Changes ahead with diversity and inclusion?

United Kingdom

HR teams and in-house lawyers should be aware of a number of recent Government announcements covering diversity and inclusion.  Changes under consideration include the introduction of carers leave, a mandatory duty on employers to prevent workplace harassment, a review of various family leave entitlements, and a new entitlement to workplace modifications for a wider category of employees who are not disabled and therefore cannot rely on their employer’s obligation to make reasonable adjustments.

Equality roadmap

The Government’s vision for gender equality in the UK has now been combined to form ‘Gender equality at all stages: A roadmap for change’. It is a holistic review of gender equality from education to retirement, identifying eight key drivers of inequality - with many relating to employment. In order to tackle gender inequality in the workplace, the Government intends to focus on low pay in identified sectors and occupations, career trajectory, and support for those with caring responsibilities.

The key proposals of the roadmap for employers are:

  • Tailored equality initiatives targeting sectors that are strongly associated with one gender, including health, education, retail, financial services, construction and engineering;
  • A consultation on Gender Pay Gap reporting to assess its effectiveness in exposing the causes of pay gaps, and employers’ progress in tackling them;
  • A national campaign to help employers understand how they can support staff to balance work and caring responsibilities;
  • Continued focus on encouraging businesses to offer and promote returner schemes after career breaks;
  • A review of the enforcement of equal pay legislation (with 2020 marking 50 years since the Equal Pay Act was introduced), including considering the circumstances in which mandatory equal pay audits could be appropriate and proportionate;
  • A consultation on employment rights for carers, including a new right to carers’ leave;
  • A new annual Gender Equality Monitor bringing together metrics from across the Government to monitor important gender equality issues in the UK; and
  • Reviewing the outcome of the recent consultation on redundancy protection during and after pregnancy and maternity leave.

Consultation on sexual harassment in the workplace

This Equalities Office consultation aims to address concerns about the coverage of sexual harassment protection in the existing legislation, following the Women and Equalities Select Committee report which recommended a number of changes. The consultation covers four main areas:

  • Whether there should be a mandatory duty on employers to protect workers from harassment and victimisation in the workplace;
  • How best to strengthen and clarify the law on third party harassment;
  • Extending the law to cover volunteers and also how best to protect interns; and
  • The possibility of extending the limitation period for bringing all Equality Act claims from three months to six months.

The consultation asks whether there is a need to change the law to include a preventative duty which, if enacted will require an employer to take all reasonable steps to prevent harassment of its employees. Enforcement is likely to fall within the Equality and Human Rights Commission’s remit, although an individual remedy is also being considered. It seems likely that the third party harassment provisions which were repealed in 2013 will be reintroduced, although the “three strikes rule” (two previous incidents of third party harassment were required before an employer could be held liable on the third occasion) may not be.

Proposals to support families

This consultation is looking at the different levels of support available to families through parental leave and pay arrangements and where the balance lies. The Government also wants to improve transparency by requiring employer’s flexible working and parental leave and pay policies to be made available to job applicants.

It is difficult to get a sense from this consultation document of what is really likely to change, as the questions are largely generic rather than focussed on specific potential changes, but at a high-level the options under consideration appear to include:

Pay and leave

  • Enhancing statutory paternity pay and changing the reimbursement models through which employers recover statutory payments from the state;
  • Extending the period of statutory paternity leave;
  • Enhancing the shared parental leave and pay scheme;
  • Changes to statutory maternity leave and or pay;
  • Reforming aspects of parental leave; and
  • A more radical move towards a single family leave set of entitlements.

Flexible working

As well as considering the publication of flexible working policies, the consultation also asks whether there should be a requirement for job adverts expressly to state whether the job could be done on a flexible basis. Options under consideration include a simple statement “happy to talk flexible working” or a link to the organisation’s approach to place, hours and time of work. 

Consultation on reducing ill health related job losses

This is a lengthy document covering many aspects of support for employees with long term medical conditions. Of particular interest in the HR sphere is that the Government is seeking views on potential changes to the current legal framework to encourage early and sustained employer support, including the introduction of a right to request workplace modifications for employees not covered by the duty to make reasonable adjustments for disabled employees in the Equality Act 2010.

Other proposals published by the Government in the last few weeks include consultations on a new single enforcement body for employment rights and on measures to address so called “one-sided flexibility”.

Confidentiality clauses and enhanced redundancy protection for pregnant workers and new parents

Finally, the Government has also issued responses to two consultations held earlier in the year. As a result of concerns regarding the misuse of Non-Disclosure Agreements (NDA’s) particularly in sexual harassment cases, legislation will be introduced regulating the content of confidentiality clauses in settlement agreements and contracts of employment. It will be explicit in the wording of the confidentiality clause that the clause will not prevent an individual making a disclosure to the police, regulated health and care professionals or legal professionals.  The other consultation response involves enhanced redundancy protection for pregnant workers and new parents. This will extend the current priority rights in a redundancy situation under Regulation 10 of the Maternity and Parental Leave Regulations to provide women on maternity leave who are at risk of redundancy with a suitable alternative vacancy where one is available. The new provisions will extend the protected period for a further 6 months once the new mother, (or a parent taking adoption leave, or shared parental leave) returns to work.  In relation to next steps, there is no specific time frame for when these changes will come into force, both response documents refer to changes taking place when parliamentary time allows.