Employment Bulletin – December 2019

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Equality watchdog ‘calls time on cover-up confidentiality agreements’

The Equality and Human Rights Commission says it’s calling time on the practice of using confidentiality agreements to cover up company wrongdoing in discrimination cases.

The commission has published new guidance offering both employers and employees clarity on the law governing the agreements, often referred to as Non-Disclosure Agreements (NDAs), including when and how they can be used.

It also sets out good practice on the use of NDAs in order to encourage greater transparency and improved understanding of different types of discrimination at work, so that systemic problems can be identified and tackled by employers and employees alike.

Rebecca Hilsenrath, Commission Chief Executive, said: “We’re calling time on NDAs, which have been used to cover up discrimination, harassment or victimisation.

“There are no more excuses. Everyone should have the power to speak out about harassment and victimisation. Nobody should be silenced.

“We all have the right to work in a safe environment and a healthy workplace needs employers to step up and make sure those who work for them have a voice. Our guidance will help make that happen.”

The guidance follows the commission’s 2018 report Turning the tables: ending sexual harassment at work, which explained that, while some confidentiality agreements do have legitimate uses, they are routinely and inappropriately used to cover up, and stop workers from speaking up about, harassment. This can then prevent discussion of discrimination on a wider scale.

It offers some key bullet point advice:

  • don’t ever ask a worker to sign a confidentiality agreement as part of their employment contract which would prevent them from making discrimination claim against you in the future
  • don’t use a confidentiality agreement to prevent a worker from discussing a discriminatory incident that took place in their workplace unless, for example, the victim has requested confidentiality around their discriminatory experience
  • don’t ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law
  • do always give your worker time to read and fully understand the terms of a confidentiality agreement
  • do always give your worker a copy of the confidentiality agreement
  • do make sure the confidentiality agreement spells out the details of exactly what information is confidential
  • do monitor the use of confidentiality agreements in your workplace.

The commission says its new guidance also serves as a timely reminder for employers to update any out-of-date policies, such as those on bullying and harassment.

 

Manager unfairly dismissed despite giving herself unauthorised pay rise

A manager at a GP practice was unfairly dismissed, even though she gave herself a pay rise to double the market rate for her role.

That was the decision of the Employment Tribunal in a case involving Sareet Sidhu, who began working for Northolt Family Practice in February 2013. Her mother was the practice manager at the time.

The following year, Dr Sangeeta Rathor took over the practice and merged it with her own. The three women worked well together for several years before there was a “significant falling out” between June and October 2017. By that time, Sidhu was the practice manager and her mother was the business manager.

The court heard that Dr Rathor became “increasingly aware of the high levels of renumeration being paid”.

Sidhu had increased her hourly rate, paying herself an extra £2,000 per month without any authorisation or justification. Her mother had also withdrawn large amounts of cash on a monthly basis.

Rathor challenged Sidhu and her mother about the money during a meeting in October 2017. In the following days she suspended Sidhu pending an investigation.

Sidhu was invited to a meeting in the following days but did not attend.

The accountants then found that the practice had suffered a financial loss of £138,460 as a result of unauthorised transactions by Sidhu and her mother.

Sidhu was dismissed from her role and her appeal was rejected.

She took legal action and the Employment Tribunal found in her favour. It acknowledged that the financial controls within the practice were “lax in the extreme” and that Sidhu and her mother had in all likelihood taken advantage of the fact that Rathor was “extremely busy” with the clinical side of the practice.

However, the fact that the disciplinary procedure had not informed her of the charges which she faced and didn’t give her an opportunity to respond made it unlawful.

The tribunal awarded Sidhu £2,668 in unpaid wages.

In its summary, the tribunal added that had a fair disciplinary procedure been adopted, it would have been “inevitable that Sidhu would have been dismissed” for the unauthorised pay rises.

Sidhu’s mother’s claims are being heard separately.

 

Employers wrong to dismiss worker who could not take on a full-time role

The Employment Tribunal has ruled that an employee was unfairly dismissed after her company diluted her job share arrangement and created new roles that were only available to full time workers.

The case involved an employee of Capita Customer Management Limited named Mrs J McBride. She worked as head of quality and compliance before taking maternity leave in April 2015.

She returned to work two years later and resumed her duties, but soon needed a flexible working arrangement, as her son’s health was not good.

Her line manager proposed that a job share with another colleague could be the best solution, and McBride agreed to try it.

However, the job share quickly became diluted with McBride and her colleague being responsible for separate projects.

The company was in the middle of a turbulent time and her manager felt all roles needed to be held by full-time workers.

McBride claimed the job share had not been adequately tested. She was offered various roles with the company but turned them down on the basis that they were all on a full-time contract. Eventually she was made redundant.

She brought claims of unfair dismissal and indirect sex discrimination.

The Employment Tribunal ruled in her favour. It said that Capita had not given the job share set-up an adequate chance to work and had provided no evidence that the full-time system would be more productive.

In summary, Judge Little said: “A reasonable employer would not have reached the conclusion that the role worked most effectively ‘with full-time coverage’ unless it was in possession of evidence which supported that observation or conclusion.”