UK: Government consults on mandatory ethnicity pay gap reporting

The Government has published a consultation on ethnicity pay reporting, making clear its position that this should become mandatory (possibly subject to a trial or phased approach with ‘early adopters’). The consultation is open until 11 January 2019.

The consultation is a response to a one-year-on review of progress made following the 2017 McGregor-Smith independent review. The 2017 report recommended introducing a mandatory reporting duty, but the Government’s preferred response at that time was to encourage voluntary reporting and monitor progress. Since then, both the Equality and Human Rights Commission and the House of Commons’ Business, Energy and Industrial Strategy Committee recommended consultation on a mandatory duty to report ethnicity pay gap data. Given the limited voluntary progress made in the last 12 months, the government has now agreed that a mandatory duty is required. (The review found that only 11% of employees had their ethnicity pay data collected; EHRC research published in August 2018 found that only 36% of employers collect and analyse data to identify any differences in pay and progression between different ethnic groups, and very few publish that pay gap data.) Continue reading

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Filed under Jurisdiction: UK, Remuneration (including bonus and incentive plans), Workplace culture, diversity and discrimination (including bullying and harassment)

Australia: Overview of Labour Hire Licensing in Australia

There have been a number of recent developments to licensing schemes in Queensland, South Australia and Victoria. Most notably, the South Australian government has recently announced it intends to repeal the Labour Hire Licensing Act 2017 (SA) and is no longer accepting licence applications.

Please click the map below for a summary noting the current status of licensing schemes around Australia at a State and Federal level.

Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: Australia

France: changes to French Works Councils requirements

As a reminder, following the Macron Reforms of 22 September 2017, all companies with 11 or more employees must put in place a Social and Economic Committee (a “CSE”) by 31 December 2019.

This means that:

  • companies with between 11-49 employees who did not previously have an obligation to have a Works Council must now organise elections; and
  • companies with an existing Works Council must organise elections for a CSE

before 31 December 2019. Continue reading

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Filed under Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: France

Trade Secrets – short video on the impact of the new UK Regulations in IP and employment contexts

Here’s a short video made for Practical Law, in which Herbert Smith Freehills IP and Employment Professional Support Consultants, Rachel Montagnon and Anna Henderson, discuss the impact of the UK’s recent Trade Secrets (Enforcement etc) Regulations 2018 and practical approaches to protecting confidential information and trade secrets.

Key issues discussed are:

  • The new, common definition of a trade secret
  • What constitutes lawful and unlawful acquisition, use and disclosure of a trade secret
  • Practical steps businesses can take to protect confidential information
  • Considerations in relation to whistleblowing
  • Guidance around reverse engineering
  • Bringing a claim under the regulations
  • Remedies and provision for damages.

These new UK trade secrets regulations have implemented the Trade Secrets Directive ((EU) 2016/943) and came into force on 9 June 2018.  Also on our IP Notes blog, see our Milan office’s post on the Italian implementation of this Directive and our previous posting on implementation of the Directive in the UK.

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Filed under Jurisdiction: UK, Protection of business interests (including restrictive covenants and confidential information)

UK: Court of Appeal ruling on scope of protection for internal investigations

The Court of Appeal has handed down its eagerly awaited decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd. The High Court had found that notes of interviews with employees were not protected by litigation privilege, given that the employer’s purpose was to investigate allegations made by a whistleblower and, in its view, this failed the dominant purpose test. Employers will welcome the Court of Appeal ruling that the purpose of investigating allegations made by a whistleblower was part and parcel of preventing or defending litigation and therefore sufficient to meet the dominant purpose test. It also considered that documents prepared in order to avoid or settle contemplated litigation were covered by litigation privilege.

In relation to legal advice privilege, the Court of Appeal considered itself bound by Three Rivers No 5 to find that the privilege is limited to communications between a lawyer and those tasked with seeking and receiving advice on behalf of the client company. However, the court said that, if it had been open to it to depart from Three Rivers No 5, it would have been in favour of doing so – but this is a matter for the Supreme Court.

The decision is considered further in our litigation blog post.  The SFO has since decided not to appeal the case further.

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Filed under Employment-related claims- procedure and form, Jurisdiction: UK

UK: No privilege for advice on how to “cloak” dismissal on basis of discrimination as dismissal for redundancy

The Employment Appeal Tribunal in X v Y Ltd has ruled that an email containing advice from an in-house lawyer was not protected by privilege due to the “iniquity principle”, as there was a strong prima facie case that it advised on how to “cloak” as dismissal for redundancy the claimant’s dismissal resulting from allegations of disability discrimination and victimisation.  Relevant passages in the claimant’s claim should therefore not have been struck out.

