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.

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:

Can a negative reaction to a refusal to shake hands constitute discrimination on grounds of religion?

The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.

When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.

Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.

In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.

The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender.

Dressing for work

The government has released some useful guidance to assist employers in getting to grips with worker’s rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics).

As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised by the agency that she could take time out of the working day to purchase a suitable pair and was sent home without pay when she refused.

As a result of her treatment, Nicola submitted a petition to government to make illegal any policy which forced women to wear high heels at work. The petition received 152,420 signatures over a six month period and gained the right to be debated in parliament on the 4th of March 2017. The government’s view is that the current legislation is clear and sufficient enough as it stands to protect employee’s rights. While pledging to take action to remove the barriers to equality for women at work, the government maintains that employers are entitled to set dress codes for their employees provided that they are reasonable.

A joint report by the Petitions and Women and Equalities Committees however has called on the government to do more

Gender Pay Gap Reporting: Myth-busting

I write further to the deadline for Gender Pay Gap Reporting expiring last week. Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff.

The initial results? Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women.

So, that means that those employers are discriminating against women, right? Well, not necessarily. But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist? Not really.

The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females. Let’s take a look and bust some myths about the Gender Pay Gap Reporting.

Do the recent Equality & Human Rights Commission proposals to ‘combat’ sexual harassment make sense?

The Equality & Human Rights Commission (“EHRC”) is a fantastic organisation that seeks to protect employees and workers from discrimination at work. I regularly read their published Reports and publications because they interest me and keep me informed of potential future developments, which is handy given my sizable discrimination-related workload for employees and employers alike.

The EHRC have recently published their most recent Report: “Turning the tables: Ending sexual harassment at work”. The Report raises well-known concerns about the lack of support provided to, and the pressure and detriment placed upon, individuals who identify sexual harassment issues in the workplace.

As usual, the Report ends with some law reform-based recommendations for the Government to consider to improve matters. And, rather unusually with an EHRC Report, whilst I completely agree with the motive behind the recommendations, I can’t much see how the majority of the recommendations themselves will make much positive difference. For me, it appears to be a case of ‘good intent, bad execution’.

But, rather than simply take my word for it, let’s explore some of the recommendations and have a proper look.

Coming back for seconds: Waiter appeals dismissal for ‘rude, aggressive’ behaviour due to ‘being French’

As an Employment Solicitor, I deal with multiple discrimination claims. Personally, I find the majority of discrimination claims fascinating. Why? Because they are so varied and can be brought due to behaviour linked (in almost any way) to an individual’s gender, age, belief or religion, race, sexual orientation, disability, marriage or civil partnership, pregnancy or nationality.

As you’ll have no doubt spotted from the unusual title, it’s that last one, nationality, which I want to explore today.

Before we get into the legal angle, let’s quickly look at the facts. A waiter is reported to have taken action against a restaurant in Vancouver for his dismissal last year. His former employer stated that his dismissal was due to his “aggressive tone and nature” with colleagues further to previous verbal warnings as to his “combative and aggressive” behaviour towards fellow staff.

The waiter, Mr Guillaume Rey, has argued that his dismissal (and the reasoning behind it) is discriminatory because French culture “tends to be more direct and expressive”. Yes, that’s right, his core argument is that his confrontational behaviour should have been overlooked and/or condoned simply because he was French.

Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health.

My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation…

So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test, she was passed for duty and assigned for front-line duties. There were no concerns over her performance during her time in the role.

The issues started in 2013 when she applied to transfer to a new police force. As was standard, she attended a pre-employment health assessment. The medical practitioner concluded that, whilst her hearing level was technically just outside the usual police force parameters, she performed her current role with no difficulties and a practical functionality test was recommended. However, the new police force refused to follow this recommendation and, instead, declined her request to transfer due to her hearing below the recognised standard and, rather importantly, commented that it would not be appropriate to accept a candidate outside of the recognised standard of hearing because of the risk of increasing the pool of police officers placed on restricted duties.

Is Buddy the Elf a good employee?

 It’s nearly here! Christmas is just five days away! The radio stations are playing Last Christmas by Wham on loop, supermarkets are clogging up the TV with advertisements for gooey desserts and it’s getting easier and easier to spot those remaining advert calendar squares!

Every family tends to have an annual pre-Christmas tradition and I’m no different. In fact, mine is to visit my younger family members each year and watch Elf with them. For those not in the know, Elf is a Christmas film which came out in 2003 and stars Will Ferrell as a human who is adopted by Santa’s elves and raised as a Christmas Elf at the North Pole. It sounds terrible but, in fact, it’s a cult classic that was named Best Christmas film in a recent survey!

Anyway, what better time of the year to explore whether or not Buddy the Elf is a good employee or not? I mean, it is an employment law-related and Christmas-themed topic, so what are we waiting for? Let’s travel through the Candy Cane forest and explore this further!

So, to give us some background, Buddy was a baby at an orphanage who snuck into Santa’s sack one night. When Santa discovers him at the bottom of his sack upon his return to the North Pole, an elf adopts him and raises Buddy as his own. Unfortunately, Buddy grows at three times the rate (and height) of the elves and, eventually, discovers that he is a human, not a Christmas Elf. Aside from his height, this is especially noticeable when Buddy can ‘only’ make 85 Etch-A-Sketches a day rather than his 1,000 daily target in Santa’s workshop. Upon discovering that he is human, Buddy goes to New York to find his real father and save him from the naughty list, as well as looking for a more normal life.

During the film, Buddy has work experience at his real father’s book company, work experience in a mail room and works as an employee of a large department store in the Christmas section. Buddy is dedicated and keen but, overall, was he a good employee (by UK employment law standards)?