What shall we do about NDAs?

Sir Philip Green

Non-disclosure agreements are nothing new. They were initially used in commercial transactions in order to protect parties in negotiations from the disclosure of commercially sensitive information. It remains the case that businesses which are considering mergers or acquisitions will normally start the process by requiring the interested parties to sign an agreement that is intended to ensure that, in the event that discussions do not lead to fruition, details of the parties, such as their business plans, forecasts and any other confidential arrangements, are not at risk of being leaked. This makes perfect sense, not least from the point of view of data protection.

Their use has become more widespread and they have moved into the sphere of employment law. It is more or less standard for settlement agreements (on the termination of employment) to include clauses which provide that the parties will keep confidential the terms of settlement and the circumstances giving rise to it. In most cases, this suits both parties. In effect, the employee is agreeing a trade off with the employer that, in return for a pay off which avoids the need for protracted, expensive and uncertain legal proceedings, they will accept an enhanced payment on terms which, to borrow a term from divorce law, provides for a clean break.

However, you can’t have missed the furore that has brought such agreements into the news headlines, particularly in the case of retail supremo Sir Philip Green and media mogul Harvey Weinstein. The #MeToo movement has led to a lively public debate about the inequality of arms which tends to accompany such deals and their ability to conceal serious wrongdoing including illegal activities, particularly discriminatory behaviour and, in the more severe cases, the sexual assault of women.

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Was Ryanair’s dismissal of staff a bumpy landing?

It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).

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Great British Bake Off: When workplace tensions ‘knead’ solving!

cake

I don’t know who won The Great British Bake Off last night.  That’s a weird place to start a Bake Off-themed employment law blog, I know.  Unfortunately, my wife dozed off in the middle of the final last night, so we have to wait to watch the rest of it online tonight!

With the popularity of the show ballooning in recent years, more and more workplaces have decided to hold ‘Bake Off’ events to raise morale and/or raise money for charity.  I must admit to getting involved with such an event in my second week at a previous employer.

Just to set the background, I’d never properly baked in my life and so, obviously, thought that trying to bake a cake was the right way to win over my new colleagues.  Come the morning of the competition, from the outside at least, the cake looked fantastic.  The problem?  Firstly, it was a rather fragile two-tier cake, so I was forced to drive to work in no higher than fourth gear (to the utter joy of the traffic behind me) and, secondly, because the judge (who no doubt had been studying the critical technique of Paul Hollywood) called my sponge ‘ultimately disappointing’ and my dreams of Bake Off-style glory evaporated in an instant!

Why am I discussing this?  Well, Bake Off events in the workplace have the potential to cause workplace angst and, at very least, can cause staff tensions to rise.

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Red Dead Redemption 2: Is ‘crunching’ actually voluntary overtime?

Cowboy Later today, the review embargo lifts on the biggest video game since Grand Theft Auto 5.  Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”.

What is Red Dead Redemption 2?  Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape.

So, why is it such a big deal?  One word: Rockstar.  Rockstar are the equivalent of Apple 10 years ago.  By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling.  As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies!

So, surely, eight years is more than enough to make a good game.  Well, yes.  But Rockstar want to make ‘extraordinary’ games not just good or very good ones.  And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’ overtime and the issue of ‘crunching’.

Let’s tackle the media controversy first.

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Mental Health First Aid in the workplace

October the 10th marked World Mental Health Day, a time to stop and consider how we can best support those around us who may be struggling. Given the amount of time we collectively spend in the workplace each week, particular thought should be given to the importance of mental health support at work. 

There is already
legislation in place providing the requirement for employers to ensure employees receive immediate attention if they are injured or taken ill at work,
but what about helping those suffering with mental illness? If an employee for example has a panic attack or is expressing suicidal thoughts?

The concept of
‘Mental Health First Aid’ originated in Australia where Professor Anthony Jorm, a researcher from the University of Melbourne was discussing with his wife, Betty Kitchener, a registered nurse, a recent mental health conference that he had attended. Within the conversation it was remarked that ‘What we really need is first aid for depression’. The idea has spread rapidly from there – developing
into an internationally recognised programme comprised of simple steps that can be called upon to help a person in distress.

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Tick, tock: Will employees have longer to bring Employment Tribunal claims in the future?

Employment Tribunal fees. Simple, right? Everyone knows that employees ‘have three months to claim’ and that’s that? Not really. What about the fact that Equal Pay claims (and certain other types of claim) have a six-month time limit? That doesn’t tie into the presumption of simplicity. What about an employee who is dismissed on 2nd January and serves a 3 month notice period, so their last day is 1st April – do you count the three months from notification of dismissal or from their final day at work? How much does a period of Acas Early Conciliation extend any given time limit by? I could go on and on…

Overall, what is surely uncontroversial for both employees and employers alike is that simplicity is key. If everyone understands how long an employee has to bring a claim, everyone has the certainty of knowing the period within which to consider conciliation, negotiation and/or the obtaining advice regarding a prospective claim.

