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UK HR Two Minute Monthly: religious discrimination; TUPE; IR35

Summary

Our first update of 2020 outlines key UK employment law developments over the last month. It includes cases on the definition of ‘employee’ under TUPE, the impact of a job evaluation survey in relation to equal pay, direct maternity discrimination, dress codes and religious discrimination, loss of privilege, and a recent tax tribunal decision on the application of IR35. We also outline other points of note, including the publication of the ICO’s new draft guidance on Subject Access Requests.

Dismissal violated employee’s freedom of expression under Article 10 ECHR

The European Court of Human Rights has held that that an employee’s right to freedom of expression under Article 10 ECHR was violated after he was dismissed for posting on a personal knowledge-sharing website.

The employee described himself in his website blogs as an expert in HR management who worked at a large bank, but did not mention his employer by name.

The employee argued that the termination of his employment breached his right to freedom of expression and appealed to the ECHR. The Court addressed four main questions when considering whether the right to freedom of expression had been infringed:

  • Nature of the speech – the Government argued that as the blog was only addressed to HR professionals (rather than to the public generally) Article 10 was not engaged. However, the ECHR noted that free speech does not only protect comments that demonstrably contribute to a debate on a public matter.
  • Motives of the author – in this case,
  • Good news for the Macron grid: The Paris Court of Appeal follows in the footsteps of the French Supreme Court

    December 16, 2019

    Categories

    Following the ruling of the Supreme Court on 17 July 2019[1], the Paris Court of Appeal, by a judgment dated 30 October 2019[2], validated the Macron grid capping damages for unfair dismissal.

    This policy, which limits the compensation that may be awarded to employees dismissed without a real or serious cause, has been challenged by many French labor courts since its implementation by an order dated 22 September 2017[3].

    As a matter of law, its compliance with several international agreements, in particular Article 10 of Convention 158 of the International Labour Organisation (“ILO”), has been contested.  Meanwhile, the French labor court judges are vigorously defending their authority to determine, in a sovereign way, the amount of damages awarded to employees.

    The Supreme Court has brought some order to this cacophony.  In an opinion of 17 July 2019, the plenary assembly of the Supreme Court (i.e., the full court and its most solemn setup) ruled that the Macron grid was in conformity with international labor law.

    The Social Chamber of the Paris Court of Appeal, the most listened to court on the merits, agreed with this assessment in its judgment of 30 October 2019.

    After two years of dispute, the Macron grid finally seems to have found more solid ground.

    Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers address French employment laws. If you or your organization would like more information on this or any

    Remember to Think Outside the Box: Ban-the-Box Laws Are Not the Only Restrictions on Consideration of an Applicant’s Criminal History

    December 5, 2019

    Categories

    A growing chorus of cities, counties, and states have passed “ban-the-box” laws that restrict when and how employers can consider an applicant’s or employee’s criminal history. Currently, thirteen states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico Oregon, Rhode Island, Vermont, Washington) and eighteen cities and counties (Austin, Baltimore, Buffalo, Chicago, Columbia (MO), District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD),  Rochester, San Francisco, Seattle, Spokane, and Westchester County (NY)) have ban-the-box legislation for private employers.

    However, employers often forget that use of an individual’s criminal history in making employment decisions may also violate the federal prohibition against employment discrimination under Title VII of the Civil Rights Act. For instance, an employer’s neutral policy to exclude applicants from employment based on certain criminal conduct may disproportionately impact individuals of a certain race or national origin.

    Recently, Dollar General Corp. agreed to pay $6 million to resolve a discrimination suit brought by the United States Equal Employment Opportunity Commission over the use of Dollar General’s broad criminal background check policy that purportedly discriminated against African-American applicants and employees. In addition to the monetary settlement, Dollar General must hire a criminology consultant to develop and implement a new criminal background check policy.  The consent decree also requires Dollar General to update its reconsideration process and make it clear to rejected applicants that they may provide information to support reconsideration of their exclusion. The consent decree further

    UK HR Two Minute Monthly: covert surveillance; holiday carry over; sexual orientation discrimination; interim relief

    Summary

    Our December 2019 update outlines the key UK employment law developments over the last month. It includes cases on covert surveillance, sexual orientation discrimination when there is no identifiable victim, harassment under the Protection from Harassment Act 1997, the doctrine of state immunity as it applies to British civilians working in the UK for a foreign state, the test for interim relief in whistleblowing claims and the latest ECJ decision on holiday carry over in sickness absence cases. We also outline other points of note, including the Government’s response to the Women and Equalities Committee report into the use of NDAs in discrimination cases and an independent review of the international evidence on the impact of minimum wages.

