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TLT LLPTLT LLPTLT LLPTLT LLP
TLT LLPTLT LLP
TLT LLPTLT LLP
EMPLOYMENT LAW MASTERCLASSThursday 17 March 2016
Programme
9:00 – 9:30 – Registration
9:30 – 9:40 – Welcome and Introduction
9:40 – 10:40 – Ed Cotton, Employment Partner at TLT
Confidential information & enforcement of restrictive covenants
■ Protecting against departing employees taking confidential information
■ The value of having well drafted and tailored restrictive covenants
■ How to maximise enforceability of restrictive covenants in the Courts
■ Practical pointers on how to protect your confidential information
10:40 – 11:40 – Stuart McBride, Head of Employment at TLT
Mandatory Pay reporting and equal pay
■ Mandatory gender pay gap reporting requirements
■ Practical guidance on how to prepare for the new requirements
■ Rise in private sector equal pay claims
■ Protection against the risk of claims
11:40 – 12:00 – Break
12:00 – 13:00 - Stephen Wyeth, Barrister at 3PB
The Practicalities of going to Tribunal
■ Preparation for the hearing
■ How to be an impressive witness
■ Common pitfalls to avoid
13:00 – 14:00 – Lunch
14:00 – 15:00 – Peter Monaghan, Area Director at ACAS
National Living Wage and Productivity
■ Review of recent work on the workplace context with respect to "Building Productivity in the UK".
■ Implications of the upcoming introduction of the National Living Wage
15:00 – 16:00 – David Birchett, Employment Solicitor at TLT
What's happened and what's in store for employment law
■ Insight and guidance on key employment law changes
■ Recent developments in industrial action, recognition and redundancy
■ Atypical working and topical developments
EMPLOYMENT LAW MASTERCLASSThursday 17 March 2016
1
TLT LLPTLT LLP
Confidential Information &Enforcement of RestrictiveCovenants
Ed Cotton, Partner17 March 2016
Protecting Confidential Information
TLT LLP
Question 1: Protection
A. Trade secrets
B. Confidential information
C. Skill and knowledge
Trade se
crets
Confid
entia
l inform
ation
Skill an
d knowledge
22%
0%
78%What can an employer protect by way of animplied duty on the employee aftertermination of employment?
2
TLT LLP
Trade Secrets v Mere Confidential Information
• Only trade secrets can be protected by an implied duty ofconfidentiality – protection continues after termination ofemployment
• Trade secrets – high classification
Trade secret =
• Information that is used in trade or business
• Which if disclosed to a competitor would likely cause real orsignificant damage to the owner; and
• Whose dissemination must have been limited by the owner or, atleast, whose dissemination must not have been encouraged orpermitted on a widespread basis
TLT LLP
Trade Secrets v Mere Confidential Information
• Mere confidential information = confidential information which doesnot fall within the definition of trade secrets
• Employees must treat this information as confidential during theiremployment (implied duty)
• Employees may only use this type of information in the bestinterests of their employer (for so long as their employmentcontinues)
• There is no implied duty to prevent an employee disclosing or usingmere confidential information on termination of their employment
TLT LLP
Question 2: spot the trade secret
A. All of the above
B. None of the above
C. 1 and 2
D. 1 and 3
E. 2 and 3All o
f the ab
ove
None of the above
1 and 2
1 and 3
2 and 3
27%
8%2%
48%
15%
Which of the following are trade secrets?
1. Details of formulations for inks developed by acompany
2. Card index listing 325 trade contacts
3. Detailed information on costing, customeraccounts, profit margins, actual and hope forsales
3
TLT LLP
Confidentiality ClausesTo be effective a confidentiality agreement should contain the followingkey elements:
• A definition of the confidential information to be protected – bespecific, leave no room for doubt
• Specify the purpose and permitted use of the information
• Clearly specify the circumstances in which such information may bedisclosed
• Detail the return or destruction procedures of confidentialinformation
• Detail the duration of the agreement
• Compensation (not required in Scotland)
TLT LLP
Social MediaAudience size creates opportunities for
• Brand Awareness
• Reputation and public image
• Marketing - global
• Customer connection and feedback
Also potential risks to business
• Usage levels can be a distraction
• Disclosure of confidential information – social media magnifies therisk
• Risk to customer lists and contacts e.g. LinkedIn
TLT LLP
Social Media (cont'd)
• If a role allows for use of social media in the workplace emphasisethe risk of disclosing information to third parties over the internet
• Ensure that employees are aware of what constitutes confidentialinformation or that they request approval if unsure
• Former RBS employee dismissed Jan 2011 for breachingSecrecy Policy by updating her Facebook page about herimpending redundancy and missed out on £6,000 redundancypay as a result
4
TLT LLP
Social Media and Information Security Policies
• Set clear standards of conduct and performance
• Be clear as to what constitutes confidential information
• Give examples of appropriate/inappropriate use
• Detail potential consequences – information going viral, damage tobusiness, potential sanctions for employees
• Marry up with existing policies
• Keep it up to date
TLT LLP
Database Ownership
• Copyright and Rights in Database Regulations 1997
• where a database is made by an employee "in the course of hisemployment", his employer shall be regarded as the maker of thedatabase, subject to any agreement to the contrary."
