What do we already know? In June 2019, the Women and Equalities Select Committee (WESC) published its report on the use of confidentiality clauses, which are also known as Non-Disclosure Agreements (NDAs), in discrimination and harassment cases. The WESC concluded that the imbalance of bargaining power between employers and employees is a key driver behind…
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Summary:  If an employer lies (albeit in good faith) about the reason for dismissal, is that enough to shift the burden of proof in a discrimination case? Yes, says the Court of Appeal in Base Childrenswear Ltd v Otshudi available here. Facts:  The employee, Ms Otshudi, worked at Base Childrenswear Ltd, the employer. The employee…
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What do we already know? Settlement agreements are often used to agree a settlement to a dispute with an employee, or bring an end to the employment relationship in an amicable way. An employee agrees to waive any claims against their employer in return for a compensation payment. In order for this waiver to be…
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Summary:  Did the dismissal of an employee for asserting her moral right to own the copyright to her own creative works amount to discrimination on the grounds of belief? No, held the Court of Appeal in Gray v Mulberry Company (Design) Limited, available here. Background:  The Equality Act 2010 provides protection against discrimination which relates…
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What do we already know? We updated you in our August 2019 Newsletter (Government reforms (3): Response to Consultation on Confidentiality Clauses) that the Government has said that it will legislate to ensure that limitations on non-disclosure agreements (NDAs) are set out clearly in written statements of employment particulars and in settlement agreements.  The Government…
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World Menopause Day took place on Friday 18 October 2019 and ACAS took the opportunity to publish new guidance (available here) to help support staff who are affected by menopause symptoms at work. As well as guidance for employers, there are also tips for workers on how to raise any concerns. Key points include: Create…
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Summary:  Is vegetarianism a protected belief under discrimination law? No, says the Tribunal in Conisbee v Crossley Farms Limited available  here. Background:  The Equality Act 2010 provides protection against discrimination which relates to certain listed “protected characteristics” which people may possess. Religion or belief is one of the protected characteristics and is defined as: any…
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Summary:  Is massaging a work colleague’s shoulders harassment? If so, is it sexual harassment? Yes, it’s harassment, but not sexual harassment, says the EAT in Raj v Capita Business Services Ltd and another (available here). Background:  The Equality Act 2010 provides that sexual harassment occurs where both: “A engages in unwanted conduct of a sexual…
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Summary:  Can an employer have constructive knowledge of disability if, although it did not make sufficient enquiries into the employee’s health, the employee would not have answered such enquiries (truthfully) anyway? No, says the EAT in A Limited -v- Z, available here. Facts:   Z, the employee, (anonymous because of the sensitive nature of her disability),…
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Summary:  At what point should an assessment be made of whether an employee’s disability is long-term? The EAT says at the time of the alleged discriminatory act.  The question is whether the impairment is ‘likely’ to last for twelve months (or ‘likely’ to recur). (Parnaby v Leicester City Council, available here). Background:  An employee will…
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