Welcome to the latest edition of Need to Know, Winckworth Sherwood’s Employment and HR newsletter. In this edition we take a look at personal information in the workplace, pregnancy and maternity discrimination and dismissal in the context of an employee’s religious expression.
Is “Personal” Information Ever Actually Personal In The Workplace?
The European Court of Human Rights recently held in Garamukanwa v United Kingdom that dismissing an employee because of material found on his phone during a police investigation was not a breach of the employee’s right to privacy. Leah Caprani explains the implications of this decision for employers going forward.
Pregnancy and Maternity Discrimination – Where are we now?
Pregnancy and maternity discrimination has returned to the forefront of public debate, but will the government continue to drag its feet on this issue or is some real change on the horizon? Harriet Calver examines the recent developments in this area.
It’s The Way You Said It
Alex Bartlett explores the recent decision in Page v NHS Trust Development Authority which sheds further light on dismissal in the context of an employee’s freedom of religious expression. The Tribunal held that a Non-Executive Director was not discriminated against when an NHS Trust failed to renew his contract after he spoke out against the adoption of children by same-sex couples. Crucially, the Trust had based its decision on the manner of the employee’s objection, rather than the content.
Express HR: Employment law developments in bitesize chunks
• The Women and Equalities Select Committee has published a report finding that non-disclosure agreements in the settlement of discrimination cases sought to cover up allegations of unlawful discrimination or harassment rather than investigate them; it has made recommendations to the Government aimed at discouraging such practices.
• The Supreme Court in Tillman v Egon Zehnder Ltd, its first decision on this issue in 100 years, handed down a landmark decision on 3 July 2019 that offending words could be removed from a restrictive covenant in order to make it enforceable thereby overturning the previous more restrictive Court of Appeal decision.
• The Court of Appeal in Chief Constable of Norfolk v Coffey has held that it is unlawful disability discrimination to refuse employment because of a perception of a risk of future inability to work in a particular role.
• The Employment Appeal Tribunal in Kelly v Royal Mail Group Ltd held that, in the absence of other evidence, an employer’s reliance on occupational health reports to determine whether the employee is disabled will not necessarily be considered a rubber-stamping exercise.
• The Court of Appeal in Mackenzie v The University of Cambridge has ruled that an unfairly dismissed employee cannot get an injunction ordering re-engagement (or reinstatement) in circumstances where the employer has already paid the mandatory award for refusing to reinstate, thereby refusing to compel the employer to re-employ the employee.
• EU has adopted a new Directive on work-life balance for parents and carers designed to encourage family-related leave, flexible working arrangements and leave to care for relatives in need of support (for example by removing a prior service requirement for taking paternity leave); member states will have 3 years to implement the Directive into domestic law.
• The Advocate General gave an opinion in TSN v Hyvinvointialan that member states can limit carry over of holiday in cases of sick leave to the four weeks’ leave under the Working Time Directive; if the European Court of Justice chooses to follow the Advocate General’s opinion, the case will confirm the existing position in UK law.
• Employment Lawyer’s Association has recently published the results of its annual survey of the Employment Tribunals which found that, amongst other things, over 66% of respondents experienced an increase in the time tribunals are taking to deal with the service of claims (this is down from 75% last year); the survey concluded that that, at present, “Tribunal administration is just not coping with the demands on it”.