Key employment law updates | April 2022

Neurodiversity in the workplace

In March, Neurodiversity in Business (NIL) was launched to support neurodiverse employees in the workplace and create awareness for employers as to the benefits of neurodiversity in the workplace. This is a business forum and industry group for organisations to share industry good practice on neurodivergent recruitment, retention and empowerment.

It is estimated around 15-20% of the population are neurodivergent – which covers conditions such as Autism, ADHD, Dyspraxia and Dyslexia. Neurodivergent employees can need additional support, ranging from reasonable modifications such as software assistance to providing particular working environments. Providing such modifications can assist and contribute to enabling a more sustainable workforce. Employers are increasingly recognising benefits of a neurodiverse workforce and what different attributes such employees can bring.

Neurodiverse employees can be protected under the Equality Act 2010 as these conditions can constitute a disability for the purposes of the act. As such, employers need to be aware of providing reasonable adjustments and not to treat such employees less favourably, whether directly or otherwise.

There is helpful guidance available for certain neurodiverse conditions, including here in relation to employing autistic people.

Inclusive Britain report – Ethnicity pay gap reporting

On 17 March 2022, the Government published its Inclusive Britain policy paper which confirmed that ethnicity pay gap reporting would not be introduced "at this stage", as they do not want to impose reporting burdens while businesses are still recovering from the pandemic. However, the Government will look to support employers with voluntary reporting by issuing new guidance. This new guidance is expected in summer 2022 and will:

• Encourage employers to publish data based on specific ethnic groups rather than broader categories, where appropriate. The Government recognises that reporting will differ to the gender pay gap, as there will be more than two categories.

• Include case studies from businesses who already report their ethnicity pay gap and set a benchmark for what a good action plan to address the disparities looks like. It is expected that businesses who decide to voluntarily report should produce a diagnosis and action plan which details the reasons for disparities and the steps to address them.

While ethnicity pay gap reporting may not become mandatory from a legislation perspective in the near future, businesses may still face pressure from investors who are conscious of ESG credentials to voluntarily report. It will therefore be important for businesses to keep up to date with the BEIS guidance on voluntary reporting and ensure they are following any such guidance appropriately.

Legal action against Uber in respect to Sharia compliant pension arrangements

The App Drivers and Couriers Union ("ADCU") has commenced legal action against Uber in respect of its failure to provide Sharia-compliant pension arrangements. The argument from the ADCU is that there is a breach of the Equality Act 2010 by Uber as a result of the lack of inclusion and access to suitable pension options: a significant proportion of UK Uber drivers are estimated to be Muslim and many are unable to participate in the current pension arrangements, as some investments are not compliant with tenets of Islam.

It remains to be seen what will result from this action, but the potential effects on pension provision more generally could be significant. The Pensions Regulator ("TPR") has published a strategy in June 2021 to address the need to create a fairer and more inclusive culture across the pensions industry and is working towards addressing inequality among savers. TPR is therefore likely to expect employers to have more awareness of diversity in the workplace and take consideration of employees' religions and beliefs.