Tag: Employment rights

A Non-Disclosure Agreement (NDA) is a legal contract used to prevent people from discussing confidential information. In employment law they are often parts of a contract, or sometimes a standalone contract between employees and their employer.

Typically NDAs prevent employees and former employees from making information public, they can sometimes be referred to as ‘gagging orders’ or ‘confidentiality agreements’ or may be included within a settlement agreement when leaving employment.

Why use a Non-Disclosure Agreement?

NDAs have a valid use to protect commercially sensitive information such as inventions, ideas or anything that may damage a company’s reputation. They may be signed for instance by parties contemplating the sale and purchase of a business.

The Women and Equalities Select Committee (WESC) has recently published a report addressing the issues and is specifically concerned by the use of gagging clauses to settle discrimination and harassment claims, arguing that it means that these cases are not being properly investigated and that they cause an imbalance of power between employer and employee to the detriment of the employee.

What does a Non-Disclosure Agreement cover?

NDAs cannot stop an employee’s reported alleged illegal acts. If a manager or colleague faced allegations of or fraud, for instance, reporting these to the police would not be prevented.

Allegations of an employer making inappropriate comments, or bullying could be covered. However bullying may be illegal if it relates to certain protected characteristics such as race, religion, age, disability or sexual orientation.

The length of time for which an NDA applies will vary for each agreement.

Call our specialist solicitors on 0808 231 1320

Are Non-Disclosure Agreements legally binding?

The contracts are legally binding so that if you are a victim and you sign one, receiving a financial pay-out, you are prevented from talking to anyone about the allegations.

Can a Non-Disclosure Agreement be broken?

If you breach a valid, legally compliant NDA, then it is classed as breaching a contract, leaving you liable to legal action.

If a company thinks it is likely the NDA is going to be breached, then they can apply for an injunction. If you then breach an injunction, this is a criminal offence, and can lead to a fine or jail for those found guilty.

What if an employer wants to settle a discrimination case?

It is common to settle disputes, including for discrimination by settlement agreements. These can include confidentiality provisions but must not prevent whistleblowing or reports on criminal offences.

Do whistleblowers have legal protection?

NDAs cannot be used to prevent workers from whistleblowing. Any clause aiming to prevent you from making a valid public interest disclosure will be void.

References

These can be included in the settlement agreement and will not be contrary to an NDA or confidentiality terms.

Enforceability

Confidentiality and non-derogatory comments provisions can form valid, important parts of the deal for all parties in a transaction or settlement but must be drafted with care and in measured terms that are legally enforceable and compliant. We can assist you in advising and drafting on these.

At Tees we have a team of employment law specialists who can help you with any of the issues discussed here and provide support whether you choose to sign an NDA or contest it.

With numerous changes to employment law coming into effect from 6 April 2024, employees and employers should remain current and prepared for the latest legal developments.

Our summary below highlights key changes that will be made to the following:

• National minimum wage
• Flexible working
• Carer’s leave
• Paternity leave
• Calculating holiday pay for irregular hours and part year workers
• Redundancy protection
• Changes to tribunal compensation limits and statutory amounts for a weeks’ Pay

National minimum wage and national living wage

From 1 April 2024, the National Living Wage will increase to £11.44 an hour (from £10.42), and this will be adjusted to include those aged 21 and over.

The National Minimum Wage from 1 April will increase to:

• £8.60 an hour (from £7.49) for workers aged 18-20;
• £6.40 an hour (from £5.28) for workers under the age of 18; and
• £6.40 an hour (from £5.28) for apprentices.

Employers should ensure they meet the new rates applicable. Where necessary, employers should increase employee remuneration for the first pay period after 6 April. Failure to meet the requirements may lead to staff raising grievances and/or bringing claims and/or HMRC taking enforcement action. For more complex arrangements, such as where accommodation is provided, we recommend employers take advice to ensure that they are meeting the requirements.

Flexible working

From 6 April, the right to make a flexible working application will become a day-one right for all employees. The Flexible Working (Amendment) Regulations 2023 will remove the current requirement for an employee to be continuously employed for at least 26 weeks to make an application.

