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Employers' employment law updates
We produce a periodic e-newsletter for employers aimed at giving you pragmatic and relevant updates and information.
The death knell for gagging clauses?
The most common place for gagging clauses is in settlement agreements. Often, these are just routine – Don’t make any derogatory comments about us or our staff or our group companies. Employers who have had a dispute with an employee, typically won’t want to pay out a settlement sum, only to find the employee is spreading details of the dispute or grievance far and wide.
But, this kind of clause is increasingly coming under focus, after well publicised cases of corporations gagging the victims of harassment, in what are also known as Non-Disclosure Agreements or NDAs. If an organisation instructs a solicitor to draw up a settlement agreement, they will now be much more cautious of gagging clauses. They will include provisions setting out in what circumstances the employee can say whatever they want (for example, to regulatory authorities). This is because the Solicitors Regulation Authority has pointed out to solicitors that, if they draft wide gagging clauses, this could be unprofessional conduct, which means that the solicitor can be hauled up on a disciplinary charge.
The Commons Women and Equalities Committee has now recommended that the Government should:
- ensure that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination
- require standard, plain English confidentiality and non-derogatory clauses in settlement agreements, and ensure that these clauses are suitably specific about what information can and cannot be shared and with whom
- strengthen corporate governance requirements to make employers meet their responsibilities to protect those they employ from discrimination and harassment
- require named senior managers at board level to oversee anti-discrimination and harassment policies, and the use of NDAs in discrimination and harassment cases
There is also a recommendation to make employers pay the cost of employees seeking legal advice on and of negotiating the terms in a proposed settlement agreement, regardless of whether the agreement is eventually signed. Typically, employers only currently offer enough money to cover the advice on the settlement agreement, not renegotiation of its terms. And usually employers will not now pay these fees unless the individual signs the agreement.
So, managers and HR teams need to be aware that laws could soon be cracking down on their use of NDAs. Employers who are currently committed to Corporate Social Responsibility will want to develop policies on this before being forced to do so. These developments do beg the question as to how easy it will be to settle harassment and discrimination claims in future.
To access the Women and Equalities Committee recommendations, click here
Posted June 2019
Updating employment contracts
Now is the time for employers to be revising staff contracts to be ready for new law which comes in on 6 April 2020, to avoid a last minute scramble.
There is actually no legal requirement for a written contract of employment, but there is a legal requirement to provide all employees with certain information about what their terms of employment will be. This information is called “employment particulars” in the legislation. Most businesses include these employment particulars in a contract of employment which includes protections for the employer.
There are three important changes coming in next year.
1. The list of “employment particulars” which the business must give the individual is extended.
2. Most of the information must be provided to the individual no later than the start of employment. Currently, the business must provide the information within two months of the start of employment. (Some employers now delay giving the employee any information in writing until they see whether the employment is going to work out. This is not a good idea and will become unlawful.)
3. The “employment particulars” must be given, not only to all employees, but also - and this is new - to “workers”. The concept of what a “worker” is, is not an easy one. It includes employees, but also anyone else working for the business who provides the services themselves, as an individual (rather than having a team doing the work), and who is not a business in their own right. There have been some recent high profile cases about the difference between those who are self-employed and those who are workers. For example, drivers working for the private hire car service, Uber, have been found to be “workers”, not self-employed. Businesses will need to analyse any individuals working for them, who are not already regarded as employees, to try to assess if they are workers or self-employed. This is not necessarily an easy task.
To elaborate more on point 1, the new employment information which will need to be included in the employment particulars is:
- Normal hours of work, the days of the week the worker is required to work, and whether or not such hours or days may be variable, and if they may be, how that variation is decided
- Any paid leave over and above paid holiday and sick leave. Presumably, this could include family friendly leave
- All benefits provided by the employer for the worker. This may be problematic because some businesses want to leave some benefits as being discretionary and non-contractual.
- Any probationary period including any conditions and its duration. Presumably, this will still allow the employer to have the right to extend the probationary period if required
- Any training entitlement provided by the employer. The particulars must also state any part of the training entitlement which the employer requires the worker to complete, and any required training for which the employer will not bear the cost.
Employers will also need to think about their disciplinary and grievance procedures which are currently usually drafted so that they only apply to employees. Under the new Regulations, the employer is required to specify details about any disciplinary and grievance procedures applicable to workers, not just employees.
This does not necessarily seem to mean that the business must have disciplinary and grievance procedures applicable to workers (as opposed to employees) but the business will need to think about this point.
What about existing staff? The new provisions only apply to staff who start from 6 April 2020. However, existing staff members can request up to date particulars, at any time, including within three months of their employment ending. The business will then have a month to provide them with the information. Therefore, if businesses are reviewing their conditions of employment generally, it makes sense to include the new information for everyone.
