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Employment Law+ Weekly Briefing - 7 March 2019

Hot Topic - Consultation on confidentiality clauses (NDAs)


1) Employee voice – representation on boards
2) Resignation – suspension of teacher not a repudiatory breach (Agoreyo)
3) Apprenticeship week – attracting millennials
4) Diversity & Inclusion – 15 Leading businesses sign up to ethnicity pledge
5) Disability discrimination – meaning of “long term”
6) FAQ – what is HR’s role in the new executive pay ratio regime?

Watch these programmes as they are released on Twitter.

Training and Events

Equal Pay and Transparency: Clarity for Your Business  NEW COURSE OPEN FOR BOOKINGS
This half day course will provide you with:
overview of the Equal Pay Provisions in the Equality Act, examining potential claims and defences in detail
tactics for dealing with ET claims and questionnaires
how this interacts with GPG/Equal pay Reviews; and
pay transparency
for 2 discount is available.   More details and bookings.

Dealing with Mental Health Issues at Work. FINAL CHANCE TO BOOK  
"Excellent. Very useful and practical handouts"
Good mix of interactive work. Good pace throughout the day".
3 for 2 discount is available. More details and bookings.

Other News

 Consultation on confidentiality clauses (NDAs)
BEISissued a consultation this week asking a range of questions in relation to the use of employee confidentiality clauses. Of course, this has been a very hot topic in the news in recent times, and it is an issue which generates debate from lots of different viewpoints. The consultation seeks responses on any NDA clause in an employment context, regardless of whether it is in a settlement agreement, contract of employment or elsewhere.  It covers a variety of matters including:
 whether disclosures to the police and other (as yet unspecified) organisations should always be permitted;
how to ensure clarity for workers as to the limits of confidentiality clauses; and
appropriate enforcement of any limits set.
are collating responses to the consultation.  (Responses are due by 29 April 2019.)

Worker rights post Brexit
TheGovernment issued a press release restating its commitment to protect UK workers’ rights post-Brexit. These commitments include:
  Parliament being empowered by the Withdrawal Agreement Bill to consider and vote on any future changes in EU law that strengthen workers’ rights or workplace health and safety standards; and
  that trade unions, businesses and the relevant select committees of Parliament will be consulted as part of this process.
Work Life Balance Directive and the Transparent and Predictable Working Conditions Directive are intended to be the first such items of EU legislation to be subject to this new process, the UK having previously agreed to them in the EU Council.
press release also states that proposals for a single labour market enforcement body, contained in the Good Work Plan, will be brought forward in coming months.

Court of Appeal decides on suspending employees
In  London Borough of Lambeth v Agoreyo, the Court of Appeal (CA) has decided that reasonable and proper cause is needed to suspend employees. Ms Agoreyo, a primary school teacher, was suspended pending an investigation into three allegations of the use of force against children.  The employee resigned and raised a breach of contract claim based on the assertion that the suspension was a repudiatory breach of the implied term of trust and confidence.  At first instance in the County Court (CC) the employee was unsuccessful as the judge found that there was reasonable and proper cause for the act of suspension.  Therefore, it could not be a breach of the implied term of trust and confidence.  However, this was overturned on appeal to the High Court and the employer appealed to the CA. 

The CA this week upheld the decision of the CC and stressed that the only test is whether there was reasonable and proper cause to suspend an employee.   Therefore, it did not have to determine whether suspension is a ‘neutral act’ and could also find that there is no test of ‘necessity’ when taking a decision whether to suspend. 

It does not appear that the CA wants suspension decisions to be legally burdensome.  However, neither should suspension be an automatic response to an allegation of misconduct.  See more on HRNTV above.

News from 

HMRC consults on extending off-payroll working rules to private sector
Investors to focus on boardroom diversity and pensions

The newsletters and updates we send do not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.