Competing interests lead to more confusion concerning NDAs

On 21 July (oddly given that it was a Sunday) the Government announced what it described as “measures to prevent misuse of confidentiality clauses in situations of workplace harassment or discrimination. Frankly the press releases are light on detail. However, the four main changes are as follows:

  • Employers will have to make clear the limitations of a confidentiality clause, in plain English, within the settlement agreement and in the form of a written statement for the employee. In other words there will have to be a notice to the employee within the agreement which clearly explains what the clause does not cover.
  • Current legislation will be extended so that it will be a requirement for all individuals signing an NDA (whether or not contained within a settlement agreement) to obtain what is described as enhanced independent legal advice, presumably at the employer’s expense. This is potentially interesting because it raises the possibility that employees may need to obtain such advice at the commencement of or during employment, perhaps even before the commencement of employment. Much will depend on the definition of what constitutes a regulated NDA and that information, perhaps unsurprisingly, has not been published.
  • All NDAs must make clear that the restrictions will not prevent the employee from disclosing the otherwise protected information to the police, regulated care and health professionals, social workers and, interestingly, legal professionals. As matters stand, most settlement agreements include a confidentiality clause which provides that not only the terms but even the existence of the agreement must be kept confidential, save for immediate family members and relevant professional advisers (i.e. those advising the employee concerning the agreement).
  • Enforcement measures will introduced to deal with settlement agreements and written statements of employment particulars that do not comply with the regulations, including that non-compliant NDAs will be legally void.
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Can an employee who does not have the right to work in the United Kingdom bring a successful employment law claim?

The ‘illegality principle’ prevents a court from aiding a claimant who has based their claim on an immoral or illegal act, meaning that a tribunal or court will generally not enforce an illegal contract.

An employer of an individual working under an illegal contract can raise a defence against any employment claims the individual may bring against them. This is what is known as the ‘illegality
defence’, the basis of which is that the contract is illegal and therefore void, so the claim should not succeed.

A common example of an individual working under an ‘illegal contract’ would be an employee who is working in the UK despite not having the right to – i.e. working illegally, in breach of immigration laws.

In recent years, tribunals and civil courts have been reluctant to allow an employer to use the illegality defence to block vulnerable migrant workers’ employment tribunal claims.

An interesting Court of Appeal decision has further illustrated this. The case of Okedina v Chikale, has shown that an employer cannot always automatically rely on a breach of immigration rules to argue that an employment contract is unenforceable. The matter concerned contractual claims (including unfair dismissal) brought by a Malawian national whose leave to remain (and right to work) in the UK had expired two years before the time she was summarily dismissed.

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Calculating holiday pay for workers with ‘irregular’ hours

The Working Time Regulations 1998 (WTR’s) state that workers are entitled to a minimum of 5.6 weeks’ leave per year with part-time workers being entitled to a pro-rated amount of this figure. For example, an employee working full time would be entitled to 28 days per year (5 days x 5.6 = 28) whereas a part-time employee working say 3 days per week, would be entitled to 16.8 days per year (3 days x 5.6 = 16.8 days).

The above is clearly a straightforward calculation, however the situation becomes more complicated for workers who do not have ‘normal working hours’. Under the Employment Rights Act 1996 (ERA) if an employee works irregular hours, their holiday pay should be calculated using an average of their pay over the last 12 weeks. On the basis that the 5.6 weeks leave entitlement amounts to 12.07% of a worker’s hours (12.07% reached by dividing 5.6 by 46.4 (total number of weeks in a year less 5.6 weeks holiday), employers have generally calculated holiday pay as 12.07% of pay for each hour worked (i.e. the assumption was that the calculation for both the amount of holidays and holiday pay, would be the same). The recent case of The Harpur Trust v Brazel however, shows that the same approach does not work for both…

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Employment Law: A study of Peanuts