    Covert CCTV surveillance to monitor workplace theft was not an infringement of employees’ right to privacy under Article 8 ECHR

    The European Court of Human Rights has held that the Spanish courts did not fail to protect the Article 8 ECHR rights of employees when they upheld their dismissals based on footage obtained from concealed cameras in the workplace.

    The employees worked as supermarket cashiers. An investigation was launched after significant stock discrepancies were identified, which included installing both visible and concealed cameras. Notices were put up in the supermarket to inform customers and staff that CCTV was being used, but staff were not told about the concealed cameras.

    The covert CCTV helped identify the five cashiers who were involved in the thefts and all were dismissed. Their unfair dismissal claims

    UK HR Two Minute Monthly: religious discrimination; third-party harassment; investigations

    Summary

    Our November update considers recent developments in employment law, including cases on religion and belief discrimination, third party harassment and investigations. We also outline other points of note, including the new EU Whistleblowing Directive and the EHRC’s Guidance on NDAs.

    Dismissal not unfair where in-house counsel recommended changes to investigation report

    The EAT has held that a dismissal was not unfair where a draft investigation report prepared by HR and an investigator was altered on the recommendation of in-house counsel.

    In this case, the in-house solicitor had advised the investigator to remove his evaluative opinions and conclusions of whether the employee’s conduct amounted to misconduct, and to limit the findings to whether there was a prima facie case to answer. This was on the basis that the conclusions should be left to the disciplinary panel that was subsequently appointed.

    The EAT upheld the Tribunal’s decision that the overall dismissal was still fair as there was no evidential material that had been withheld from the investigation report for review by the disciplinary panel.  As part of this decision, the EAT took into account that the appeal hearer (who was a barrister) reviewed the draft investigation reports and did not find that the report was changed in order to make the employee’s dismissal more likely, and no pressure had been applied to the investigators.

    Why this matters?

    This case is a useful reminder about the scope of the investigator’s role in a disciplinary procedure.  At the outset of an investigation, the

    THE ACCIDENTAL SUCCESSOR: Asset Buyers Must Take Care to Avoid Unintentionally Becoming a “Perfectly Clear Successor”

    October 31, 2019

    Categories

    Asset Buyers, beware.  If the Seller has union-represented employees, and you intend to hire some or all of those employees and operate the assets as a union-free employer, take care to avoid becoming an accidental successor.

    As a recent decision of the D.C. Circuit Court of Appeals reminds us, the terms of the asset purchase agreement (APA) and all communications with Seller’s employees – by both Buyer and Seller – must be carefully managed.  Otherwise, Buyer can accidentally become a “perfectly clear successor” that is required to:

    • initially honor the terms of the existing collective bargaining agreement (CBA),
    • recognize the current labor union as the bargaining representative of the unionized Seller employees whom Buyer hires, and
    • bargain with the union over the terms of a new CBA for those employees going forward.

    THE ASSET BUYER’S OPTIONS

    Under the National Labor Relations Act, if an asset Seller has union-represented employees, and Buyer wishes to hire some or all of them and operate the assets, Buyer has three basic options:

    • Assume the CBA. Buyer will be bound by the terms of the CBA from the Closing Date and will be obligated to recognize the union as the bargaining representative of the employees covered by the CBA.  In most cases, the union will have no duty to bargain over changes to the CBA until the CBA is ready to expire – perhaps years after Closing.
    • Try to remain union-free. If it declines to assume the CBA, Buyer will normally be

    When HAL Conducts the Interview: Illinois Employers Face New Law Regarding Use of A.I. in Employment Interviews

    October 29, 2019

    Categories

    Technology has always had a significant impact on the way companies do business. With the increasing use of artificial intelligence (“A.I.”), no task is exempt from a robotic upgrade. In fact, a growing number of companies are utilizing A.I. to screen potential employees through, among other processes, the video interview. As the New Year approaches, it is important that Illinois employers familiarize themselves with changes in the law surrounding A.I. in hiring. Specifically, beginning January 1, 2020, employers using A.I. to screen applicant video interviews for Illinois-based employment will be subject to the Artificial Intelligence Video Interview Act (the “Act”).

    But What Is A.I. Video Interview Screening?

