REUTERS | Yves Herman
REUTERS | Yves Herman

If you think #metoo conduct is the preserve of the entertainment sector, think again. It is prevalent in all sectors. That is why industry bodies and regulators in the likes of law, charities and construction have issued their members with guidance on dealing with sexually inappropriate conduct.

Financial services are not immune. Far from it. The Financial Conduct Authority (FCA) has made it clear that sexual harassment matters. The FCA’s interest in allegations and findings of sexual harassment or other sexual misconduct about individuals who work for the firms it regulates is part of the its broader focus on culture within the UK financial services industry. Continue reading

REUTERS | Lucy Nicholson

In relation to unlawful discrimination claims, it had become well established under the old law that there was a two-stage test:

  • The claimant had first to establish the facts from which, in absence of any explanation to the contrary, a tribunal could reasonably conclude that unlawful discrimination had taken place.
  • If that was established, the burden of proof then switched to the respondent to show that there was some adequate non-discriminatory explanation as to why the events in question had occurred.

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REUTERS | Lucy Nicholson

At the end of 2018, the government announced the Good Work Plan, which develops its response to the Taylor Review. It describes the plan as “the biggest package of workplace reforms for over 20 years”. This blog considers some of the more eye-catching proposals aimed at tackling “one-sided flexibility” in the working relationship, including the proposals to align the different tests of employment status, abolish the Swedish derogation for agency workers and introduce a new right for workers to request a more stable contract.

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REUTERS | Ali Hashisho

Does an employer directly discriminate against its employee because of his or her age by ceasing PHI payments prior to the employee reaching the greater of age 65 or their state pension age?

The employment tribunal (ET) in Whitham v Capita Insurance Services Ltd ET/2505448/12 answered this question with an emphatic yes. However, the EAT in Smith v Gartner UK Ltd UKEAT/0279/15/LA has seemingly given a different impression. The point was not properly ventilated in Smith v Gartner and, further still, the EAT’s discussion in respect of a claim under section 39(2) of the Equality Act 2010 (EqA 2010) is strictly obiter. The law is therefore in a state of flux and an appellate decision is required to settle the issue.

This blog is limited to the question of direct age discrimination. Be aware that such cases frequently lead to other arguments such as unlawful deduction from wages and indirect discrimination. Continue reading

REUTERS | Thomson Reuters

There are some phrases which make an employment lawyer’s heart sink, and pride of place amongst them undoubtedly goes to “but it was just office banter”. Usually a signal that something offensive has indeed gone on within the workplace, it might be thought that short shrift is likely to be given to such a defence by the employment tribunal. In fact, background context is key, and a culture of “banter” can, in the right circumstances, help to explain potentially discriminatory conduct and protect an employer from a discrimination claim. Such was the outcome at both first-instance and appeal to HHJ Stacey in Evans v Xactly Corporation Ltd UKEAT/0128/18. Continue reading

REUTERS | Yuriko Nakao

In Timis v Osipov [2018] EWCA Civ 2321, the Court of Appeal confirmed that employees who have been dismissed for making a protected disclosure can bring a claim against an individual co-worker for the detriment of dismissal, and a claim for vicarious liability against the employer, in addition to an unfair dismissal claim. 

While it is difficult to argue against the Court of Appeal’s reasoning, the decision creates some anomalies, and will raise interesting tactical questions for claimants and respondents alike.  Continue reading

REUTERS | Shamil Zhumatov

Internal investigations are increasingly being conducted by companies not only on regulatory grounds but also in response to employment issues such as whistleblowing and discrimination allegations. In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal has significantly widened the scope of legal professional privilege in the context of an internal company investigation. It will now be easier for the employer to assert privilege over employees’ witness statements and other documents generated in an investigation. Continue reading

REUTERS | John Kolesidis

Look no further than this press release from BEIS on 1 October 2018 to gauge the government’s enthusiasm for highlighting that it has been thinking about policy and issues other than Brexit over the last couple of years:

“The government has announced plans to ensure that tips left for workers will go to them in full. While most employers act in good faith, in some sectors evidence points towards poor tipping practices, including excessive deductions being made from tips left by customers. New legislation, to be introduced at the earliest opportunity, will set out that tips must go to the workers providing the service.”

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REUTERS | Denis Balibouse

Deciding whether to provide discovery of a given document can be one of the most challenging aspects of dealing with a tribunal or court claim. This is particularly so where the document raises issues of confidentiality. Refusing to disclose a document, or series of documents, can result in an application for specific disclosure. The over-arching test to be applied in determining such an application is whether an order for disclosure is necessary for fairly disposing of the proceedings. A judge considering such an application is exercising a discretion. Accordingly, to successfully challenge it on appeal, it must “exceed the generous ambit within which reasonable disagreement is possible” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343). Continue reading