I’ve just passed two years’ service here at Canter Levin & Berg and, during that time, if my colleagues were asked to describe my obvious passions in two words, those words would be probably be ‘penguins’ and ‘Snoopy’. That wouldn’t be surprising considering that my office contains a Snoopy resting on his doghouse, penguin figurines and numerous colleagues regularly receive Snoopy pictures within internal emails…

From time-to-time, I use hypothetical examples to demonstrate employment law principles and solutions and, within blogs, I tend to slip in the odd character from the Peanuts universe. Fun fact? The creator of Peanuts had the title fostered upon him by newspaper editors and hated it to such an extent that when asked about Peanuts he always referred to it as ‘that comic with Charlie Brown and his dog’.

From time-to-time, I use hypothetical examples to demonstrate employment law principles and solutions and, within blogs, I tend to slip in the odd character from the Peanuts universe. Fun fact? The creator of Peanuts had the title fostered upon him by newspaper editors and hated it to such an extent that when asked about Peanuts he always referred to it as ‘that comic with Charlie Brown and his dog’.

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Gross negligence: Apollo 11 back down to Earth?

It’s official. I’m a fully signed up member of Sky TV. I get to indulge in the football, my wife gets US dramas and we both get the F1. My family’s view? That we’ve ‘gone posh’… Yes, Sky TV is viewed with incredulous eyes within our family clan.

Why do I suddenly sound like a satellite TV salesman? Well, recently, on a whim, I recorded a program about the 1969 moon landing on the TV, which was excellent and marked the 50 year anniversary of Apollo 11’s landing on the moon. One of the most fascinating aspects of the show concerned interviews with NASA engineers who knew that one incorrect/flawed part on the shuttle could lead to mission failure and/or the deaths of the astronauts in front of the watching world. In fact, such were the risks that President Nixon had a printed speech ready in the event the astronauts died.

What does this have to do with employment law? Well, unbeknown to some, it is possible to dismiss a member of staff for ‘gross negligence’ and, being an employment law aficionado, the programme set me to thinking about this little-used reason for dismissal.>

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Christian doctor’s contract ‘terminated’ for refusing to identify transgender patients

A Christian doctor who was training to be a medical assessor for the Department of Work and Pensions (DWP) had his contract terminated due to his refusal to use ‘transgender pronouns’, he has claimed to the Birmingham Employment Tribunal.

Dr David Mackereth, who had 26 years’ experience as an NHS doctor, was asked to refer to patients in accordance with their chosen gender identification. However, he responded that he would have a problem with this as he believed that gender was defined by biology and genetics, telling the Tribunal that he would not refer to “any six-foot tall bearded man” as “madam”.

He states that he was suspended as a disability claims assessor in June 2018, and his contract subsequently terminated.

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Good news for employers seeking to enforce restrictive covenants

Five years ago I wrote an article for this blog which was entitled “Don’t rely on a court to fix a ‘defective’ restrictive covenant“. In doing so I was merely using a recent case to demonstrate the approach taken by courts to restrictive covenants in employment contracts, viz. that they have to be precise and correct in all respects, failing which they are likely to be struck out in their entirety. That’s why you often see a sub-clause at the end of series of restrictive covenants which states something along the lines that if any covenant or part thereof should be found to be unenforceable, that shall not invalidate the remainder: an attempt to pre-empt the likely outcome if the clauses are subjected to court scrutiny.

Restrictive covenants in employment contracts, and particularly those which seek to restrict a former employee from joining a competitor, can be difficult to enforce in practice. That’s because they are a form of restraint of trade which, on the face of it, is contrary to public policy. However, courts have acknowledged over the years that employers have legitimate business interests which they ought to be able to protect, but only to the extent that it is reasonable to do so. Consequently, such restrictions should be reasonable in area and duration, with the restrictions providing no more protection than is reasonably necessary. the received wisdom has been that if they go too far, they are likely to be struck out altogether. Since court proceedings in this field can be cumbersome, time-consuming and very expensive, often with no guarantee of a successful outcome and with an opponent who might not be in a position to pay costs if ordered to do so, employers have tended to be understandably wary about litigating and have instead relied on the deterrent factor of including such clauses in contracts.

