Insights Worked up, your monthly employment law lowdown – February 2021

After what feels like the longest January in history, we’re delighted to welcome you all to the February edition of Worked Up!

We hope you and your colleagues have all been keeping well and are managing (somehow) to avoid lockdown fever. If nothing else, you’ll hopefully have managed to cut down your streaming watchlists a little (ours are certainly in a much more manageable state after the last 12 months!).

In this month’s edition, we cover case updates on the availability of the “reasonable steps” defence in harassment and discrimination claims and the potential need to make enquiries on the source of confidential information. We also highlight recent commentary on the statutory flexible working procedure which is no doubt going to be a hot topic this year for many businesses as staff look to try and replicate recent remote working practices post-Covid (assuming post-Covid ever becomes a thing).

If you would like to discuss any of the below updates, please do get in touch.

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This month's headlines

2020 was definitely the year of “furlough”, but unless there is a drastic change in policy from Rishi Sunak, the furlough scheme will soon be behind us and this year’s “f” word looks set to be “flexibility”.

One of the positives to come out of the pandemic has been the widespread shift to remote working and the realisation that it actually can work.  Reports consistently suggest that many employees and managers are keen to continue with more flexible working arrangements given their experiences during the pandemic.

Flexible working will therefore be a hot topic in 2021 and the CIPD has launched a campaign calling for the right to request flexible working to be a day-one right for all employees. This echoes calls previously made by the Equality and Human Rights Commission and the TUC.  In reality, this wouldn’t represent a seismic change so watch this space!

At present, an employee can only make a request for flexible working under the statutory procedure if they have at least 26 weeks’ continuous service, but employees with less service can of course still request changes to their working arrangements. We expect many employees will be seeking to formalise their homeworking arrangements over the coming months so now would be a good time to revisit your flexible working policy and to remind managers on the steps to take when they receive a request.

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Allay (UK) Ltd v Gehlen [2021] UKEAT 0031/20/0402

In this case, the Employment Appeal Tribunal (EAT) upheld a decision to reject an employer’s attempt to rely on the “reasonable steps” defence in a complaint of harassment related to race.

As many of you will know, employers are able to defend claims of harassment and discrimination based on the actions of their employees if they can show that they took “all reasonable steps” to prevent their employees from carrying out such actions.  This often involves evidence of clear policies and training aimed at preventing such acts from occurring.

In this case, an ex-employee was found to have regularly been the victim of racist comments throughout his employment. Managers had been aware of the comments but had failed to take appropriate action. The employer in question said they had taken ‘all reasonable steps’ as they had an equal opportunities policy and an anti-bullying and harassment procedure and the managers had undergone bullying and harassment and equality and diversity training in the year before the Claimant’s employment (and the racist comments) started.  Unfortunately for the employer, this wasn’t good enough.

While the Tribunal did not make any detailed findings about the policies or the content or effectiveness of the training, the EAT held that the employer had not taken all reasonable steps as the relevant training was obviously “stale” and a reasonable step would have been to refresh that training.   Most notably, the EAT stressed that there is “clearly … a high threshold” to rely on such a defence.

This case highlights the importance not only of revisiting your equal opportunities and anti-harassment policies and training, but also of making sure that managers are adequately trained and know how to respond to allegations of harassment or discrimination.  That training, it would seem, should also be delivered on a regular basis.

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Travel Counsellors Ltd v Trailfinders Ltd [2021] EWCA Civ 38 

This was a Court of Appeal case which considered the circumstances in which a recipient of confidential information will be subject to an equitable obligation of confidence (i.e. not a contractual one). It was established that a recipient will be subject to such an equitable obligation of confidence if they knew, or had notice, that the information was communicated in breach of an obligation of confidence. Whether the person had such notice is an objective test to be assessed with reference to a reasonable person so if a reasonable person would have made enquiries about the information, but the recipient did not do so, an obligation of confidence will arise.

The background to this case was that ex-employees of Trailfinders had joined a franchise with Travel Counsellors Ltd (“TCL”) and had been encouraged to bring their own customer contact list with them. The Court found that a reasonable person in TCL’s position would have been aware that some of the information was likely to be confidential and would therefore have made enquiries, which TCL did not do. TCL was therefore found to be subject to an equitable obligation of confidence in respect of the confidential information it received from Trailfinders’ ex-employees.

What this case shows is that in certain circumstances there will be a positive obligation on employers to make reasonable enquiries about the source of any information which comes into their possession which appears to be confidential. This will potentially make it easier for ex-employers to take action against new employers if an employee is believed to have misused confidential information as it won’t be a defence for an employer to have simply turned a blind eye to the source of any such information.

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