NB From 6 April 2019, all businesses have become required to provide workers, as well as employees, with an itemised pay statement. So this requires the same analysis of what non employees may be “workers”.
Posted June 2019
Encouraging and accommodating employees with disabilities
At the January meeting of the South Oxon HR Network, we welcomed Adrian Ward from the Business Disability Forum which helps organisations get “disability smart”. He talked to us about best practice to encourage people with disabilities to apply to your organisation for jobs and to support them in post.
At least one in five people have a long-term medical condition, so this helps organisations tap into talent which they may otherwise be missing out on. Tenders now also require a demonstration of corporate social responsibility.
Here are some pointers:
- Most people with disabilities do not identify as a disabled person. They are unlikely to notify their medical condition in the recruitment process or at the job offer or onboarding point, for fear of rejection. Businesses will benefit from a culture which encourages applicants to provide relevant information at an early stage
- Many graduates had adjustments made for medical conditions in education and fear that this will not be replicated in the workplace. Employers can attract them by getting the message right that they will make adjustments
- Although organisations may have a high-level diversity statement on their website, this does not go far enough. For example, the website could say that the business strives to ensure a barrier free recruitment process, give details of what the recruitment process looks like, and refer to typical adjustments which are made
- Is your on-line content accessible?
- Businesses can use social media to get the same message across and advertise on disability job boards such as Evenbreak click here
- Employers should weed out non-essential job criteria and recruitment processes which can act as barriers to those with a disability. For example, are “ice breaker” group activities needed? Are group activities in assessment centres relevant to the role? If the recruitment process involves a timed exercise, does a time constraint reflect the job role itself?
- At every stage in the recruitment process, employers should be prompting applicants to notify any adjustments for medical conditions
- When someone raises a recruitment barrier, there is no need to discuss with them the medical condition. Focus on the nature of the barrier and reasonable adjustments
- If a candidate comes with a list of adjustments, the employer is not bound to put them in place. The employer needs to assess if they are relevant to this recruitment process/role. Will these adjustments be effective to address the barrier the individual identifies? Is it reasonable for the business to make them?
- Those involved in the recruitment process should be trained in disability awareness
- Employers can become involved in disability employment schemes, such as through Leonard Cheshire: See the website
- Most people with disabilities do not need adjustments which involve buying equipment, and if they do, the government’s Access to Work scheme may fund up to 80%: For more information, click here
In the meeting, we discussed the question of positive action for people with disabilities. Jill Kelly of Employment Law Plus made the important point that there is no risk of discrimination when an employer treats a disabled person better than they treat someone who does not have a disability. In fact, the Equality Act specifically says that there will not be direct discrimination if the employer treats disabled persons more favourably than a non-disabled person.
We have already seen legal cases guiding employers to give an employee with a disability advantages over a non-disabled person. In Archibald v Fife Council, the House of Lords recognised that the duty to make adjustments for a disability is unique among the Equality Act provisions in requiring employers to implement a degree of positive action.
In this case, Ms Archibald suffered complications after surgery which impeded her mobility and prevented her resuming her job as a road sweeper. She applied for over 100 desk jobs with the Council at a higher grade to her old position, for which she was required to undergo competitive interviews. She was unsuccessful and the Council dismissed her.
The House of Lords decided circumstances like Ms Archibald’s may require an employer to transfer a person with a disability to a higher grade without competitive interview - She could no longer undertake her original job, and she was qualified and suitable for a desk job, which was not a senior role where it would be important to make fine judgments about who would be best for the job.
Posted January 2019
Are employers liable for what their employees do at social events?
The Court of Appeal has just decided that a company was liable for a violent assault by its managing director on an employee at an impromptu drinking session after the company’s Christmas party (Bellman v Northampton Recruitment). When the staff present questioned how much a new employee was paid and where he should be based, the MD became annoyed and lectured them on how he was in charge and would do what he wanted. When a sales manager challenged him, the MD punched him, causing him serious injury.
The essential question was whether the MD acted “in the course of his employment”. The Court decided that the assault took place in the course of employment because the event took place after the work event which the MD had organised for the company, he organised the impromptu drinks, and the assault took place in the context of the MD exercising his managerial control to tell staff the extent of his authority.
That case was a personal injury claim. However, similar ideas apply to claims made against the employer for discriminatory harassment committed by one employee against another. The employer will be liable if the harassment takes place in the course of employment. In discrimination claims, tribunals are even more likely to find an employer is liable for its employee’s action than in personal injury claims.