There has been a good deal of litigation concerning restrictive covenants, very often considering what restrictions are reasonable in terms of their scope and application. However, it has been over 100 years since restrictive covenants have been considered by our most senior court. That is until the judgment of the Supreme Court in the case of Tillman v Egon Zehnder Limited, which was handed down on 3 July.

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Labour, anti-semitism and unfair dismissal

A recent case in the London Central Employment Tribunals has touched on some very topical issues concerning the Labour Party, as well as considering whether activities undertaken by an employee outside the workplace can impact negatively on the employment relationship.

In Mr S E Keable v London Borough of Hammersmith and Fulham, Mr Stan Keable brought a claim of unfair dismissal against Hammersmith and Fulham Council (HFC) when he was dismissed after a video showing him arguing that the Zionist movement collaborated with the Nazis went viral on Twitter and was picked up by a Newsnight journalist, David Grossman.

Mr Keable worked for HFC from 2001 until his dismissal on 30 May 2018 and his employment record was blemish free. He was a political activist and was a member of the Labour Party until he was expelled as a result of his membership of Labour Party Marxists, a non-affiliated organisation.

The employer’s terms and conditions included a requirement to “avoid any conduct inside or outside of work which may discredit you and/or the Council”.

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You’re fired? – Trump v UK Ambassador row

Another week, another news story related to Donald Trump albeit, this time, definitely not ‘fake news’. In summary, an unknown individual leaked a diplomatic cable from Sir Kim Darroch, the UK Ambassador to the USA, in which Sir Kim called President Trump “insecure” and “incompetent”.

Following this, and without an absence of irony, President Trump then demonstrated that alleged insecurity by announcing that his administration would no longer speak with Sir Kim and, long story cut short, Sir Kim resigned his position.

Rather than focus on the political side of things, this story is interesting because it reflects a common fear of many employers, namely an employee leaking highly confidential information to hurt them. In this case, it is very likely that a civil service or staff member leaked the information to hurt Sir Kim’s position (and, in that sense, they were ultimately successful!)

Let’s have a quick look at the employment law impact of a similar situation. So, within our hypothetical example, we have Rule Britannia Mugs Ltd, who sell British branded mugs to other countries. Their biggest customer is White House Trading PLC in the USA, who love mugs displaying pictures of red telephone boxes, London buses and union flags! However, an employee leaks an email from the Finance Director within which the Director states ‘we needn’t worry about quality, Americans will buy any old tat’ and it becomes viral on social media. What happens next?

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Not so Love Island: Workplace romances

Let’s start by instantly getting some employment law myths out of the way. Firstly, can an employer safely ban workplace relationships? No. Secondly, can an employee safely ban relationships between members of the same team? No (except in very limited circumstances). And, finally, can action be taken if a relationship blossoms between two members of a same sex team and other members of that team have religion-based objections? Absolutely not!

So, why the theme? Well, at present, the nation seems to be gripped by Love Island which, for the uninitiated, sees strangers gather in a villa in Majorca and attempt relationships with each other (a ‘romantic Big Brother’ if you like). Naturally, as the weeks go by, attempted couplings fail and people start dating ex-partners of other islanders with their former flames in the same vicinity which, as you can imagine, causes many
fireworks and causes everyone to go a bit drama llama.

In my line of work, you do semi-regularly come across employers who believe they are able to take action against staff simply due to the fact they are within a relationship (whether that be moving teams, locations and/or even considering dismissal). This appears to come from American TV where, within numerous comedies and dramas, you see characters hiding workplace relationships because, firstly, a form needs completing to put it on record and, secondly, it could put the employment of one of them at risk.

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