BCLP At Work

BCLP At Work

Employment Policies

Main Content

UK HR Two Minute Monthly: September

UK HR Two Minute Monthly: September

September 20, 2021

Authored by: Natalie Fuller

Legal professional privilege, litigation advice privilege, iniquitous principle, unfair dismissal, right to appeal, unlawful protection from wages claim, income protection payments

EAT concludes that an email sent prior to a disciplinary hearing, indicating the employer’s intention to dismiss an employee in any circumstances, did not fall within the “iniquity” exception to litigation privilege.

Confidential communications between a party to an employment tribunal and its legal advisers are protected pursuant to the doctrine of legal professional privilege. However, the “iniquity principle” means that legal professional privilege will be lost where a document or communication is created for the purpose of furthering criminal or fraudulent activity.

In Abbeyfield (Maidenhead) Society v Hart Mr Hart was dismissed for gross misconduct. He subsequently submitted a Data Subject Access Request (“DSAR”) and presented several claims at the employment tribunal, including a wrongful and unfair dismissal claim. During the tribunal proceedings Abbeyfield identified a number of communications between Abbeyfield and third party HR consultants which it said were inadmissible by reason of litigation privilege. The tribunal agreed with Abbeyfield’s position, save in respect of one communication from the appeal officer which stated that Mr Hart would not be returning in any circumstances. In light of the view expressed

How to effectively promote inclusion and diversity (“I&D”) in your workplace

September 10, 2021

Categories

What can we learn from the financial services sector to bring about substantive change?

Inclusive and diverse workplaces thrive on differing backgrounds, experiences and thought processes making them more economically sound, innovative and profitable. It is therefore unsurprising that advancing workplace I&D initiatives has remained a top agenda item for many Boards. The new challenges around unconscious bias created as a result of hybrid working brings this all the more into focus.

It is generally recognised that more needs to be done to improve I&D in respect of all underrepresented groups and also that progress to date has been slow. However, improving I&D needs to go hand in hand with ensuring that workplaces are psychologically safe, i.e. that workplaces support an environment in which everybody feels free to speak up and share ideas and experiences without fear of repercussions – an environment where people can ‘belong’.

A key component in advancing any I&D agenda is data collection. The regulators in the financial services sector focus on this critical component. It is very difficult to address I&D issues without data. Companies which are successful in collecting data on staff makeup will have the tools to make more rapid changes in the

COVID-19: self-isolation removed for double jabbed close contacts in England from 16 August – implications for employers

The UK government has confirmed that from Monday 16 August the rules on self-isolation for COVID close contacts will change for (a) the fully vaccinated (meaning all those who have had two vaccine doses, but only from 14 days after the second vaccine dose) and (b) under 18s in England. Instead of self-isolating, these individuals are advised (but not required) to get a PCR test as soon as possible.

Those who are not fully vaccinated will still need to isolate if they are COVID contacts, and everyone (including the fully vaccinated) will still have to isolate if, having taken a PCR test, they test positive. The need to isolate if suffering symptoms also remains.

As double jabbed individuals who are identified as close contacts by test and trace are still at risk of being infected and of transmitting COVID, people are advised to consider other precautions such as wearing a face covering in enclosed spaces, and limiting contact with other people, especially with anyone who is clinically extremely vulnerable. Double jabbed individuals will not be required to self-isolate while they take and wait for the results of the PCR test.

The changes may leave many employers uncertain about the measures

UK Covid 19: Government announces delay to final step on roadmap, emphasising the need for employers to be ready for change

The government has announced that stage 4 of the lockdown roadmap will be delayed. This article looks at how employers need to be able to anticipate future change in their return to work policies.

On Monday 14 June 2021, the government announced that stage 4 of the lockdown roadmap will be delayed for a period of up to 4 weeks. As part of this, the government guidance that workers should work from home if possible will continue beyond 21 June.

This comes at a time when employers, particularly those with an office-based workforce, have been considering the approach they will take in return to work policies. That will continue, but with the inevitable pushing back of implementation. Employers, quite understandably, want to be ready for an influx of people coming back to the office and, more often than not, have been steering towards a policy that allows the workforce to continue working from home to some degree.

Since the outbreak of the pandemic in the UK in March 2020, one thing we have known for certain is unpredictability. It was only in September last year that the government launched a short-lived advertising campaign to encourage workers to return to their

Returning to the office: Key questions and answers for UK employers

As 21 June 2021 gets nearer, how are you going to manage the return to the office? Adam Lambert, Mark Kaye and Lydia Moore answer the key questions being asked by office-based businesses in the first in a series of regular updates on the topic.

