Employment: NI Court of Appeal: reasonable adjustments and autism

In British Telecommunications PLC v Kevin Owen Meier [2019] NICA 43 the Northern Ireland (NI) Court of Appeal considered whether an employer had failed to make reasonable adjustments to a psychometric test in relation to a neuro-diverse job applicant. Mr Meier graduated from Queen’s University Belfast with a 2.1 degree in computer science.  He has a high IQ.  He has Asperger’s Syndrome, dyslexia and dyspraxia.  During his educational career he had the benefit of note-takers for classes, scribes, a prompter, an Asperger’s mentor and extra time for examinations.  In March 2017 he applied for a job with British Telecommunications PLC (BT), who had advertised network design and engineering opportunities for graduates. BT is a member of the Disability Confident Scheme (DCS), which aims at helping organisations to employ and retain people with disabilities.  DCS members are expected to take active steps to attract and recruit applicants with disabilities, and to provide a fully inclusive and accessible recruitment process.  Under its ‘Guaranteed Interview Scheme’, BT guaranteed to interview any applicant with a disability whose application met the minimum criteria for the position.  ‘Minimum criteria’ meant ‘evidence in the application form which demonstrates that the (applicant) generally meets the level of competence required for each competence as well as meeting any of the qualifications skills or experience defined as essential.’ BT’s graduate Read Full Article…

Employment: Government launch consultation on sexual harassment in the workplace

The Government Equalities Office has launched a consultation on Sexual Harassment in the Workplace.  The consultation, which was published on 11 July 2019, follows the Government’s response to the report on sexual harassment in the workplace by the Women and Equalities Select Committee in December 2018. The consultation is split into a set of online questions, which are designed to be quick and easy for anyone to respond to, and a more technical document that invites views on details of the law. Views are sought particularly from those who have experienced sexual harassment or other types of discrimination at work, including volunteers and interns, those who have managed or supported someone who has experienced sexual harassment or other types of discrimination at work, and  anyone who has thought about taking a case of any type of discrimination or harassment to an employment tribunal. Particular issues that may be able to be dealt with are the following: How best to make sure employers take all the steps they can to prevent harassment from happening Strengthening and clarifying the law so that it is clear employers should protect their staff from being harassed by clients, customers, or other people from outside their organisation Whether interns and volunteers are adequately protected by current laws Whether people should be given longer to take a Read Full Article…

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…

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…

Employment: Government Equalities Office – guidance to help employers tackle gender pay gap

On 8 February 2019 the Government Equalities Office (GEO) published two sets of guidance titled Eight ways to understand your gender pay gap and Four steps to developing a gender pay gap action plan.  According to the GEO, these publications aim to assist employers with tackling gender pay gap issues. The new guidance follows the publication in January 2019 of a GEO research report titled Employers’ Understanding of the Gender Pay Gap and Actions to Tackle it: research report on the 2018 survey.  The report provided results from a 2018 research exercise which was concluded shortly after the deadlines for employers in England, Wales and Scotland to publish their first set of gender pay gap (GPG) data under the Equality Act 2010 (Gender Gap Pay Information) Regulations 2017.  It consisted of a telephone survey of 900 employers (each with 250+ staff), and 30 follow-up qualitative interviews.  It covered employers’ understanding of the GPG, their experiences of complying with relevant legislation and the actions taken to close their GPG (or to ensure that one did not develop). The majority of respondents (82%) believed they had a good understanding of what the gender pay gap is and how it is calculated, an increase from 48% in 2017.  A further 16% felt they had a reasonable understanding but were unsure on the specifics, Read Full Article…