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The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees.

Confidential references become more confidential

The Data Protection Act 1998, under the heading “Confidential references given by the data controller“, stated that personal data were exempt from the right of access:

“if they consist of a reference given or to be given in confidence by the data controller for the purposes of … employment, or prospective … employment, of the data subject” (emphasis added) (paragraph 1, Schedule 7). Continue reading

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As most employment lawyers will testify, whistleblowing claims are easy to allege, but hard to prove and even harder to win.

Much of this difficulty stems from the fact that, in my experience, whistleblowing claims are often not properly analysed prior to lodging the ET1. This results in:

  • A failure to make an informed decision on whether the claim should be brought at all.
  • Deficiencies in the pleadings.

The importance of undertaking a rigorous analysis of a whistleblowing complaint at an early stage of the litigation is under appreciated. Whistleblowing claims are often deployed as an “add-on” for claims of ordinary unfair dismissal for high earning individuals, so as to raise the spectre of a large award during negotiations. However, if the claimant and his or her advisers have not satisfied themselves that the whistleblowing claim is at least sustainable, it is a dangerous game. Employment tribunals are alert to cynical whistleblowing complaints and, once pleaded, a weak whistleblowing claim will suffer one of two fates: withdrawal by the claimant at a later stage or dismissal by the tribunal at a preliminary or final hearing. Both outcomes carry possible costs consequences. Continue reading


In May 2018 the deputy governor of the Bank of England used the word “menopausal” to describe the country’s sluggish economy. While it was good to read the backlash and  criticism of his choice of language (and an apology from him), it is clear that we have a long way to go.

We need to talk openly about the fact that seven out of ten women of menopausal age are in work in the UK. The average age of menopause is 51 and the often challenging “transition” stage can start several years earlier. Women of course encounter the transition with varying degrees of impact. Continue reading

REUTERS | Carlos Barria

Those interested in the tests for employment status continue to be rewarded by the stream of gig economy cases working their way upwards from the Employment Tribunal (ET), through the Employment Appeal Tribunal (EAT) and beyond.

In parallel, the Tax Chamber of the First-tier Tribunal (FTT) has been grappling with the issue of employment status as it arises in a legislative context colloquially known as IR35. This refers to legislative provisions intended to tackle disguised employment. Briefly, if a worker contracts through a personal service company (PSC) with an end client, IR35 interposes a hypothetical contract between the contractor and the end client, and asks whether that contract would be one of employment. If the answer is “yes” then the PSC is treated as the contractor’s employer and the payments to the PSC by the end client are taxed accordingly. In this way, specialist tax tribunals have come to deal with questions usually dealt with only by the ET. Continue reading

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The Shared Parental Leave Regulations 2014 (SI 2014/3050) provide the non-maternal parent or carer (usually, but not always the father) with the right (subject to statutory conditions) to take leave from work to share in a baby’s primary care. A DBEIS press release earlier this year suggested take-up of shared parental leave (SPL) may be as low as 2%. There may be many reasons for this, such as:

  • The longstanding cultural status quo that childcare is the mother’s role.
  • Fear of workplace repercussions.
  • Gender pay gaps rendering the male partner the more likely principal breadwinner.
  • Lack of knowledge of the right.
  • Complexity of the forms.

One possible reason derives from the asymmetry between contractual maternity leave pay provisions and those for SPL.

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Employment tribunal claims dealing with the issue of personal liability are being considered with increasing frequency. Claimants often only consider such claims due to concerns over the possible insolvency or dissolution of a former employer. In this situation the opportunity to pursue a claim against an individual may be the only means to obtain a financial remedy. The EAT decision in Murray v Maclay Murray & Spens LLP UKEATS/0004/18 explores this trend in the context of indirect discrimination claims and provides guidance on the circumstances in which such a claim can be pursued. Continue reading

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It has never been more important for the country to have a strong, confident and effective equalities regulator. A cursory look at social media tells you why. Whether it’s allegations of sexual harassment in Parliament, or of racism at the Football Association, or the gender pay gap at the BBC, discrimination is everywhere. Continue reading