Government consultation on confidentiality clauses

On 4 March the Government published its consultation on “measures to prevent [the] misuse [of confidentiality clauses] in situations of workplace harassment or discrimination.

The consultation is widely regarded as being a direct response to the stories published late last year concerning the use of such clauses by Sir Philip Green’s companies, as highlighted in The Daily Telegraph once he was named in Parliament and the injunction against the paper was subsequently lifted. Just this week, The Sun has published a very concerning video of Sir Philip appearing to behave in a very familiar manner (choosing my words carefully!) with a member of staff who seems to be none too pleased with his attention.

The executive summary confirms the Government’s commitment to upholding and upgrading workers’ rights. Whether you accept that commitment will more than likely depend on your political view. However, the summary makes clear that “harassment or discrimination of any sort cannot be tolerated in the workplace”. It is acknowledged that confidentiality clauses have a “right and proper place” in the context of employment law, both in terms of employment contracts and settlement agreements. Existing limitations are noted, including the bar on preventing protected disclosures (i.e. whistleblowing) and the requirement for independent advice in connection with settlement agreements.

White, heterosexual, male candidate discriminated against, when applying to Cheshire Police

Equality and diversity issues are very much to the fore in modern life. Routine behaviour which would have been acceptable just a few years ago, e.g. “characterised as banter”, is now out of the question, and there is a far greater awareness of equality and diversity in all aspects of life, not just in the workplace.

Last December I highlighted an example of a situation in which ostensibly laudable diversity objectives were taken too far and it now appears that Cheshire Police has fallen into the same trap, this time in the context of recruitment procedures.

Matthew Furlong was keen to join the police force, following in the steps of his father, a detective inspector. In 2017 he applied to join Cheshire Police. At his interview he says that he was told that “it was refreshing to meet someone as well prepared as yourself” and that he “could not have done much more”. He duly passed the interview and assessment stage.

As observed in the Tribunal judgment, Mr Furlong is a white heterosexual male without a disability. In November 2017, notwithstanding his successful interview and assessment, he was told that his application had been unsuccessful. Cheshire Police claimed that they had applied positive action measures pursuant to section 159 of the Equality Act 2010. Mr Furlong maintained that Cheshire Police treated successful candidates with protected characteristics more favourably than he was treated, but unlawfully because they were not as well qualified as he was and because there was a policy of treating persons with protected characteristics more favourably in connection with recruitment than others who did not have such characteristics. The result, he contended, was that this approach was not a proportionate means of achieving a legitimate aim.

The phenomenon of the ‘work nemesis’

Some people have one, some don’t. No, it’s not a riddle for a shadow, it’s a phenomenon known as the ‘work nemesis‘.

Some people reading this blog will know exactly what I’m on
about and some won’t have the first idea. 
That’s fairly usual, as the existence of this phenomenon largely depends
on where you work and who you work with. 
Just to clarify, however, a ‘work nemesis’ is an individual who you
simply can’t gel with (or, to just more direct terminology, a people who you
can’t stand and/or dislike and/or are insanely competitive with).

You know in life sometimes you meet someone and, however
hard you try, you just can’t find a way to like them or enjoy spending time
with them?  That’s what we’re on about
here.  It’s the person who blanks you in
the kitchen but immediately strikes up a glowing conversation with the next
person who walks in, the person who (in your eyes) sends horrifically rude
emails or the person who, out of nowhere, takes sole credit for your idea in a
meeting.

Why is this relevant?  Well, naturally, taken too far, relationships between two warring individuals can affect their performance and that of the surrounding team.  So let’s explore a hypothetical scenario and see how it plays out in terms of employment law.