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Employment & HR

As a HR professional, business owner or managing director, it is important that you keep on top of the latest Employment & HR laws. This month our Employment and HR update covers the confidentiality clauses, age discrimination, government grant support for disabled people, discrimination and home office code of practice.

1) The importance of confidentiality clauses following the case of Linklaters LLP v Mellish

2) New Acas Guidance on Age Discrimination

3) Increase to the Government Grant to support disabled people in the workplace

4) Drawing Inferences in Discrimination cases

5) Home Office Code of Practice on Preventing Illegal Working – Updated Guidance

Employment & HR update

The High Court have held in the case of Linklaters LLP v Mellish that the duty of confidentiality was to take precedent over any potential public interest there may have been in publishing information regarding the employer’s culture, where there was an express confidentiality obligation within a contract of employment.

Mellish was a former senior employee of Linklaters LLP and left the firm after receiving 6 months’ notice of termination of his employment. Mellish’s contract of employment contained an express confidentiality obligation. Once his employment ended, he informed the senior partners of the firm that he intended to give interviews in relation to the current culture of Linklaters and ‘the ongoing struggle Linklaters has with women in the workplace’.

Linklaters sought (and were granted) an interim injunction to prevent disclosure of confidential information obtained from and in relation to Mellish’s employment at Linklaters. They claimed the information Mellish intended to provide to the public contained confidential information relating to employees of the firm and was protected under the express confidentially obligation within his contract of employment. Mr Justice Warby presiding over the case said:

‘It is accepted by the claimants that there is, in general terms, a legitimate public interest in the due performance by large firms such as Linklaters of their social and moral duties towards their staff. But the existence of such an interest cannot justify indiscriminate disclosure of otherwise sensitive confidential information which others have a legitimate interest in keeping confidential.’

The case was settled by Mellish agreeing to provide undertakings to the Court confirming he would not disclose specific confidential information and would destroy any documents deemed to be confidential.

Note to Employers This case has highlighted that the duty of confidentiality will overrule a person’s freedom of expression in relation to matters in the public interest and highlights the importance of confidentiality obligations within contracts of employment.

Employment & HR update

Age is a protected characteristic under the Equality Act, making it unlawful to treat an employee unfairly due to their age (subject to limited circumstances). Acas have published new guidance which aims to assist employers in complying with the Equality Act and avoiding age discrimination.

The guidance highlights key areas where age discrimination is likely (recruitment, training and promotion, performance management and managing an under-performer and retirement) and emphasises the risks of stereotyping due to age and using ageist language in the workplace.

The guidance also goes on to set out the limited circumstances an employer may be able to treat an employee different based on their age.

Please see full guidance here:- which is worth a read.

Employment & HR update

The Minister for Disabled People, Health and Work has announced that from the 1 April 2019, disabled employees will be able to claim up to £59,200 annually to assist with funding any additional support needs in the workplace.

This fund will be available through the government’s ‘Access to Work’ scheme (a funding project aimed at reducing the restrictions disabled employees or those with health conditions may face in the workplace) and can be used in a number of ways to support disabled employees, such as by funding workplace adaptations, transport, assistive technology and interpreters.

The fund was increased by almost a third last year and this recent increase will enable more people to benefit.

The Minister for Disabled People, Health and Work, Sarah Newton, said:

‘Access to Work provides tailored support to thousands across the country, ensuring a disability or health condition is not a barrier to achieve someone’s career aspirations.

By extending this grant even more people can benefit from this personalised scheme, and more disabled people can thrive in the workplace.’

Note to Employers – This is good news for employers as the burden of cost of making certain reasonable adjustments for disabled employees will be reduced as of 1 April 2019. If you employ a disabled individual(s) then utilising the government’s ‘Access to Work’ going forward will be a valuable asset and should be looked into.

Employment & HR update

In Efobi v Royal Mail Group Ltd, the Court of Appeal held that where an employer had not provided evidence of comparable employees, adverse inferences of discrimination could not be drawn unless the claimant had first shown that there had been a prima facie case of discrimination against him.

Mr Efobi was a black African employed by the Royal Mail as a postman. He had qualifications in Information Systems and Forensic Computing and applied for many IT roles within the company without success. Mr Efobi claimed that his lack of success was due to direct race discrimination.

For a direct discrimination claim to be successful, an employee must show that they have been treated less favourably than a real or hypothetical comparator in the same circumstances, due to a ‘protected characteristic’ (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).

The Royal Mail did not confirm who the successful candidates were or what qualifications they possessed, and Mr Efobi did not request this information from his employer. Mr Efobi’s claim failed at the tribunal as he had not provided evidence from which discrimination could be inferred.

Mr Efobi appealed the decision and the Employment Tribunal (‘EAT’) concluded that the tribunal failed consider whether it should draw an inference against the Royal Mail’s silence over the identity and qualification level of the successful candidates. However, the Court of Appeal held that the EAT’s decision had been wrongly decided and reaffirmed the initial understanding of the burden of proof test. The Court of Appeal concluded that the onus was on Mr Efobi to submit information in support of his case in order to discharge the burden of proof, which he failed to do.

Note to EmployersThis is good news for employers as it reinforces the notion that the burden of proof to show a prima facie case of discrimination (i.e. facts upon which a Tribunal could conclude discrimination took place) still lies with the claimant in the first instance, before it must be disproved by the employer.

Employment & HR update

At the end of January 2019, the Home Office published its updated Code of Practice on Preventing Illegal Working (‘the Code’), which applies to employers who employ staff under a contract of employment (oral or in writing).

An employer has the responsibility of preventing illegal working in the UK by ensuring their employees can legally work here. Section 15 of the Immigration, Asylum and Nationality Act 2006 (‘the Act’) sets out the illegal working provisions which lay out the circumstances in which an employer may be served a notice requiring payment of a penalty if they fall foul of the provisions.

S15 of the Act confirms that a penalty may be payable by an employer if they employ someone 16 or over who requires leave to enter or remain in the United Kingdom and has not been granted leave to enter or remain, or their leave to enter or remain is invalid, no longer applies or is subject to a condition which prevents them from accepting the employment (‘s15 Provisions’).

The Code sets out the prescribed checks that employers should undertake before employment commences to ensure their employees are working there legally (by undertaking these prescribed checks, an employer will have a statutory excuse against any potential future liability if the employee is found to be an illegal worker) and the factors that the Home Office will take into account when determining the amount of any penalty to be imposed if the employer is found to be employing illegal workers. The Code also highlights that criminal penalties may also be imposed in serious instances.

When calculating the penalty amount due, the Code will apply in respect of any employment which began on or after the 29 February 2008 where the employer breached the s15 Provisions on or after 28 January 2019. The Code will also apply when an initial check on a potential employee or repeat check on an existing employee is required after 28 January 2019.

The Code published May 2014 will apply in instances where employment commenced on or after 29 February 2008 where the employer breached the s15 Provisions on or after 16 May 2014 and before 28 January 2019. For instances when employment commenced on or after 29 February 2008 and the employer breached the s15 Provisions before 16 May 2014, the Code published in February 2008 applies.

Please see the full updated guidance here.

Tom Evans Associate

For more information, please contact Tom Evans, Senior Associate in the Employment & HR Department at DTM Legal LLP

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