At FG Solicitors we generally partner with employers to manage the employment relationship. As a result of years of experience we have developed a unique insight into all the component parts of the employer/employee relationship.
The current climate, however, appears to be one of uncertainty, with regular reports of well-known high street names and brands downsizing significantly or ceasing to trade. This has led to an erosion of confidence generally within the business community.
For some employers, this means a realignment/restructure/reorganisation of the workforce in line with revised corporate objectives.
For others, downsizing is a corporate necessity.
In these situations, where FGS is not acting for the employer, we have the expertise to provide a support service to represent employees on a collective and individual basis in a structured way, which gives the following benefits to the employer:
– We can minimise the disruption to the daily operations of the business and the employees by attending on site and liaising face to face with the potentially affected employees or their elected representatives.
– This is a time and cost effective solution as it can dispense with the need for employees to take time off to seek advice and sign documents
– We can reduce cost by forward planning and liaising with the company’s legal advisers;
– Advise employees collectively on any settlement agreements thereby saving the employer costs at a time when preserving cash is critical
– There will be consistency and certainty of approach as we will be involved from the inception of the process and will be the focal point for employees or their representatives.
– The company will be offering a choice to the employees with FGS giving independent advice to them and this will help to underline the company’s commitment to its pastoral care obligation in the most challenging of circumstances for the employer and the employees.
Jack Khurana – Senior Associate Solicitor at FG Solicitors
Hardly a day goes by without another high profile scandal with unsavoury allegations of sexual discrimination or harassment.
Not even our esteemed Prime Minister can escape the scandal of the alleged “under the table thigh squeeze”.
There have been many cases of alleged sexual misconduct and harassment in the workplace so it’s a brave Employment Tribunal that flies in the face of the current climate and concludes that sexual harassment has not been proven.
This was so in the recently reported case of Raj –v- Capita BS. Raj was employed as a Customer Service agent, whose employment was terminated during the probationary period. Raj complained of sexual harassment against Ward, the line manager, who had on several occasions, in an open plan office, stood behind and massaged Raj’s shoulders, neck and back.
Raj argued, in accordance with the wording of the relevant legislation, that this was unwanted conduct either of a sexual nature or related to Raj’s sex within s.26 of the Equality Act 2010.
Having heard the evidence the Employment Tribunal rejected the claim for sexual harassment and found that although Raj had proven physical contact – massages lasting for two or three minutes, long enough to make Raj feel uncomfortable, and that this had the effect of creating an intimidating, hostile, degrading humiliating or offensive environment. However, the Tribunal concluded that the unwanted massage was not conduct of a sexual nature.
Rather, the Tribunal concluded, the reason for the massages was misguided encouragement. Contextually, this was a manager standing over a sitting team member. The area of contact, the Tribunal concluded, was with a gender neutral part of the body, albeit in plain sight of other employees in the open plan office. Yes the actions were unwise and uncomfortable, but not sexual harassment.
On appeal, the Employment Appeal Tribunal upheld the decision on the basis that the Tribunal was entitled to find that while the conduct was unwanted, it wasn’t sexual in nature or related to Raj’s gender.
Arguably, when a man stands behind a woman and massages her back, neck and shoulders in the privacy of their own home, with consent, that is acceptable.
Equally, it’s been argued that, in the workplace, when the woman does not invite such attention, it’s clearly harassment to massage her shoulders, neck and massage.
It may be natural to assume that Raj is female and Ward is male. But that assumption would be wrong in this case. Here the attention and massages were uninvited by Mr Raj – he didn’t ask his female team leader Ms Ward to massage his back neck and shoulders, but when she did, the Tribunal concluded on the facts and evidence before it, that she was encouraging him to improve his performance.
Commentators speculate that had the gender roles been reversed, would Mr Raj’s actions in “encouraging” Ms Ward with unwanted massages on her neck back and shoulders have been construed as of a sexual nature or related to Ms Ward’s sex?
Employers should always bear in mind that all cases and decisions are fact specific. We at FG Solicitors are experts in all areas of Employment Law and HR and we can guide your business through the minefield of discrimination laws and ensure that you are properly protected against claims like this one. Feel free to call us on 0808 172 9322 for a no obligation discussion.
A strong HR function needs to be supported by legally compliant and clearly written employment documentation.
