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Employment

The Equality Act provides protection against “harassment” which is defined as “unwanted conduct” which is either “related to a relevant protected characteristic” (such as gender) or which is  “of a sexual nature” and which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. 

I want to break free – good news for employers on enforceability of restrictive covenants

There is an inherent conflict between an employer’s desire to prevent key personnel from competing with them after their employment terminates, and an employee’s right to carry out their trade and earn a living once they have left a job. As early as the 1700s, courts were deciding to what extent clauses in contracts of employment could and should be permitted to restrict employees’ actions post termination of their employment.

In Okedina v Chikale, the Court of Appeal recently considered the question of whether a contract of employment could be said to be illegal due to the operation of immigration law. The decision is of particular significance where employers may seek to rely on the defence of illegality when facing claims by illegal migrant workers.

On 11 July the Government Equalities office issued a consultation document [https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace] setting out proposals and options for the reform of the law relating to sexual harassment in the workplace.  The background is, of course, wide spread concern and press interest in sexual harassment issues involving certain specific high profile cases and the wider #MeToo movement. It also follows a report by the Women and Equality Select Committee (WESC) which called on government and employers to assume a more active role in tackling the issue.

It is now common, in scenarios where employers and employees come into conflict about the impact of some incapacity which the employee may have, for the employee to claim that they suffer from a condition which qualifies as a disability under the Equality Act 2010 (the Act), and that their employer has taken or failed to take some action which results in disadvantage to them because of this disability. Employers may, however, counter with potential arguments about whether the individual was in fact disabled in law on the basis that unless the employee meets the legal definition of “disability” they can have no valid claim.

In Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall, the Court of Appeal considered whether it was unlawful discrimination to pay men on shared parental leave (SPL) less than mothers on paid maternity leave. Whilst the decision may be welcomed by employers who now have some clarity on the issue of SPL and pay, many may see the decision as reinforcing gender stereotypes which are not consistent with the modern world.

For employers, balancing the duty of care towards employees with the obligation not to discriminate against individuals on the grounds of disability can sometimes be a challenging task. Employers will want to make sure they are sufficiently safeguarding their employee’s wellbeing without making decisions which fall foul which of the Equality Act 2010.

There are few more vexed questions in employment law than the proper calculation of holiday pay under the Working Time Regulations. Unfortunately the answer is not getting much easier for employers. Regulation 16 provides that a workers is entitled to be paid as the rate of a “week’s pay” for each week of annual leave to which he or she is entitled under Regulation 13 (basic leave of 4 weeks) or Regulation 13A (additional leave of 1.6 weeks). For the definition of a “week’s pay” we are referred to the notoriously complex provisions of the Employment Rights Act (“ERA”) ss221-224. 

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