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:

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.

A family (business) at war

If, like me, you have been enjoying Kay Mellor’s comedy drama Girlfriends on ITV, you may have cringed at some of the artistic licence deployed when dealing with aspects of the age discrimination claim being brought by Miranda Richardson’s character against her boss (and lover), played by Anthony Head. However, it has neatly highlighted the particular difficulties that can arise when workplace disputes get a bit too close to home.

A real life family dispute has been playing out in the Manchester Employment Tribunal and, more recently, in the Employment Appeal Tribunal. There is a major clue in the name of the case: Mrs J Feltham, B Feltham (Maintenance) Limited and Ms H Feltham v Feltham Management Limited, Mr D Feltham and Mr M Feltham. Feltham Management is a long established family business, specialising in property management, particularly in respect of student lettings. Jane Feltham is the claimant. She has three brothers, David, Martin and Stephen, all of whom were respondents in the Employment Tribunal claim. They all worked for the family business which was founded by their father. Hazel, the adult child of David, worked for the company as a clerical assistant and Jane’s husband was Mr Eckersall, a self-employed joiner who did work for the company.

In August 2013 it came to light that Mr Eckersall had been sending inappropriate texts and Facebook messages to his niece, Hazel. On the same day he told his wife, Jane, that he was leaving her because he had feelings for Hazel. Jane confronted Hazel, accusing her of inappropriate conduct, but she denied that she had done anything wrong. Jane’s brother David got involved and told Jane that if was her fault because she did not take Mr Eckersall’s name on marriage, did not respect him as head of the household and suggested that these (among other reasons) were why he wanted Hazel. Jane was upset and left work. She did not return.

With support from David, Hazel took over Jane’s duties as office manager. The company stopped paying Jane from the end of August, but she remained a director as well as continuing to receive benefits including a company car and credit card.

Equality Act 2010 (Gender Pay Gap Information) Regulations 2017

On 6th December 2016, the Government published the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which will require large private sector businesses to publish gender-based pay statistics each year. These Regulations are likely to come into force (subject to parliamentary approval) on 6th April 2017, and will essentially require employers with 250 or…

Bad behaviour by lawyers

Last month I reported the very serious consequences of a Christmas party that got well out of hand and resulted in life changing injuries. Subsequently, reports have emerged of serious misbehaviour by lawyers which have had serious consequences, including the likely curtailment of successful careers. Legal Cheek has reported that, John Burnand (pictured), a partner in city…

Taking recruitment a step too far!

Recruitment firm ‘Matching Models’ has recently come under fire for posting a job advertisement requesting that applicants are ‘attractive women’ only and have even specified what bra size the successful applicant should be. The advertisement in question specified that applicants for a PA position should have “a classic look, brown long hair with b-c cup”. It went…

Anti-abuse charity employee awarded £90,000 for “calculated and premeditated” harassment

Roshni is the Urdu word for “light”. In June 2002 millionaire Ali Khan founded the charity of that name which is based in Glasgow. Its stated objectives are: “The advancement of education; the advancement of citizenship or community development; the relief of those in need by reason of age, ill health, disability, financial hardship or…

Qatar Airways under pressure to scrap policy that allows it to sack pregnant cabin crew

Although our blog is primarily concerned with cases that fall within the jurisdiction of England and Wales there are occasionally international cases which warrant comment. One such is the recent ruling of the International Labour Organisation, part of the United Nations, that Qatar Airways has discriminated against its female employees. Qatar Airways describes itself as…