A failure to regularly take stock and ensure that these documents are fit for purpose can undermine the strategic aims of your HR team and managers. Out of date documentation will impact on operational efficiency, limit managers’ ability to manage and increase the likelihood of legal claims and financial penalties.
Disputes can be minimised if up-to-date contracts, policies and procedures are in place and are effectively communicated to the workforce. Employers who want more certainty should ensure their risk management programme includes an annual audit of employment practices and documentation.
The annual audit
A successful audit will identify whether the documents comply with current legislation and reflect current working practices.
FG Solicitors’ specialist independent audit continues to highlight the following problem areas which are often overlooked:
- Legislative changes have not been addressed
Developments in legislation and regulatory requirements can bring about additional obligations which need to be managed:
- Even now employment documents do not reflect current rights and obligations under the revised data protection laws (and GDPR). Employees who manage data need to know what is required of them to minimise the risk of a data breach or in the event there is a breach, they need to know what to do. The maximum penalty for a breach is the higher of 20 million Euros (or equivalent in sterling) or 4% of the total annual worldwide turnover.
- Modern slavery and human trafficking legislation is also often overlooked. Many organisation will not be required to publish the mandatory modern slavery and human trafficking statement, as the £36m turnover threshold is not triggered. It is however essential that steps are taken to tackle slavery and human trafficking within any business and in its supply chain. Many customers now only want to do business with suppliers who can demonstrate that they are safeguarding against modern slavery. Given the broader commercial considerations, a good starting point is a policy in an employee handbook supported by a statement demonstrating the measures that have been taken.
- Managers are still unsure about family friendly rights. In the absence of clear policy guidance mistakes are frequently made in relation to dependent care leave rights and flexible working applications. The highly publicised and complex shared parental leave regime, which gives employees who are parents a new, more flexible way to take leave in the first year after the birth or the adoption placement of a child are often overlooked in employee handbooks. A misunderstanding about rights and obligations can lead to costly disputes.
- Poorly drafted post-termination restrictions
It is only when a valuable client is lost, an entire team follows their former manager or confidential information is misappropriated, that an employer reaches for the employment contract in search of much needed protection. The discovery is usually that there is little or inadequate protection for the business. An investment in carefully drafted post-termination restrictions and confidentiality provisions that are likely to withstand judicial scrutiny are a powerful weapon when the business is under attack from an ex-employee’s competitive activities. Clauses that deal with garden leave, payments in lieu, the use of social media and intellectual property are also an effective means of protecting the business and should be incorporated in the employment contract.
- A lack of contractual flexibility
A common mistake it to make the employee handbook contractual so that it forms part of the employees’ terms and conditions. This is not a wise decision as there will be a legal obligation to follow rules and procedures, which may not always be convenient. It may also be difficult to make changes in response to business change without employee consultation.
While employee engagement about changes to contractual terms is always preferable due to the legal risks associated with varying contracts unilaterally, an express provision setting out the circumstances where changes may be made will always put the business ahead.
A lack of flexibility in the documentation can make it harder to respond to unexpected events or specific HR and employment issues.
Employers who want to be confident that they are complying with their legal obligations should ensure that their employment documentation is both legally compliant and business relevant.
If you want to know more about our HR and employment law document audit and have more certainty when managing your business, please contact a member of the team at FG solicitors by sending an email to email@example.com or by calling 01604 871143.
A landmark case
For the first time in 100 years the Supreme Court has scrutinised an employee non-competition clause. The focus in the case of Egon Zehnder v Tillman was on how the clause had been drafted and whether it was unreasonable.
What was under the spotlight?
Ms Tillman a long standing member of staff in the recruitment business of Egon Zehnder decided to leave and join a competitor. The employment contract contained a relatively standard post-termination restriction preventing Ms Tillman from working for a competitor for a period of six months. More specifically, she agreed not to “directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company…”
Key considerations for the Supreme Court
The central issue was whether the non-competition clause was unenforceable; Ms Tillman argued that “interested in” prevented her from holding even a minor shareholding in a competitor, which would be an unreasonable restraint.
All post-termination restrictions are treated as void on public policy grounds. An employer must therefore ensure that a covenant goes no further than is reasonably necessary to protect its legitimate business interests; these interests are commonly confidential information and trade secrets, client/customer relationships and the workforce.
There are specific elements of a covenant that will be scrutinised when there is a dispute over the reasonableness of the restriction. Common elements being the duration or geographical scope of the provision. One other key factor often relied upon is whether any words which render the covenant unreasonable can be severed from the restriction to render the rest of the covenant enforceable.
