There’s Been a Whole Lotta Shakin’ Goin’ On – Uh Huh.

We may have just had the half term break, Brexit has been postponed and Parliament has now been dissolved, but there’s been a whole lot of shaking going on in the world of employment law and practice over the last few weeks.  Here are a few snippets.

Firstly, yesterday was Stress Awareness Day and recent research supported by the CIPD found that that a ban on checking emails out-of-hours may actually increase stress for those with “high levels of anxiety”.  There is clearly no one size fits all when it comes to taking the appropriate steps to reduce staff stress and anxiety.  As with all health issues, never make generalised assumptions about what is best for any particular member of staff.

In the case of Curless v Shell International Ltd, the Court of Appeal overturned the judgment of the EAT and decided that the Claimant could not rely on the content of a leaked email from a lawyer to the employer.  The court held that the advice was protected by legal advice privilege as it set out advice relating to the risk of dismissing Mr Curless notwithstanding that he had previously alleged disability discrimination.  The court stated that employment lawyers gave this kind of advice “day in, day out” and did not fall foul of the iniquity principle.  This judgment is good news for both employers and employment lawyers.

In the case of López Ribalda and others v Spain, the Grand Chamber of the European Court of Human Rights reversed the Court’s earlier decision that covert workplace surveillance violated the privacy rights of the monitored staff where the employer had a general and well-founded suspicion that a number of supermarket cashiers were committing workplace theft.  The employer had a legitimate interest (the identification and punishment of any offenders), the surveillance was in a public area (where staff would have a lesser expectation of privacy), the footage was only viewed by those who needed to be involved in the conduct of the disciplinary proceedings and was used for no other purpose.  As notifying the staff of the surveillance would have defeated its purpose, the court considered its use necessary.  The ICO’s guidance already advises that this balancing exercise should always be carried out before an employer resorts to covert surveillance of its staff (see our bulletin on the previous judgment in this case).

Finally, the Government has just announced its response to the Women and Equalities Committee report in June 2019 on the use of confidentiality provisions in cases of discrimination.  In the last few months, the Government had published its response to its own consultation and the Equality and Human Rights Commission published its own guidance on this issue.  Amongst other things and subject to the result of the imminent general election, legislation is proposed that will impose legal limitations on the scope of non-disclosure clauses and a requirement for independent legal advice on those clauses.  These are likely to be equivalent to existing professional obligations on solicitors when advising on the terms of settlement agreements.  A failure to comply with the new law will cause the relevant confidentiality clause to be void.  This accords with the Government’s previous pronouncements.  Employees generally may also have the right not to be denied an employment reference.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP


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