Under the new legislation, employees can make two applications per year and will not have to explain the effect this change in work might have on their employer. Employers will have two months (previously three) to consult and respond to the flexible working requests.

Employers should observe the guidance on handling flexible working requests (in conjunction with the new regulations) which has been published by ACAS in their new Code of Practice which can be found at: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html

Carer’s leave

The Carer’s Leave Act 2023 will come into force on 6 April. This gives employees the right to take one week of unpaid leave per year to provide or arrange care for a ‘dependant’ who has:

• –      a physical or mental illness that means they’re expected to need care for more than  three months;
• –     a disability as defined by the Equality Act 2010; or
• –      requires care because of their old age.

The dependant does not have to be a family member, it can be anyone who relies on the employee for care. This is another day-one right. Employees will be able to take this leave flexibly, but they can only take one week of leave every year.

Employers should ensure that managers and senior leadership understand this new entitlement and communicate the changes to employees. Employers will need to consider how this will affect any contractual and/or carer policies they might have in place, and if necessary, update their policies to cover the new right. We recommend seeking advice as appropriate to ensure that policies and procedures are compliant.

Paternity leave

Changes to The Paternity Leave Amendment Regulations 2024 will come into force on 6 April.

The Regulations (which will apply in cases where the expected week of childbirth falls on or after 6 April), will allow fathers and partners to take their paternity leave in two non-consecutive blocks of one week within the first year after the birth or adoption of their child. This change offers fathers and partners more flexibility to take leave at times which work for their family. Employers should be mindful that this new measure will only require an employee to provide four weeks’ notice prior to each period of leave.

Again, it is important that employers review their policies and processes in line with the new Regulations and update any policies and procedures as appropriate and seek advice as appropriate.

Calculating holiday pay and leave for irregular hours and part year workers

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulation 2023 contains important changes to how holidays should be calculated and paid for ‘irregular-hours’ and ‘part-year’ workers (both of which have been defined in the Regulation).

From 1 April 2024, employers must adopt the accrual system for calculating leave entitlement when dealing with irregular hours or part year workers. This change means that rather than using the leave year system (i.e. 5.6 weeks leave in a given leave year comprised of 4 weeks’ annual leave and 1.6 weeks’ additional leave), they will instead  get one-twelfth of their leave in each month (i.e. if a worker works for 5 days week, and is entitled to 28 days annual leave a year, after their third month of working, they would be entitled to 7 days’ leave).

Separately, for leave years starting on or after 1 April 2024, employers will also have the option to pay their irregular hours and part-year workers rolled-up holiday pay. This involves spreading a worker’s holiday pay entitlement over the year by adding an amount on top of their basic pay. Employers should notify their worker’s if they are planning to use rolled-up holiday pay, and introducing this change might involve updating contracts and any policies and procedures.

For employers, practical difficulties can arise when workers who have irregular hours do not receive the correct amount of holiday pay under the rolled-up holiday pay system. Workers may receive too much or too little depending on the number of hours worked, and the risk is that this could potentially result in claims being brought for unlawful deduction of wages. To mitigate this risk, employers need to ensure that payslips make clear what element of a worker’s pay is holiday pay and what is basic pay and ensure that they meet any requirements around clearly setting this out in the worker’s pay information.

Redundancy protection

For employees taking maternity, shared parental or adoption leave, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 from 6 April will bring into force The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulation 2024, which will extend the priority status for these individuals being offered suitable alternative roles by their employer (if available), where they have been selected or put at risk of redundancy. The act most importantly now extends to employees who are pregnant.

The protection will be extended for up to 18 months (after the expected week of childbirth, the child’s date of birth, or adoption), for those who have recently returned to work from maternity, adoption or shared parental leave (after six or more consecutive weeks) and for employees who are pregnant and have notified their employer of their pregnancy.

Employers will need to ensure that managers and senior leadership staff are aware of the changes being made to the priority status for redeployment opportunities in redundancy situations.

