The Practical Lawyer


In-house counsel – should not influence disciplinary decision

In-house counsel and HR must be careful not to influence the decision of managers involved in any disciplinary matter. The purpose of the disciplinary investigation is to determine whether there is a prima facie case to answer. It is thus appropriate for in-house counsel to ensure that the investigation report does not influence any decision on whether there has been any misconduct.
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Business founder – not an employee

 A barrister set up what was considered a pioneering practice under the Legal Services Act by bringing two barristers and a solicitor into the same business to provide services for criminal clients. The three directors were paid by dividend but fell out and a co-founding barrister brought claims including unfair dismissal, breach of contract and wages claims. 
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Supporting trans employees – practical tips

Gender reassignment is a protected characteristic under s7 Equality Act 2010. Research suggests that a significant percentage of transgender employees experience harassment in the workplace and that many find it difficult to report this to their employer. It must be recognised that a lack of complaints about discrimination cannot be interpreted to mean that the workplace is free from discrimination and harassment. A useful article considers these issues and suggests the following practical tips for employers:
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Agency workers – not entitled to same hours as employees

The CA recently considered whether the Agency Workers Regulations 2010 (AWR) entitle agency workers to the same working hours as the hirer’s permanent employees. The agency worker had a placement with Royal Mail where he generally worked fewer than 20 hours each week. After a 12-week qualifying period, he became entitled to the same basic working and employment conditions as directly employed staff in certain respects including the duration of working time. He argued that this entitled him to the same weekly working hours as Royal Mail employees.
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Family leave policies: maternity – suggested content

We reported in our July/August edition (p11) on the case of Ali v Capita [2019] in which the CA concluded that the purpose of shared parental leave is the welfare and care of the child so the correct comparator for a claim by a man is a woman who is taking shared parental leave. Maternity pay is not a suitable comparator for the pay given for shared parental leave. An article considers what family leave policies should contain in the light of this and other cases and the forthcoming right to parental bereavement leave. It is important for employers to get this right as employees are protected from suffering detriment or dismissal for exercising their right to take family leave.
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Failing to prevent harassment – employer not liable

The Equality Act 2010 provides that it is against the law to discriminate against anyone because of certain protected characteristics, one of which is race discrimination. An NHS worker was subjected to a serious assault and to racist abuse from a patient. He brought proceedings for direct and indirect race discrimination and harassment. His claim for indirect race discrimination was successful because it was found that the NHS trust did not have a comprehensive system in place for reporting occasions of racial abuse.
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Age discrimination – failure to train

The Equality Act 2010 provides that it is against the law to treat someone less favourably than someone else because of a protected characteristic such as religion, sex, gender reassignment or age. It is disappointing to see a large employer failing to meet these standards.
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Disciplinary process – external bodies

 A useful article considers two recent cases on the issues that can arise for employers carrying out a disciplinary procedure when an external body becomes involved eg a regulatory body, police, a court or tribunal. The decisions provide guidance to employers on how to act when an external process, be it a regulatory or criminal investigation or critical court judgment, calls an employee’s conduct into question. The lessons for employers are as follows:
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Settlement agreements – a reminder

The EHRC guidance contains a helpful summary as to the key requirements of a settlement agreement – which is a contract under which the worker gives up their right to pursue one or more employment claims that they may have against their employer. In return, the worker receives financial compensation, or some other form of compensation, from their employer.
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NDAs – guidance

The use of NDAs in an employment context has been widely reported on and we have covered them in our February 2019 (pp12 and 34) and April 2019 (p12) editions. Practitioners and their employer clients should note that guidance has been issued recently by the Equality and Human Rights Commission on the use of NDAs (referred to as confidentiality agreements in the guidance) in discrimination cases. Some of the key recommendations in the guidance are:
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A vegan is someone who does not eat or use animal products. 'Ethical' veganism is more than just not eating or using animal products – it goes beyond this in that ethical vegans try to exclude all... Read more...
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