     Most A.I. screening of video interviews involves applicants recording themselves answering a series of interview questions. Like HAL, the conflicted computer in 2001: A Space Odyssey, more sophisticated A.I. even has the ability to simulate “natural” human conversation with which interviewees interact. The video interview is then analyzed using “deep learning,” which is essentially an algorithm that evaluates several data points such as facial expressions, word choice, body language, vocal tone, etc. By the end of the analysis, the A.I. generates an applicant score based on the collected data points and, in some instances, provides a recommendation on whether the applicant is a good fit for the position sought.

    So How Does The Act Regulate A.I. Video Interview Screening?

    Here is what we know about the Act signed into law by Governor J.B. Pritzker (D) on August 8, 2019:

    Requirements:

    • Employers must

    Want to Protect Your Trade Secrets? Update Your Employment Agreements!

    October 11, 2019

    Categories

    Since 2016, the Defend Trade Secrets Act (DTSA) has provided employers with a federal cause of action against employees, former employees and other bad actors who misappropriate trade secrets.  In addition to injunctive relief, DTSA remedies include civil seizure, compensatory damages, punitive damages and attorney fees.  However, in order to preserve the right to seek punitive damages and attorney fees from an employee or former employee, the employer must have provided notice of the whistleblower-protection provisions of the Act.  Those provisions protect employees and former employees from criminal or civil liability for disclosure of trade secrets made (a) in confidence to a government official or an attorney for the purpose of reporting or investigating a suspected violation of law, or (b) under seal in a judicial proceeding.

    Notice of the whistle-blower protection provisions must be included “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”  This would commonly include, for example, employment agreements, confidentiality or nondisclosure agreements, noncompetition agreements, and separation agreements.  The notice requirement applies to all such contracts entered into or revised after May 11, 2016.

    The notice may be provided by including the whistleblower-protection provision in the agreement or by cross-referencing a policy that contains the required disclosure.  It is unclear whether paraphrasing the statutory language will be sufficient.  Therefore, the safer course is to quote the pertinent text, such as:

    Notwithstanding the foregoing, 18 U.S.C. §1833(b) provides, in part: “(1) An individual shall not be

    UK HR Two Minute Monthly: whistleblowing; religion or belief discrimination; employment status

    October 9, 2019

    Categories

    Our October update considers recent developments in employment law, including cases on the whistleblowing public interest test, whether vegetarianism is a protected belief under discrimination law, and employment status. We also outline other points of note, including guidance published by the Banking Standards Board on regulatory references, the latest employment tribunal statistics and revised immigration arrangements in the event of a no-deal Brexit.

    Raising data protection concerns was sufficient to satisfy the whistleblowing public interest test

    The Employment Appeal Tribunal (EAT) has confirmed that an employee was entitled to whistleblowing protection when she had a reasonable belief that alleged data protection breaches by her employer were in the public interest.

    The employee worked for a small charity which among other things supports victims of domestic violence. Due to performance concerns, the employee’s probationary period was extended. The employee subsequently raised concerns that, given the nature of the sensitive and confidential personal information she dealt with, the charity was in breach of data protection legislation by failing to provide her with her own mobile phone and also with secure storage facilities to hold client records. The employer subsequently terminated her employment on performance grounds. The employee brought a claim that she had been automatically unfairly dismissed for blowing the whistle.

    The employment tribunal found that the complaints raised by the employee were not in the public interest as they concerned her own contractual position, which prevented her from succeeding in her whistleblowing claim. However, on appeal, the EAT disagreed. The employment

    Asset Purchasers: Beware Bans on Salary History Inquiries

    When one employer purchases the assets of another and intends to employ some or all of the seller’s employees, it is very common for the asset purchase agreement to require the seller to disclose certain personnel information regarding those employees.  Often this disclosure includes such items as name, title, hire date, current salary, and other compensation and benefit information.  However, such provisions may violate state and local bans on salary history inquiries.

    To date, fourteen states and Puerto Rico have prohibited or restricted private sector employers from seeking information about a prospective employee’s past compensation.  In some of those states, employers are permitted to ask about compensation history only at a certain point in the hiring process.  But in most, employers are never allowed to seek this information.  Many local governments have also enacted their own bans.

    Colorado’s new statute is typical.  Effective January 1, 2021, it will be unlawful for employers to “seek the wage rate history of a prospective employee or rely on the wage rate history of a prospective employee to determine a wage rate.”  The statute defines “wage rate” broadly to mean (a) for hourly employees, the hourly rate plus the value per hour of all other compensation and benefits received, and (b) for salaried employees, the total of all compensation and benefits received.  Given the remedial purpose of the statute – to eliminate pay gaps based on gender and race – it is likely that courts will construe the statute broadly in favor of employees

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