Quick fire – January 2021

Furloughing parents and carers, gender pay gap reporting and tribunal hearings during lockdown are all covered in this month’s Quick fire.

Furloughing parents and carers

On 5 January 2021, HMRC updated its guidance on the Coronavirus Job Retention Scheme (CJRS) to clarify that employees unable to work due to caring responsibilities, including caring for children at home due to the closure of schools or childcare facilities and caring for a vulnerable individual in the household, were eligible to be furloughed by their employer. Previously, the guidance referred to caring responsibilities as including employees needing to look after children, but it did not expressly refer to the closure of schools or childcare facilities.

Both the TUC and the Labour Party has called on the Government to provide greater support for parents during the third national lockdown, with Shadow Chancellor Anneliese Dodds calling for better promotion of the CJRS to increase employer awareness of how it can be used to support working parents with childcare responsibilities. According to a survey conducted by the TUC, 71% of working mothers who asked to be furloughed for childcare reasons following the closure of schools in January had their requests refused. However, the Government has resisted calls for a legal right for working mothers to be furloughed, and it remains at the employer’s discretion whether to furlough working parents with childcare responsibilities.

Employers should be aware that a refusal to furlough an employee with childcare responsibilities could potentially result in a claim for indirect (or even direct) sex discrimination. As far as we are aware, any such claims have not yet been heard in the employment tribunals and it is by no means clear that any such claims would succeed, but it is something to watch out for in the months to come.

Gender pay gap report

The deadline for employers of 250+ employees to report on their gender pay gap is fast approaching: 30 March 2021 for public sector employers; 4 April 2021 for private sector employers. The requirement for large employers to report on their gender pay gap was suspended in 2020.

In December 2020, the Government Equalities Office (GEO) published its annual report of employers’ understanding of the gender pay gap and their experiences of complying with the duty to report, based on research conducted shortly after the 2019 reporting deadline.

The report suggests an increased understanding of the gender pay reporting obligations, with 89% of respondents reporting a ‘good understanding’. However, only 23% of respondents identified their gender pay gap as a high priority issue. 73% of employers provided an explanation for the reasons for any gap, with 44% of resulting actions focused on offering or promoting flexible working as part of wider equality and diversity priorities. Only 47% of employers reported that their board were taking specific action to address any gender pay gap.

Tribunal hearings during lockdown

The Presidents of the Employment Tribunals in England and Wales and in Scotland have both issued statements to clarify arrangements for hearings in light of the latest lockdown announcement.

Attendance at in-person hearings is still permitted, so hearings already scheduled to go ahead on this basis will still take place unless the parties are otherwise notified. Tribunals will examine listings to see if any scheduled in-person hearings can be converted to hybrid or remote hearings. The decision over the format of any hearing is a judicial one, but the aim will be to facilitate remote hearings wherever possible using Cloud Video Platform (CVP). In England and Wales, the President has stated that physical attendance at tribunal will be the exception, and only where necessary in the interests of justice.

Our team of employment lawyers are very well used to attending remote hearings and will be happy to provide you with guidance on the procedure should you have any questions.

These articles are from the January 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.