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Employment

This week, the Migration Advisory Committee (MAC) released their final report on EEA migration in the UK. The report was commissioned by the Home Secretary in 2017, and its purposes were 1) to look at the impact of EEA migration on the economy and society of the UK and 2) to gather evidence to assist in the development of a new immigration system for the UK post-Brexit.

As has been widely reported in the press this week, the Young Women’s Trust has released the results of their annual survey, which noted that, 100 years on from when the first women got the vote in the UK, there is still widespread inequality for young women. The survey, which questioned a representative sample of 18 – 30 year olds in England and Wales, found in particular:

This month, the Advisory, Conciliation and Arbitration Service (ACAS) launched new guidance on employee references, an area which employers are often apprehensive about. In a previous Insight post, we discussed the potential GDPR (i.e. data protection) issues which can arise in relation to references.  The ACAS guidance is a useful summary for employers regarding some of their other obligations in relation to the provision of references and the potential risks arising in preparing and providing these.

The plight of the over-burdened “always on” British worker feverishly checking emails on their long commute home and struggling with incipient mental illness has recently been highlighted by certain international comparisons. These demonstrate a marked contrast in the legal regimes applicable to workers in other countries in relation to the regulation of working hours and the positive duty on employers to ensure that their employees do not work excessive hours.

Insurance firm Aviva produced a report this week finding that in the UK, 6.4 million over-50s workers were planning to retire later than they expected compared to 10 years ago. The report found that this was due to the rising cost of living and insufficient pension savings. Government research predicts that by the mid-2030s half of all adults in the UK will be over 50 years of age. By 2025 there will be 300,000 fewer UK-born under 30s. This development combined with the UK’s proposed departure from the EU resulting in fewer EU workers arriving means that there is likely to be a huge increase in necessary reliance on older workers within the UK economy. Aviva are accordingly urging businesses to “increase their commitment to older employees and help them adapt to a longer working life.”

The Equality Act 2010 prohibits discrimination and harassment on the grounds of nine “protected characteristics”, one of which is religion or belief. While it is relatively straightforward to identify religions and religious beliefs that are granted protection under the act, courts have grappled in recent years with what types of philosophical beliefs should be protected.

Employers have for many years used confidentiality clauses or non-disclosure agreements, commonly known as “NDAs”, in employment contracts and settlement agreements. The recent high-profile scandals of the President’s Club dinner, where female workers were presented with confidentiality agreements that they had to sign before they could start work, and the Harvey Weinstein affair has led to the exposure of the use (and abuse) of such arrangements and debate as to whether they involve the improper “gagging” of individuals and allow employers and perpetrators of sexual harassment to avoid scrutiny and indeed the proper consequence of their actions. This week the House of Commons Women and Equalities Commission published a report on Sexual Harassment in the Workplace, which included a section on the “advantages and disadvantages of using non-disclosure agreements in sexual harassment cases, including how inappropriate use of such agreements might be tackled”.

In the case of DL Insurance Ltd v Mrs O’Connor, the Employment Appeal Tribunal (EAT) concluded that a disabled employee who was disciplined for over 60 days’ absence over a 12-month period had been subject to discrimination. The outcome has potentially major implications for employers and their ability to apply absence management procedures to disabled employees.

Chambers UK 2018

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