It is well established that the iniquity principle prevents the application of legal professional privilege where advice is given for the purpose of facilitating crime or fraud. Fraud for these purposes has been interpreted to include “sharp practice”, or conduct which commercial people would say was a fraud, or which the law treats as entirely contrary to public policy. It would not normally include conduct which merely amounts to a civil wrong, ie a tort, nor does it cover conduct which amounts to a breach of fundamental human rights.

In the present case, an employee who had raised allegations of disability discrimination was made redundant as part of a wider redundancy exercise amongst the legal department.  The EAT found on the facts that the advice in question went beyond pointing out the risk of claims if the claimant were selected for redundancy, and (on a strong prima facie case) was to be interpreted as advising that the genuine redundancy exercise could be used as a cloak to dismiss the claimant to avoid his continuing complaints and difficulties with his employment which he alleged were related to his disability.  As such, the advice was an attempt to deceive both the claimant and, ultimately, an employment tribunal. Continue reading

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Filed under Employment-related claims- procedure and form, Jurisdiction: UK, Redundancy, Workplace culture, diversity and discrimination (including bullying and harassment)

Recruitment and protection of talent: a boardroom issue for pharma

Our article Recruitment and protection of talent: a boardroom issue for pharma is available on our pharma hub here. Technological advancement is key amongst the forces driving change in the pharmaceutical healthcare sectors, with businesses increasingly partnering with non-traditional players such as tech giants, agile biotech start-ups and insurers. In this article we explore how the industry’s increasing focus on tech, including AI, will give rise to a corresponding need to find innovative solutions to attract, retain and incentivise talent experienced in those areas, given the relatively small and highly mobile pool of potential recruits. We also consider the scope for businesses to protect their valuable knowhow and intellectual property from potential threats from ex-employees. Given the critical importance of talent to the pharma industry, we highlight issues that should be factored into strategic decision-making by the board, influencing choices on collaboration, acquisition and business location.

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Filed under International mobility (including secondments, migrant workers, territorial jurisdiction), Jurisdiction: Asia, Jurisdiction: Australia, Jurisdiction: Cross-border, Jurisdiction: France, Jurisdiction: Germany, Jurisdiction: Spain, Jurisdiction: UK, Protection of business interests (including restrictive covenants and confidential information), Remuneration (including bonus and incentive plans)

UK: Government’s white paper on future relationship and technical notes in the event of a Brexit no-deal

Over the summer the Government published its white paper on the future UK-EU relationship post transitional period, covering a wide range of issues including immigration and employment. On immigration, the Government stated that it recognises the importance of moving and attracting talent across Europe to support the global operations of UK firms and global investors. It suggested that business visits would continue to be permitted to and from the EU under new arrangements but for paid work in only a limited number of circumstances (perhaps in line with the current business visitor rules for non-EEA nationals). The paper also suggested permitting intra-corporate transfers across Europe, based on existing arrangements with other non-EU countries. Finally, the Government made clear that it intends to seek the secure onward movement opportunities for UK nationals in the EU who are covered by the citizens’ rights part of the withdrawal agreement, should they wish to change their member state of residence in the future.  There is little further detail on how migration arrangements could work after Brexit but a further white paper on immigration has been promised this autumn. Continue reading

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Filed under Data protection and privacy, International mobility (including secondments, migrant workers, territorial jurisdiction), Jurisdiction: UK

UK: HMRC update on national minimum wage liabilities following a TUPE transfer

HMRC has issued an update confirming that, with effect from 2 July 2018, where there has been a TUPE transfer of employees, all national minimum wage  liabilities, including the full penalty amount, will now be enforced against the transferee employer, including penalties triggered by pre-transfer arrears. This highlights the importance of transferees obtaining an indemnity from the transferor to cover these liabilities where possible.

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Filed under Business sales/transfers, Jurisdiction: UK, Remuneration (including bonus and incentive plans)

UK: employees protected against victimisation, despite ulterior motive for alleging discrimination, if acted honestly

The EAT in Saad v Southampton University Hospitals NHS Trust has held that an employee was able to claim victimisation where subjected to detriment for alleging discrimination even though the allegation was made for an ulterior motive (to deflect criticism of his performance). The requirement for the allegation to be made “in good faith” simply means that the employee must have acted honestly, ie subjectively believed in what they said (even if the allegation is later found to be false).

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Filed under Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment)