new legislation offers clarity to employers and employees in terms of what should happen when an employee wishes to return early from maternity leave, what is appropriate in terms of ‘keeping-in-touch’ and contact between the employer and employee whilst the employee is on maternity leave. Many small employers will benefit greatly from this as in our experience, difficulties frequently arise in this area because the employer is unsure as to what it appropriate in terms of contact whilst an employee is on maternity leave.
Statutory parental leave is a huge step forward for Jersey in terms of family friendly rights and will positively impact on many families, particularly those where the parents are unmarried or one of the parents is not the child’s parent. We have an increasing number of different family structures in our society and it is right that legislation is enacted to protect those family structures. We must remember that whilst family friendly rights were first introduced in the UK over 40 years ago, it was only in the last five years that Jersey recognised the right of illegitimate children to inherit from their father where he did not make a will providing for them.
The decision not to introduce shared parental leave at this point is, in our view, a sensible one. It can only be advantageous to Jersey to wait and see how shared parental leave, which was introduced in the UK in April of this year, progresses and review this as an option for us at a later stage.
The flexible working provisions provide for a statutory procedure which again gives a degree of certainty as to how such matters should be handled. The decision not to extend the right to request flexible working to all employees, just those with care responsibilities is in our view a good one, given that the legislation is aimed towards families.
It is very interesting to note that The Equality and Human Rights Commission reported in July 2015 that new research suggests that around 54,000 new mothers may be forced out of their jobs in the Great Britain each year.
These findings are based on a survey of over 3,200 women by the Commission, in which 11% of the women interviewed reported having been dismissed, made compulsorily redundant where others in their workplace were not, or treated so poorly they felt they had to leave their jobs. If replicated across the population as a whole, this could mean as many as 54,000 women losing their jobs each year. The survey is the largest of its kind, with a total of more than 6,000 mothers and employers across Great Britain taking part in interviews about their experiences and practices.
The local Employment & Discrimination Tribunal is gearing up for the Discrimination Law and the new amendments to it. It has employed new Chair people and increased the number of Tribunal rooms. It will be an inevitable consequence of the new law that more employment claims are brought against employers and given the nature of the new protected characteristics, it will be more difficult for employers to know that they are discriminating. Something as simple as asking a prospective female employee if they have children, could potentially become a problem in the future.
Whilst there may be a lot to take on, many organisations, including Viberts, are offering free training sessions to endeavour to assist businesses to ensure compliance with the new law. Viberts can provide training on this complex area of law.