In Chief Constable of Lincolnshire Police v Stubbs, Ms Stubbs, a police officer, complained that she was sexually harassed by a colleague on two occasions when she was off duty, once when she went to a pub after work with several fellow officers, and on the other occasion, at a pub for an officer’s leaving party. The employer was found to be liable for both these incidents.
In Livsey v Parker, the employer was liable for sexual harassment committed by one employee to another at a firm’s Christmas party, and also during a car ride home.
So what can employers do to defend themselves against claims of sexual harassment when the incident may not even have occurred at the office and in working hours? The key is to be able to demonstrate that the organisation took all reasonable steps to prevent the discrimination. This will include the following:
- Implementing an equality policy
- Ensuring all workers are aware of the policy on harassment and that harassment will lead to disciplinary action
- Training managers in the application of the policy
- Reviewing the policy as appropriate
- Dealing effectively with employee complaints
Achieving all this is pretty hard work for an employer and will take commitment.
Posted November 2018
Spotlight on hidden liability for disability discrimination
Hidden risks for employers of disability discrimination claims were highlighted by the Court of Appeal case of City of York Council v Grossett.
The case involved a teacher whose employer, a school, knew he suffered from the disability, cystic fibrosis. Various adjustments were agreed to accommodate his condition but they were not recorded properly. When a new Head took over, Mr Grossett was subjected to an increased workload.
He then showed the 18-rated horror film, Halloween, to a class of 15 year olds who were a “nurture group”, needing more attention than others. He was disciplined and defended himself on the basis that it was an error of judgment arising from stress. He did not inform the school that he thought that what he did was connected to his disability and the school had no idea of this. He was dismissed.
He brought claims including for disability discrimination. He presented new medical evidence to the employment tribunal which advised that his stress, which led him to show the film, was linked to his medical condition. The court decided that this link was enough to make the school liable for discrimination arising from disability. It was irrelevant that the school had no idea that the misconduct was caused by his disability. All that was necessary for Mr Grossett to win his claim was that the school knew he had the disability and the misconduct for which he was dismissed was caused by his disability.
The school tried to defend the claim on the basis that the dismissal was objectively justified. But it failed to do so, because the tribunal found that the dismissal was not a proportionate way to safeguard children and maintain disciplinary standards.
The implications of this case are that great care must be taken by employers, who know (or should know) that the employee has a disability, before doing anything which relates to the employee’s performance or conduct, such as initiating a poor performance review, disciplining or even writing an unsupportive job reference.
It would certainly be advisable to get an occupational health report to check that the problem is not connected to the disability. If it is related to the disability, the employer will need to ensure it has put in place all reasonable adjustments for the condition and that its proposed actions are justifiable.
We have just had another case reported on the same sort of discrimination arising from disability, Sheikholeslami v University of Edinburgh. Ms Sheikholeslami was diagnosed with work-related stress and depression (a disability) and went off sick. After this, she raised a grievance complaining of sex discrimination. The University concluded that there were cultural problems in Ms Sheikholeslami’s department. She wanted to move out of her department, but the University did not agree. She did not return to work. The University dismissed her when her work permit expired, because it believed that there was no possibility of her work permit being extended if she was not prepared to return to work in the position for which the permit had been granted.
The employment tribunal decided that there was no disability discrimination because Ms Sheikholeslami was dismissed, not because she was absent, but because she was unwilling or unable to return to work in her existing post – there was no connection between this refusal and her disability.
The appeal court decided that this was not the correct way of looking at the case. If Ms Sheikholeslami’s disability caused her to experience anxiety at the prospect of returning to work, the dismissal and her disability would be connected. She could therefore have a successful claim for discrimination arising from disability.
This case shows that there need only be a very loose connection between a dismissal and a disability for the employer to be liable for disability discrimination. When they are dealing with an employee with a disability, employers must take a very broad view of the circumstances. Although it may not be obvious that the dismissal or other disciplinary action is connected with the disability, and even if the employee does not say they are connected, they may still be connected if looked at in a broad sense. There will be no discrimination arising from disability if the employer is then able to show it put in place any reasonable adjustments to accommodate the disability and that the dismissal (or other action) was justifiable.
Posted October 2018
Holiday pay for non standard workers
Calculating holiday entitlement and pay for non standard workers is something of a challenge. A common approach is to say that the worker accrues holiday entitlement at the rate of 12.07% of hours worked. This is on the basis that the standard working year is 46.4 weeks, and 5.6 weeks (the holiday entitlement) is 12.07% of that. This approach is recommended by ACAS in its guidance “Holidays and holiday pay”.
The recent case of Brazel v The Harpur Trust looked at this in the context of a zero hours term time only worker. The Trust was calculating holiday on the basis of the 12.07% calculation. Brazel challenged this saying that her holiday pay should be calculated on the basis of her average earnings over a 12 week period immediately before each holiday, and not capped using the 12.07% approach. This meant that a term time only employee would receive a higher percentage of annual earnings as holiday pay than an employee who worked throughout the year.