As the lower courts could not agree on whether the clause in Ms Tillman’s contract was reasonable, the Supreme Court was required to intervene and decide whether the words “interested in” rendered the clause completely unenforceable or alternatively, by severing the offending words left Egon Zehnder with the protection of the remainder of the clause.
The Supreme Court considered the clause and concluded that the inclusion of the words “interested in” rendered the clause unenforceable as an unreasonable restraint. It confirmed however that by removing the offending words, Egon Zehnder was left with an enforceable non-competition clause.
The clarity from the Supreme Court should give employers more confidence when it comes to enforcing employee post-termination restrictive covenants. In the future, the courts will be prepared to cut out offending parts of a clause so that what remains becomes reasonable and enforceable.
Employers should not see this case as a green light to introduce wider and more restrictive clauses in the hope that if there is a dispute, the courts will apply a similar approach to the one adopted in this case.
The courts will never excuse poor drafting and will not re-write a clause; severance will only be used if the remaining parts of a clause make sense without adjustment to the overall effect of the restriction. Given this, severance should only be relied upon as a last resort, as it may not provide an absolute solution to restricting the competitive activities of an ex-employee.
The priority for employers
Employers should make properly drafted post-termination restrictions a priority and avoid a one-size fits all approach. To provide greater protection, regular reviews throughout the employment relationship are also important to identify if new restrictions need to be introduced in response to business change and job promotions.
If you want to protect against post-termination competitive activities, please contact a member of the team at FG solicitors by sending an email to firstname.lastname@example.org or by calling 01604 871143.
Riaz Bowmer – Consultant Solicitor at FG Solicitors
25 May 2018 marked a watershed in privacy and information rights with the implementation of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
Getting privacy right is more than ever a top priority for businesses who will need to continually change to meet the demands of the new laws.
Many people are aware of the new rights the GDPR brings, with increased protection for the public and increased obligations on businesses.
People increasingly want to know how their data is being used, and how it is being safely managed.
Year one of the GDPR has seen people realise the value and potential of their personal data. There is a greater awareness of the law, in particular the data rights of individuals, and a greater awareness of the role of the regulator where rights aren’t being respected.
In year two of the GDPR businesses will need to shift up a gear from their initial focus on baseline compliance to full knowledge and accountability of the risks to individuals in the way they process data and how those risks should be mitigated. Those with primary responsibility for this must be well supported and resourced from the top down with a culture that everyone has some responsibility for data protection.
The push to be ready for the GDPR prompted organisations to make significant changes in quick time. There is still a long way to go to truly embed the GDPR and to fully understand the impact of the new legislation. In an Information Commissioners Office (“ICO”) survey nearly 50% of respondents faced unexpected consequences as a result of the GDPR.
The ICO have said they will continue to focus on the areas identified as their regulatory priorities. These include: cyber security; AI, big data and machine learning; web and cross-device tracking for marketing purposes; children’s privacy; use of surveillance and facial recognition technology; data broking; the use of personal information in political campaigns; and freedom of information compliance.
So, what do businesses need to focus on? Perhaps it should be the adoption of a mind-set that the personal data they control or process is not theirs and it belongs to the data subjects. They must treat the data as something they are taking care of and are responsible for and not something that they own. The data needs to be secure at all times with the right protection in place to ensure only those who should use it or see it can do so.
Some practical matters to look at following initial compliance programmes may include:
1. Policies and procedures
Do your current policies and procedures need amending to ensure an on-going culture of data protection responsibility? These then need to be disseminated to the business, implemented, monitored and enforced.
2. Customer / supplier relationships
Do your contracts with your customers and your suppliers comply with the requirements of the GDPR? These may then need to be amended and brought into effect.
3. Privacy Impact Assessments
Do you understand the circumstances in which you are required to undertake Privacy Impact Assessments and are you set up to carry them out?
4. GDPR training
Do you have a programme for ongoing and periodic staff training? The IOC will want to know about what training has been undertaken if anything does go wrong.
5. Security breaches
Do your staff know what to do if there is a data security breach or if a Data Protection Authority commences any investigation or action?
Data Protection is now an integral part of a business’s operations and compliance should be viewed as a strategic advantage and not a problem that continually has to be managed. For guidance and support contact a member of the FG Solicitors team.