Tribunal Compensation Limits and a Week’s Pay

• The maximum compensatory award for unfair dismissal will increase from £105,707 to £115,115, or a year’s gross pay, whichever is lower;
• The limit on one week’s pay when calculating redundancy pay (and the basic award for unfair dismissal) will be raised from £643 to £700;
• The minimum basic award for some forms of unfair dismissal will rise from £7,836 to £8,533; and
• The cap on statutory redundancy pay will increase from £19,290 to £21,000.

The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.

Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.

Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.

Who can make a flexible working request?

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.

What are flexible working requests?

Flexible working requests should be made when an employee wishes to make a change to any of the following:

• the hours they work
• the times when they are required to work
• the place they work (i.e. working from home, or another of the employer’s sites). 

Some examples of how these changes could be implemented in practice include:

• reducing hours to work part-time
• changing start/ finish times
• compressing hours to work the same number of hours over fewer days
• job sharing. 

Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.

How an employee can make a flexible working request

To meet the statutory requirements of a formal flexible working request, applications should:

• be made in writing
• be dated
• state that it is an application made under the statutory procedure
• specify the change the employee is seeking
• specify when they wish the change to take effect
• state if and when the employee has previously made an application. 

An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.

How an employer should deal with a flexible working request

Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.

 Employers must deal with flexible working requests in a reasonable manner, and can only refuse requests for the following reasons (which remain unchanged under the new legislation):

• the burden of additional costs
• detrimental effect on the ability to meet customer demand
• inability to reorganise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• planned structural changes.

The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.  

If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).

If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.

Employers need to stay up to date

With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.

With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).

Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right. 

What could happen if I unreasonably refuse a flexible working request?

If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues  over flexible working could also lead to other claims (see below).

Sex discrimination claims and flexible working

A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.

The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.

However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.

If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.

Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.

Flexible working and constructive dismissal

In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.

To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.

Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.

With widely reported resignations resulting from allegations of bullying behaviours, both harassment and bullying is an increasingly common issue faced by employers.

This article sets out information for employers on the issues surrounding bullying and harassment in the workplace, what they should do and what potential liabilities they could be responsible for.

What is workplace harassment & bullying?

Harassment is when behaviour from a person or group of people is unwanted behaviour makes you feel uncomfortable, intimidated, degraded, humiliated or offended.

Bullying has no legal definition with ACAS characterising bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse if power through means that undermine, humiliate, denigrate or injure the recipient”.

These behaviours can have a negative effect on employees often resulting in increased absence from sickness, anxiety/depression, low motivation and reduced productivity in the workplace.

Social media harassment

Bullying and harassment is not just face to face, it can also happen by letter, email, phone or even via social media.

With the ever-increasing speed of technological changes, there are implications for what is classed as bullying and harassment. The Equality and Human Rights commission has issued new guidance on workplace harassment, warning that comments posted on social media could be classed as harassment. This adds a whole new dimension to the obligations that are faced by employers in this complex area of law.

Harassment guidelines could become law

There are plans for the guidelines to become statutory measures enforceable by law. Therefore it’s important for employers to be aware of what bullying and harassment is, their duties and responsibilities to their employees, as well as potential risks. What is the difference between bullying and harassment?

Bullying and harassment are similar in terms of the behaviours exhibited and how they make the victim feel.

To be protected under the Equality Act 2010 the conduct must be unwanted, have the purpose or effect of violating that individual’s dignity and be related to one of the protected characteristics, which are:

• age
• sex
• race
• sexual orientation
• religion or belief
• disability
• gender reassignment
• pregnancy and maternity.

Harassment where it is not related to a protected characteristic, could also be protected under the Protection from Harassment Act 1997 and civil claims can be brought by those affected.

Common types of bullying and harassment

Bullying and harassment behaviours in the workplace can include:

• unwanted physical contact
• workplace ‘banter’
• unwanted shouting
• unwanted remarks
• freezing employees out and ignoring their contribution
• denying someone training or promotion opportunities
• spreading rumours
• misuse of power or position
• overbearing supervision
• withholding information which can affect someone’s performance
• persistent criticism or undermining someone.