The Employment Appeal Tribunal agreed with Brazel. It stated that there was no requirement to cap holiday pay at 12.07% to ensure that term time employees do not get a windfall in terms of holiday pay as compared to all year round employees. This decision has implications for any businesses which have workers working in fits and starts throughout the year (Ie no normal working hours). The correct approach is to calculate holiday pay based on average earnings over a 12 week period immediately before each holiday, even though this may result in higher holiday pay than that which is paid to standard hours workers.
Posted July 2018
Paying staff for on call time at home
There have been a number of cases on the difficult question of whether the time which workers spend simply on call is “working time”. This has implications for whether they are getting the national minimum wage for their work and whether the company is complying with rules on working time, in the Working Time Regulations. There have been a number of cases where the worker was on call at their home and went to the employer’s premises to work; and the on call time was not working time.
In the European case of Ville de Nivelles v Matzak, a volunteer fire fighter was required to be on standby during evenings and at weekends and report to the fire station if required within 8 minutes. He received an allowance, despite being a “volunteer”, and so was viewed as a worker. The court noted that Matzak was obliged to respond to calls within 8 minutes and, therefore, he had to be physically present at a place determined by his employer (even if that was his home). These geographical and temporal restraints severely limited his opportunities to pursue personal and social interests. Therefore, his stand by time was working time even though he was at home.
When customers are now often looking for 24/7 service, businesses are increasingly meeting this need by giving an out of hours phone to staff to respond to client calls at home or be summoned to go into work. Businesses cannot assume that the on call time, when the worker has the phone but is not answering a call, is not working time; and so he or she need not be paid for it and that this time does not count towards working time limits. Businesses should be taking advice on the situation. Employment Law Plus can help with this analysis.
Posted July 2018
Employee personal data cases
Even before the General Data Protection Regulation comes in on 25 May, we have had some salutary cases on data protection reported.
Morrisons Supermarkets suffered a very expensive blow when a disgruntled senior IT internal auditor released personal data about employees, including payroll data, onto a file sharing site. He posted links to it on other websites and sent copies to newspapers. He was arrested and convicted of fraud and data protection offences. A large number of Morrisons staff brought a class action against Morrisons for compensation.
On the particular circumstances of the case (which are too detailed to go into here), the High Court found that Morrisons was not in breach of the Data Protection Act and nor was it liable for breach of confidence. In spite of this, the court found that Morrisons was “vicariously” liable for what its auditor did. This was because there was a sufficiently close connection between what the auditor did in the course of his normal duties and his unlawful release of information. I.E. He was tasked with disclosing information to the company’s external auditors. In fact, he disclosed the information, but on a public website. So he did something close to his work duties, but in an unauthorised way. This made Morrisons liable for what its auditor did. And it had to pay compensation to the affected employees.
It is clearly very concerning for employers that, no matter what steps they take to protect data, they could still end up with vicarious liability for an employee’s unlawful data breach. Perhaps prevention is the best route. It is in employers’ interests to get their data security processes as tight as possible. For example, in the Morrisons case, the employer did not take steps to check that the data was deleted from its auditor’s laptop after he sent it to the external auditors. Employers also need to make all staff aware, in training and their data protection policy, that they will face personal criminal liability for misusing personal data.
Our staff Data Protection Policy and Privacy Notice template available to employers at a fixed price includes this kind of warning to staff. Contact us for more information.
There have also been two cases about surveillance cameras, in the European Court of Human Rights, where employers have fallen the wrong side of the legal line. In Lopez Ribaldo, another supermarket installed hidden cameras to monitor suspected workplace theft by its cashiers. Despite the fact that it caught the cashiers stealing on video, the hidden cameras were found to violate the cashiers’ privacy rights. Apparently, the employer went wrong by failing to target the cameras on the cashiers who were suspected, and by recording them over an unlimited time period. Employers need to approach covert employee monitoring extremely carefully.
The other case did not even involve covert monitoring. In the case of Antovic, a university infringed the privacy rights of professors when it openly installed surveillance cameras in lecture theatres. The court emphasised that video surveillance of an employee in the workplace is a significant intrusion into private life, even if it is not covert.
As part of their General Data Protection Regulation preparations, employers should be undertaking privacy impact assessments on any workplace CCTV, as well as giving employees prescribed information about the monitoring in their “privacy notices”. For the ICO list of examples of processing likely to result in high risk (IE requiring privacy impact assessment) click here
We are providing employers with a template “privacy notice” for staff for a fixed price. Contact us for more information.
Posted May 2018
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