Governance: UUK and NUS: report on BAME student attainment

Universities UK (UUK) and the National Union of Students (NUS) have published a report into the Black, Asian and Minority Ethnic (BAME) attainment gap in higher education and the action they propose is taken by universities to reduce it. The report, titled Black, Asian and Minority Ethnic student attainment at UK Universities: #closingthegap, states that it was produced after consultation with universities, student unions and external bodies, and: presents sector data on ethnicity and attainment discusses factors identified during the consultation as having an effect on ethnicity attainment differentials at degree level identifies steps that the UUK and NUS recommend are taken by universities as frameworks for accelerating progress provides brief guidance on how to implement positive action and ‘positive discrimination’ whilst complying with equality law, including examples of what types of action are likely to be lawful or unlawful. A number of briefings, reports and resources on BAME attainment, including equality and diversity data, are provided by the Office for Students (OfS) here.

Employment: Internal disciplinary proceedings and criminal proceedings

In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, the Court of Appeal considered an appeal by a Trust against the decision of the High Court to grant an interim injunction preventing it from continuing with a disciplinary investigation, amongst other things.  The case concerned a consultant in anaesthetics (the employee), and the death of two patients in his care.  Disciplinary proceedings were commenced, and the police were notified.  The CPS did not charge the employee for the first death due to insufficient evidence, although it was in the process of investigating the second patient’s death. The High Court decided that the Trust was in breach of an employment contract for: failing to pay the employee’s salary during the period when he was the subject of an interim suspension by the Interim Orders Tribunal of the Medical Practitioners Tribunal Service for proposing to hold a hearing to discuss the termination of the employee’s contract for his failure hold the requisite licence to practise with the General Medical Council because of the temporary withdrawal of his licence for the period of suspension and for breaching the implied term of trust and confidence by pursuing their own internal disciplinary process at the same time as an ongoing police investigation On the first point, the Court of Appeal considered Read Full Article…

Employment: High Court – Employer not responsible for injury at Christmas party

In Shelbourne v Cancer Research UK [2019] EWHC 842 (QB) the High Court upheld a county court judgment that an employer was not liable in negligence for an injury sustained at its Christmas party by one of its employees, nor was it vicariously liable for the actions of the individual who caused the injury. In order for the tort (or delict, in Scottish law) of negligence to arise, it must be established that the defendant owed a duty of care to the claimant.  A three-fold test has been set by case law, in order to determine the presence of such a duty: was the damage foreseeable? is there a sufficiently proximate relationship between the parties? in all the circumstances, is it fair, just and reasonable to impose a duty of care? Vicarious liability refers to strict, no-fault liability for wrongful actions or omissions of another person.  Whether vicarious liability can be attributed to a person (natural or legal) is generally decided on the basis of a two-stage test: is there a relationship between the primary ‘wrongdoer’ (typically, an employee) and the person alleged to be liable (typically, an employer), which is capable of giving rise to vicarious liability? is the connection between that relationship and the wrongful act or omission such as to make it just and reasonable to hold Read Full Article…

Governance: Bribery Act 2010: post-legislative scrutiny

On 14 March 2019, the House of Lords Select Committee on the Bribery Act 2010 published its ‘Report of Session 2017-2019 The Bribery Act 2010: post-legislative scrutiny’ as to whether the Act is achieving its intended purposes.  The Select Committee was appointed by the House of Lords on 17 May 2018 to consider and report on the Bribery Act 2010.  The Act received Royal Assent on 8 April 2010 and came into force on 1 July 2011. In its principal conclusions and overall assessment, the report states that ‘the Act is an excellent piece of legislation which creates offences which are clear and all-embracing’, and the new offence of corporate failure to prevent bribery is regarded as ‘particularly effective’.  The report reviews the legislation and makes certain recommendations. The report highlights that the ‘Ministry of Justice Guidance’ (guidance), published under s.9 of the Act,  is less successful in providing SMEs with the information to assist them with adopting a formal anti-bribery policy, and could provide companies considering exporting with more assistance on the point at which hospitality would begin to influence the recipient’s course of action.   It is recommended that the guidance makes it clear that businesses need to conduct risk assessments, and provide staff training on procedures (see paragraph 194).  It is also recommended that the Secretary of State Read Full Article…

Data protection: Tribunal decides on ICO Information Notice under DPA 2018

The First-tier Tribunal (information division) has considered an appeal against an Information Notice issued by the Information Commissioner under section 142, Data Protection Act 2018 (DPA 2018).  In its decision (issued in January 2019), the Tribunal noted that this was the first such appeal to reach final determination under the regime introduced by the DPA 2018. The Information Commissioner has power, under the DPA 2018, to issue Information Notices requiring controllers and processors to provide her with information that she ‘reasonably requires for the purposes of carrying out’ her statutory functions. In July 2018 the Information Commissioner launched an investigation into the data protection compliance of Doorstep Dispensaree Ltd (the company), a pharmacy delivery service operating in the south of England.  The investigation was prompted by a report from the Medicines and Healthcare Products Regulatory Agency concerning the manner in which the company appeared to be processing personal data.  During the investigation, the Information Commissioner initially requested that the company provide relevant information voluntarily.  The company refused to provide the requested information.  The Information Commissioner followed up with a formal Information Notice. Section 143(6) DPA 2018 provides that ‘an Information Notice does not require a person to provide the Information Commissioner with information if doing so would, by revealing evidence of the commission of an offence, expose the relevant person Read Full Article…

Employment: Government consultation on confidentiality clauses and workplace harassment or discrimination

On 4 March 2019, the Government published an open consultation called: ‘Confidentiality Clauses: measures to prevent misuse in situations of workplace harassment or discrimination’. The purpose of the consultation is to seek evidence and views on the use of confidentiality clauses – also known as non-disclosure agreements or NDAs – in the employment context, and to propose further regulation to tackle their misuse. The consultation uses the term ‘confidentiality clause’ whether as a stand-alone agreement or part of a wider contract or settlement agreement. It is acknowledged that confidentiality clauses have an important role to play in protecting trade secrets or other confidential information pertaining to an employer. There are certain existing legal limitations on confidentiality clauses, for example, they cannot override anti-discrimination law under the Equality Act 2010, or remove the protections around making a protected disclosure (‘whistleblowing’).  Also, a stand-alone confidentiality clause cannot prevent someone taking a matter to an employment tribunal, however, a valid settlement agreement can waive this right. There is evidence to suggest that they have been used to intimidate victims of harassment or discrimination from disclosing their treatment to the police or other people.  Therefore, the consultation seeks to examine: whether there should be more limitations on confidentiality clauses in the employment context, to make it easier to understand when workers are able to disclose Read Full Article…