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UK HR Two Minute Monthly: philosophical belief; equal pay; sexual harassment

Summary

Our February 2020 update outlines key UK employment law developments from January. It includes cases on ethical veganism as a philosophical belief, equal pay and the difficulties in defending such claims, the impact of the drafting of the employment contract on territorial scope, the EHRC’s technical guidance on sexual harassment in the workplace with practical steps employers can take to tackle harassment, and the FCA’s letter on non-financial misconduct for wholesale general insurance firms. We also outline other points of note, including the draft Parental Bereavement Leave Regulations 2020 and changes to the ICO guidance on the timescales for complying with a data subject access request.

Ethical veganism held to be a philosophical belief

An employment tribunal has found that a belief of ethical veganism is a protected philosophical belief under the Equality Act 2010. The Claimant, a qualified zoologist and vegan since 2000, had worked in animal protection most of his working life. He adhered to the philosophy of the Vegan Society and exhausted all reasonable steps to ascertain whether a product or service complied with ethical veganism.

The tribunal noted that “ethical veganism” is not just about choices in diet, but also choices relating to what a person will wear, the personal care products they will use, their hobbies and their jobs. The tribunal also referred to the definition provided by the Vegan Society, “A philosophy and way of life which seeks to exclude, as far as possible and practical, all forms of exploitation and cruelty to

Mental health issues at work – #TimetoTalk Day

February 6, 2020

Categories

Today is Time to Talk Day focusing on ending the stigma of mental ill-health in the workplace.

Mental ill-health costs UK employers up to £42 billion annually due to poor productivity, sickness absence and staff turnover. With the number of stress and anxiety workplace-related cases increasing by over 37% just last year, this is a key topic for employers.

Over the last several years there has been a growing recognition of the need for employers to proactively foster mental wellbeing in the workplace and of the benefits this can bring. This is a noticeable shift from the historic approach, which tended to focus more on dealing with the problems only after staff had gone off sick.

#TimetoTalk encourages staff to have conversations about mental health so that they can be more open about the issue and can ask for support if they need it. This reflects key aspects of good practice that employers can adopt to foster good mental health and wellbeing, including:

developing mental health awareness amongst staff by making information, tools and support accessible; destigmatising mental ill-health, for example via networks and support groups, and training up staff to spot the early signs of a mental health issue so that more targeted support can be provided were needed; and generally supporting staff in need, including offering professional help and where appropriate, making reasonable adjustments to the workplace. These developments can be seen as part of a wider ongoing strategy by the UK government to prevent

Request for Accommodation Will Not Support Retaliation Claim Under Missouri Human Rights Act, SCOMO Holds

Under Missouri law, a request for accommodation cannot serve as the basis for a retaliation claim.  Last month, the Supreme Court of Missouri issued a unanimous opinion in Lin v. Ellis, No. SC97641, 2020 WL 203145, at *5, — S.W.3d —- (Mo. banc Jan. 14, 2020) (per curiam), holding that “a mere request for an accommodation does not fall within the plain language of either the opposition or participation clause of” the Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.070.1(2).

The Lin case arose out of an employee’s request from her employer to accommodate her request to avoid tasks that aggravated her chronic back pain after being diagnosed with two herniated discs.  Without requesting a doctor’s note, the employer provided the requested accommodation.  Subsequently, the employee’s back pain worsened, and she asked to be excused from performing certain tasks that required her to work at a bench with her back bent for extended periods of time.  The employer accommodated this request too and assigned her work that did not exacerbate her herniated discs.

After an internal complaint was filed against the employee, the employer asked human resources to initiate a process with a view toward terminating the employee.  Simultaneously, the employer was informed that funding for the employee’s work under a grant was set to expire, thereby eliminating funding for the employee’s position.  After the employer informed the employee that the funding for her work was set to expire, and after discussing other work the employee could perform in light

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
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