  1. Can an employer force its employees to return to the office? Despite the easing of the lockdown in the UK, the government guidance is to still work from home where possible. However, the potential further easing of restrictions on 21 June 2021 will mean that employers will have the option to consider whether it may be appropriate to ask their employees to come back to the office. Employers will need to act with caution and treat each employee on a case-by-case basis. Although the contract of employment will almost certainly require the employee to work at the company’s offices, the impact of COVID-19 should not be disregarded. If an employee is reluctant to return to the office, they should be consulted first so that steps can be taken to allay their fears and other options can be explored. If an employee has a disability, there will be an additional requirement for the employer to

Illinois Tightens Restrictions on Use Of Criminal Conviction Information

Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
  2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals

Back to Life: Issues for UK employers as employees return to the workplace

At the time of writing, the Government has published its provisional roadmap out of lockdown and employers are beginning to consider when and how employees may return to the workplace. This article considers some potential options and possible risks relating to a return to work.

Can employers force employees to return to work after lockdown?

It is a general principle of English employment law that employees must comply with reasonable management instructions from their employer. This would include an instruction to attend work.

Whilst health and safety considerations have obviously called this into question during the pandemic, a requirement to return to work may still amount to a reasonable management instruction, depending on the type of workplace, the employee concerned and how easily the employee’s work can be carried out from home. To avoid potential disputes it would be sensible for employers to consult with staff as early as possible to discuss matters and try to seek agreement. This is particularly important if a return to work requires a change to any terms and conditions of employment, as that will require consultation. Employers should take care to consider each individual circumstance on its own merits and be as flexible as

Coronavirus (UK): Managing the rise of DSARs and redundancies during the Coronavirus pandemic

Introduction

During the Coronavirus pandemic, there has been a rise in the number of both redundancies and data subject access requests (“DSARs”). This rise has placed increased pressure on HR teams and Data Protection Officers (“DPOs’”), who are having to grapple with this burden alongside the other day to day challenges posed by the pandemic. This article provides a snapshot of the recent trends and some practical tips from our employment team for dealing with them effectively and/or minimising legal risk.

Redundancies

The Office for National Statistics (“ONS”) recently reported that there were 726,000 fewer people in payrolled employment in January 2021 compared to February 2020. More broadly, it has noted that the UK unemployment rate in the last quarter of 2020 was 1.3% higher than in the same period of 2019. In light of such figures, the ONS has commented that “the increase in UK redundancy rates during the Coronavirus pandemic is faster than during the 2008-2009 economic downturn”.

The Chancellor Rishi Sunak stated in his March 2021 Budget that, whilst Government interventions to support jobs have worked, and the Office for Budget Responsibility’s expected peak unemployment rate has lowered from 11.9% to 6.5%, job loss is very much

UK HR Two Minute Monthly: employment status, harassment and reasonable steps, workplace surveillance and unfair dismissal

The Supreme Court Delivers Verdict in Landmark Uber case

As we reported in our dedicated update, the Supreme Court gave judgment in the final appeal in relation to the Uber litigation at the end of February, unanimously concluding that the Uber drivers who brought claims against Uber in 2015 were workers within employment legislation.

Why this matters?

The outcome of this case has been long awaited given its importance to gig economy businesses. The Supreme Court found that the rights asserted by the drivers were not contractual rights but rather rights granted under statute. As such, while the contract between the parties is something that the courts can consider, the correct approach is to consider all the relevant circumstances, which will also include the relationship between the parties in practice and the general purpose of the legislation in question.

It is worth noting that this assessment must be carried out on a case-by-case basis and, as such, this decision does not determine the status of all gig employee workers. The issue of employment status therefore remains an area of debate.

Uber BV and others v Aslam and others

Employer unable to rely on “reasonable steps” defence in respect

UK HR Two Minute Monthly: post-termination restrictions; discrimination and victimisation claims; right to respect for private life

February 2, 2021

Categories

Our January update considers recent developments in employment law, including cases on post-termination restrictions, interim relief for discrimination and victimisation claims, and the right to respect private life. We also outline other points of note, including the government confirming it will no longer review EU-derived employment laws.

Former employer’s post-termination restrictive covenants were unlawful restraint of trade

The High Court has held that the non-compete, non-solicitation and non-dealing clauses found in a former employee’s contract were invalid because they went further than necessary. The claimant, a financial advisory business, alleged that the employee had breached her post-termination restrictions by working for a competitor. The restrictions included a non-competition restriction which prevented the employee, for a 9 month period, from engaging in any undertaking providing the same kind of financial advisory services she provided (save for geographical areas unrelated to the claimant’s business). The non-solicitation and non-dealing covenants sought to prevent the defendant, for a 12 month period, from supplying relevant financial advisory services to customers or solicit customers who had been a client of the claimant during the 18 months prior to termination of her employment.

Aside from ruling in favour of the claimant in relation to other aspects of

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.