Employment Up to Date - August 2019

Welcome to the August edition of Up to Date. Read on for a roundup of the latest news and developments in relation to employment and immigration.

Tightening up the use of confidentiality clauses and non-disclosure agreements (NDAs) in employment contracts and settlement agreements

The Government has confirmed that it will legislate to ensure that there are clear limitations to confidentiality clauses which are easily understandable by those who sign them and that individuals receive independent legal advice on the extent of a confidentiality clause when they sign a settlement agreement.  New drafting guidance will be provided and enforcement measures introduced for clauses that do not comply. (Response to consultation on proposals to prevent misuse in situations of workplace harassment or discrimination)

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Covert recordings:  Misconduct or a breach of trust and confidence?

The Employment Appeal Tribunal (EAT) has found that, although it is good practice for employees and employers to state whether they intend to record a meeting and that "it will generally amount to misconduct not to do so", this is not necessarily a breach of the implied term of mutual trust and confidence (Phoenix House Ltd v Stockman & Anor)

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Social Media: When is a post on a private Facebook page made 'in the course of employment'?

The EAT has recognised that it can be difficult to ascertain whether there is a sufficient connection between an activity carried out on a personal social media account and a person’s employment, especially as social media usage continues to increase. In this case, the EAT held that a post on a private Facebook page was not made "in the course of employment", even though some work colleagues saw it (Forbes v LHR Airport Limited)

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Immigration: How will the Prime Minister's plans to make the UK a "science superpower" affect the immigration system?

In this briefing our Immigration team provides an update on the Prime Minister's announcement about a shake-up of the Immigration Rules and sets out the main changes to the Tier 2 policy guidance and the Appendix D guidance for sponsors.

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Other headlines include:

Agency workers: Court of Appeal finds that an agency worker's right to equal treatment after 12 weeks does not include an entitlement to the same number of contractual hours as a direct recruit (Kocur v Angard Staffing Solutions Ltd and anor)

Regulation 5 of the Agency Worker Regulations (date) (AWR) entitles agency workers who have worked for a hirer for 12 weeks or more to the same basic working and employment conditions as a directly-recruited employee.  

In this case, an agency worker complained that Regulation 6(1)(b) AWR (which defines "relevant terms and conditions" as including the "duration of working time"), meant that he was entitled to be allocated equivalent working hours as directly-recruited employees.  

However, the Court of Appeal (CA) found that Regulation 6(1)(b) is only intended to refer to terms which set a maximum length for any such period. This means that the AWR do not entitle agency workers to work the same number of contractual hours as a directly-recruited employee.  

The CA rejected the agency worker's argument that that the phrase "duration of working time" included any term specifying the amount of work that the worker is both entitled and required to work. The CA referred to the purpose of the Agency Workers Directive (which is the originating legislation, implemented in the UK by the AWR). The CA noted that purpose of the Agency Workers Directive is to ensure equal treatment of agency workers and directly recruited employees while at work and in respect of the rights arising from their work, but not in respect of the amount of work that they are entitled to be given.  

Health is everyone's business: The government has launched a consultation setting out proposals which aim to reduce ill health-related job loss (Health is everyone's business)

The consultation sets out proposed changes to support people with health conditions to remain in work, a new right to request workplace modifications on health grounds, improving access to high quality and cost-effective OH services for employers and the self-employed and reforming the statutory sick pay system (SSP) so that it is better enforced and more flexible in supporting employees and by extending protection to those earning less than the Lower Earnings Limit who do not currently qualify for SSP. It is estimated that the proposals would entitle two million more employees to SSP than currently. The consultation closes on 7 October 2019.

Addressing unfair flexible working practices: The government has launched a consultation seeking to provide new rights and extra protections for flexible workers (Measures to address one-sided flexibility)

This consultation seeks views on providing a right to reasonable notice of working hours, providing workers with compensation for shifts cancelled without reasonable notice and additional protections for those who are penalised for not accepting shifts at the last minute. It also seeks views on what guidance government can provide to support employers and encourage best practice to be shared across industries. The consultation closes on 11 October 2019.

Goods and service discrimination: The long-running case of Lee v Ashers Baking Company and others has been referred to the European Court of Human Rights (ECHR)

At the end of 2018, the Supreme Court held that Ashers Bakery Limited, a Christian-owned Belfast bakery, had not discriminated against the Claimant by refusing to bake a cake with the message "Support Gay Marriage". The Supreme Court found that the bakery's refusal was due to the message on the cake rather than the Claimant's sexual orientation. The Supreme Court's decision overturned the previous decisions of the Northern Ireland County Court and the Northern Ireland Court of Appeal, who had found in the Claimant's favour. The Claimant has now taken the case to the ECHR.