REUTERS | Mike Blake
July 11, 2019

Positive action or discrimination? A fine line

Improving workforce diversity is high on the agenda for most organisations. The 2018/19 gender pay gap reports have been published and most employers have similar gaps to last year (and, in some cases, increases). While employers may not have had a chance to put in place any action plans before the latest set of reports, their public nature is likely to put increasing pressure on organisations which fail to narrow the gender pay gap. In addition, the government is currently considering the feedback from their recent consultation on ethnicity pay gap reporting and there seems little doubt that this obligation will be introduced in due course. Continue reading →

REUTERS | Lucy Nicholson
June 6, 2019

Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE: practical implications and recording working time

Introduction and substance of the claim

In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18) EU:C:2019:402, a group action was brought by a number of trade unions. The aim of the claimants was to obtain a declaration of the existence of an obligation on Deutsche Bank SAE to set up a system which records the actual number of hours worked daily and makes it possible to check that the working times laid down in legislation and collective agreements are properly adhered to. Continue reading →

REUTERS |
May 28, 2019

Disciplinary proceedings and parallel criminal investigations

Following the Court of Appeal decision in North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, is it now “beyond a reasonable doubt” that employers can continue internal processes before the conclusion of criminal proceedings?

Put simply: not quite. However, this is a very helpful case for employers, considering whether there will be a breach of the implied term of trust and confidence by pressing ahead with internal disciplinary proceedings where there is a parallel police investigation into the same issues under way. Continue reading →

REUTERS | Dominic Ebenbichler
May 20, 2019

Mental health first aid at work

The definition of mental health as “a person’s condition with regard to their psychological and emotional well-being” isn’t suggestive of a negative state. Yet the stigma surrounding it is one of weakness and indignity. Conversely, supporting those with physical impairments has for decades required employers to provide adequate and appropriate equipment, facilities and personnel to ensure that employees receive immediate attention if they are injured or taken ill at work. Continue reading →

REUTERS | Toby Melville
May 20, 2019

Equality deferred: the equality clause fails to correct unequal pay

There has been a lot of discussion recently about the inequality of pay between men and women. After discussing the various controversies, this blog focuses on whether the statutory equality clause mechanism is fit for purpose in addressing the issue of unequal pay. Recognising there is no simple panacea for inequality of pay, it argues that the current equality clause procedure requires reform, along with a greater emphasis on pay transparency. Continue reading →

REUTERS | Fayaz Kabli
April 30, 2019

Reasonable and proper cause for suspension

In The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322, the Court of Appeal confirmed that suspension of an employee is to be treated like any other alleged breach of the implied term of mutual trust and confidence: the question is whether the employer’s conduct, without reasonable and proper cause, destroys or seriously damages the relationship of trust and confidence. Asking whether suspension is a “neutral act” is unlikely to assist in resolving it, because it is a highly fact-specific question. Continue reading →

REUTERS |
April 25, 2019

Data protection implications of the Senior Managers and Certification Regime (or SM&CR + GDPR = DPIA + FPN)

Overview

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 →

REUTERS |
March 28, 2019

Inclusivity and the necessary art of gender-neutrality

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”).

Continue reading →

REUTERS | Yves Herman
March 4, 2019

#Metoo in financial services

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
February 27, 2019

Balancing the Scales of Justice: discharging the burden of proof in discrimination claims

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.

Continue reading →