The Senior Managers and Certification Regime (SM&CR) will apply to solo-regulated firms from 9 December 2019. In order to implement SM&CR and comply with it on an ongoing basis, such firms will have to process a significant amount of personal data about their staff.

We recommend SM&CR project leads and data protection officers ensure that data protection issues are addressed in your SM&CR project plan, including conducting a data privacy impact assessment and a review of fair processing notices as well as updating record retention policies and procedures. Continue reading


Last year, we noticed an increase in the number of client enquiries about gender-neutral documents. This reflects a wider discussion about sex and gender in society. While the UK’s national anthem changes according to the monarch, in 2018 Canada’s Senate approved altering the words of O Canada to make the English language version gender-neutral (replacing “in all thy sons command” with “in all of us command”).

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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