This month, Halebury employment lawyer Polly Jeanneret blogs about gender data and employee share schemes.
New reporting rules for listed companies come into force this week. But this isn’t financial data that they are being asked to report on; this is gender data. Companies will be required to produce figures showing the numbers of men and women on the main board, the number of female managers and employees. It is a noble cause to get sex discrimination in the workplace and diversity back on a crowded agenda. However, as many in HR will know, in the employment tribunals, sex discrimination never came off the agenda. According to the most recent statistics, there were 14,000 contested sex discrimination claims for between April 2012 and June 2013 (and that doesn’t include the majority of cases which settled before the hearing, these were the ones which went all the way to the Tribunal). But if you look closely, the number of claims has in fact fallen slightly in recent years. The question then is: with the new gender data which will be available will we see a reverse in that trend or does the fall in numbers actually mean signs of change (albeit small) in equal opportunities between men and women and the data may be unnecessary?
One item which is not getting anyone excited, in contrast, is George Osborne’s employee share ownership scheme which went live at the beginning of autumn. The idea is that employees take a share of a company in return for giving up their unfair dismissal rights – and with no capital gains tax impact. We have seen zero interest here among clients of Halebury. Why not? We believe it is in part because the scheme is quite complex; for instance, the shares need to be valued and the employee involved needs to get separate legal advice. But also enterprises are preferring to grow by using alternative ways of recruiting staff. In particular, we are seeing the use of free-floating self-employed contractors instead of employed staff. This is fine as long as the enterprise has assessed the risks of doing this. Will their self-employed status stand up to scrutiny if they work wholly and exclusively for that enterprise? It is a complex question involving examining the particular arrangements in place between the contractor and the enterprise and seeing whether they could fall into categories of worker, employee, agency worker or bona fide self-employed. But it is an exercise worth pursuing in order to understand the potential liability if an enterprise is found to have wrongly categorised its staff.
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