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An unwanted kiss is “Strictly” verboten at work

Strictly Come Dancing

Last Monday I watched the evening’s newspaper front pages coming in on Twitter and nearly every one featured the romantic kiss between celebrity Sean(n) Walsh and professional dancer Katya Jones caught by The Sun on what happened to be his girlfriend’s birthday. It was the lead and second lead news on the BBC News website. Seann’s now ex-girlfriend who had been shown in the audience on Saturday evening’s programme was understandably unimpressed and her public response to their public indiscretion is worth seeing as one of the best put downs I’ve seen for some time.

So why am I writing about this on the Employment Solutions blog. Well, there was an interesting case reported this month which cost an employer £24,000 for similar behaviour in work, albeit non-consensual.

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Discrimination in Recruitment: How to Avoid Discriminatory Advertisements

It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.

As a
starting point, a job advertisement must not discriminate on the basis of any
of the nine protected characteristics as defined under the Equality Act 2010,
which as a refresher are:

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Can there still be a TUPE transfer after a gap of five months?

The European Court (CJEU) decision in Jorge Siguenza v Ayuntamiento de Valladolid concerns the potential application of a transfer of undertaking (TUPE transfer in the UK) in a case in which there is a long gap between one undertaking ceasing its activities and another commencing. Mr Siguenza was employed as a music teacher at the Municipal Music School of Valladolid in Spain from November 1996. From 1997 to 2013 management of the school was provided by a contractor, Musicos y Escuela, on behalf of the local authority. In 2012-13, owing to a reduction in the number of pupils, the authority refused to pay the sums claimed under the contract by Musicos y Escuela, which therefore sought the termination of the contract and claimed damages. In response, in August 2013, the authority terminated the contract, alleging wrongful conduct by Musicos y Escuela because it had ceased its activities before the end of the contractual end date. In a series of judgments delivered in 2014 and 2015 the Tribunal Superior determined that the authority had breached the contract because it was committed to providing guaranteed payments irrespective of the number of students, so that failure to make those payments in full had caused the breach of contract.

In the meantime, in March 2013, Musicos y Escuela started consultations with a view to the dismissal of all its staff. Mr Siguenza and his fellow employees were dismissed on 4 April and the company was declared insolvent on 30 July.

In August 2013 the authority assigned the management of the school to In-pulso Musical and provided it with the use of the premises, instruments and equipment necessary for it to carry out its duties. In-pulso Musical commenced its management of the school in September 2013 for the 2013-14 school year and was awarded further contracts for 2014-15 and 2015-16.

Unfair dismissal claims by the former employees failed but Mr Siguenza brought a further claim before the social court. His claim was dismissed on the basis of res judicata (the matter had already been determined by the other court) and he appealed to the high court. In doing so, he contended that there had been a transfer of undertaking from Musicos y Escuela to In-pulso Musical so that his contract of employment should have been preserved. It was this aspect of his claim that was transferred to the CJEU.

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Legal professional privilege can be lost if what is being discussed is “iniquitous”

Most people are familiar with the idea that legal advice is “privileged” from disclosure, i.e. that is remains private between the client and his or her legal advisers. In the United States that has become a hot issue concerning President Trump and those around him, not least his longstanding personal attorney and recent convict, Michael Cohen.

Nearer to home, the issue has been considered by the Employment Appeal Tribunal in the case of X v Y Limited.

“X” was employed by “Y” as a lawyer from January 1990 until his dismissal on 31 January 2017. X suffers from type 2 diabetes and obstructive sleep apnoea. Records showed that there were concerns about X’s performance at work from 2011. X complained that measures taken by his employer amounted to disability discrimination and/or failure to make reasonable adjustments. He raised a grievance in March 2016 and an outcome letter was issued in June 2016.

In the meantime Y announced a voluntary redundancy process. Having been unsuccessful in applying for certain roles, X was placed in a “redundancy consultation process”.

At his employment tribunal hearing the employment judge accepted that, in May 2016, X overheard a conversation at the Old Bank of England pub in Fleet Street. The conversation was the subject of a claim of legal professional privilege. X said that a group of professionally dressed people including two women in their 30s or 40s came into the pub. One mentioned a disability discrimination complaint by a senior lawyer at Y. She said that there was a good opportunity to manage X out by severance or redundancy because there was a big reorganisation under way.

In his claim X relied on the conversation to interpret an email that he was sent anonymously in late October 2016. The email had been sent by “A”, a senior lawyer, to “B”, a lawyer who had been assigned to Y. The content of the email was not read out in court at the initial tribunal hearing. X maintained that the email contained advice on how to commit unlawful victimisation by using the redundancy/restructuring programme “as a cloak to dismiss” X. Y maintained that the email was legally professionally privileged.

Y terminated the employment of X, ostensibly by reason of redundancy, by three months’ notice ending on 31 January 2017.

In the employment tribunal, Employment Judge Tsamados decided that the email “did not disclose a strong prima facie case of iniquity”. Legal professional privilege can be lost if what is being discussed in “iniquitous”, i.e. (according to the Employment Appeal Tribunal);

“…beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy.”

On appeal Mrs Justice Slade noted that Judge Tsamados did not take into account the conversation in the pub. She concluded that it was right not to do so because it was not authorised by Y and could not therefore assist in determining its position and because there was no contemporaneous note taken.

However, as far as the email was concerned, there were relevant background factors to be taken into account.

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