What can employers do to prevent bullying and harassment?

Employers should develop and circulate policies dealing with bullying and harassment, including what standards of behaviour are expected, what working relationships should look like and how to professionally manage these and deal with any conflicts.

Where employers can show that they took “all reasonable steps” to prevent employees behaving in such a manner, then they will not be liable for acts of discrimination.  However simply having a policy is unlikely to be sufficient.  Taking reasonable steps might mean having well-publicised policies but also undertaking effective and regular training of staff on the issue.

Staff should therefore be given training on how to act consistently and apply the bullying and harassment policy, to ensure they are familiar with the processes and how to follow them.  Employees should be encouraged to feel that they can talk to someone in authority, for example, their line manager or someone in HR, and they will be listened to and have their concerns taken seriously; also that they will not be censured for speaking out.

Training could also be given on the impact and damage that certain behaviours can have on those affected. Managers in particular must be trained about their responsibility to identify and prevent such behaviour.

How to spot bullying and harassment

Staff can suffer in silence – feeling too anxious to tell someone about it for fear of not being believed, not being taken seriously or it getting worse as a result of speaking out.  Good practice for employers includes being aware that it might be happening even if the person doesn’t report it.  Things to look out for include:

• increased absences from work
• people disappearing from their desks, to get away -for example, go to the bathroom for long periods
• declining standards of work, especially if that is not typical
• people asking to move their desk or other location in which they work
• unexpected outbursts indicating stress
• colleagues avoiding or ignoring each other

What should employers do when there is a report of bullying or harassment?

According to a report published by the Chartered Institute of Personnel and Development, a quarter of employees think their company turns a blind eye to workplace bullying and harassment; so it is vital that employers react promptly and appropriately to complaints raised.

Where there is a complaint made, ensure that there is an effective resolution procedure so that the organisation can act promptly and conduct a thorough investigation, acting in a fair, confidential and sensitive manner.  This will usually be set out in the anti-bullying and harassment policy or via a grievance process.

Where a complaint of bullying and harassment is well founded, employers will need to consider what steps to take against those who have carried out the conduct. These would usually be to consider appropriate disciplinary action under the employer’s disciplinary procedures, after an investigation has been carried out. Remember to always act with consistency.

What can employers do to support staff?

There are many ways in which employers can support affected staff, for example offer counselling to those who have made a complaint. Some employers may also offer the benefit of an external employee assistance scheme and employees should be made aware and directed to this.

If bullying and harassment leads to sickness, this will need to be managed appropriately, with support given in their return to work. It may be that the employer should consider, alongside a medical evidence or occupational health report, a phased return to work, adjustments to workload, or the possibility of a change of job or reporting lines.

Claims for workplace bullying and harassment

Bullying and harassment can lead to liability for employers as it is possible to pursue the employer for claims which relate to workplace bullying and harassment.  This is because employers are normally liable for acts of their staff, whether or not they have condoned or dealt with the behaviour.

Where the treatment is related to a protected characteristic (see above) employees can pursue claims based on discrimination under the Equality Act 2010, where compensation for acts of discrimination is uncapped.  If a complaint of discrimination is upheld then it is likely a Tribunal would make an award of ‘injury to feelings’ of the recipient as well as any other financial losses that follow from the acts of discrimination.

Employees may also seek to bring a claim of constructive unfair dismissal where they may attempt to show that the employer was in breach of their contract of employment and that they resigned in response to that breach. Commonly this is on the basis that a term implied into all employment contracts, dealing with mutual trust and confidence, has been irretrievably broken.  This claim is limited to employees who have been employed for two years or more. If successful, the recipient is likely to be awarded a basic award (taking account of their age, length of service and pay) and a compensatory award, which reflects the financial losses incurred (e.g. loss of earnings).

Civil claims are also possible where harassment is not related to a protected characteristic and can be brought under the Protection from Harassment Act 1997.