TLT LLP
Database Ownership
• In Pennwell Publishing (UK) Ltd v Ornistien and others anemployee copied a contact database from his work outlook account.
• Employee had been permitted to use the database for his personalcontacts – factual dispute as to whether the employee had createdand maintained the database outside of work
• Held that employee could remove personal contacts but not entiredatabase.
5
TLT LLP
LinkedIn Contacts
Who do LinkedIn Contacts belong to?
• No definitive legal position
Hays Specialist Recruitment v Ions
• Contacts made during the course of employment will remain theproperty of the employer
TLT LLP
Control of LinkedIn (or similar platforms)
• Draft the contract of employment to provide that departing employeemust delete contacts created in course of work.
• May be difficult to enforce due to nature of social media. It would besimple for a former employee to re-establish link with contacts.
• May be issues of solicitation and impact of profile alterations to thesite. LinkedIn can be set up to update contacts as to change of roleor employer. Your customers may notice and follow.
• Post termination non-compete clauses may be only realistic methodof protecting customer information.
TLT LLP
Practical Tips – a brief summary• Minimise the number of employees who are circulated confidential
information
• Clearly mark sensitive information as 'confidential' – do not over-use
• Regularly monitor the use of email, photocopiers and other similardevices
• Operate password protection and security on databases or keephard copy documents under lock and key
• Put in place an effective confidentiality agreement
• Have clear policies in place – social media, mobile phone usage,information security
• Clock any unusual behaviour of your employees which may indicatemisuse of information
6
Restrictive Covenants: A practical guide
TLT LLP
Question 1: Restrictive covenants
A. void for being in restraint oftrade
B. enforceable if there is alegitimate proprietary interestto protect
C. both (a) and (b)
void
forbeing in
restra
...
enforceab
leif t
hereis
...
both(a)
and (b)
0%
36%
64%
How do Courts review restrictive covenants?
TLT LLP
Question 2: Contractual terms
A. Duty not to compete
B. Duty not to divert businessaway
C. Duty not to assist a competitor
D. Not to use confidentialinformation for own purposesor disclose to third party
E. Not to conceal ownwrongdoing
F. Not to seek work with acompetitor Duty
notto
compe
te
Dutynot
todiv
ertbus...
Dutynot
toas
sist a
...
Notto
use co
nfiden
tial...
Not toco
nceal o
wn w...
Notto
seek
workwith
..
9%11%
36%
24%
9%11%
Which of the following is NOT an implied contractual term
7
TLT LLP
Background
• Contractual clause
• Restricts the activities of a worker for a limited period afteremployment relationship ends
• Protection for businesses from confidential information andknowledge being used against them
• Start point = post-termination restrictive covenants are void onpublic policy grounds...
• Business interests vs. liberty of worker
TLT LLP
Drafting restrictive covenants• Proper drafting is essential!
• Rule of thumb: No wider than is reasonably to protect the businessinterest
• Factors to consider:
• Type of covenant
• Duration
• Geography
• Employee’s role
• Usual sector practice
TLT LLP
Non-compete• Limits the worker’s ability to earn a living so is difficult to enforce.
• Would non-solicitation suffice?
• When drafting, consider:
• the particular business activities which the employee carries thatcompete with your business
• an appropriate geographical area
• a reasonable period of time
• The legitimate interest is usually the protection of confidentialinformation
8
TLT LLP
Non-dealing
• Relates to clients or suppliers.
• Employee cannot deal with the relevant contact even if they areapproached by the contact concerned.
• When drafting, ensure:
• covers only contacts with whom employee had material dealings– applies more to senior employees
• covers only contacts dealt with during a reasonable period priorto termination
• lasts for a reasonable time post-termination
• you seek to limit the area of the business covered, if relevant
TLT LLP
Non-solicitation
• Relates to clients or suppliers
• More likely to be enforceable than non-compete or non-dealing butcan be hard to prove breach
• If a contact approaches the ex-employee voluntarily, the ex-employee is permitted to deal with them
• Same principles apply as when drafting non-dealing covenant
TLT LLP
Time & space
Duration:
• Why is the period of restraint necessary?
• How long would it take for the employer to re-establish relationshipsonce the employee has gone?
• Does the employee’s knowledge have a shelf-life?
Geography:
• What is the area of employer/employees activity?
• What damage would be done if employee continued to operate inthis area?
9
TLT LLP
Significance of employee's roleEmployee’s role
• Was the role at such a level that there was a ‘legitimate businessinterest’?
• More senior = restriction usually more justifiable
• What access did the employee have to clients or suppliers?
• Did the employee have access to confidential information such abusiness strategy?
• What relationships did the employee have in the business? Might anon-poaching covenant be appropriate?
TLT LLP
Question 3: Clauses
A. Yes
B. No
Yes No
96%
4%
You are employing a senior sales executivewho will have relationships with some keyclients. Is the following clause reasonable?
"You will not for a period of 24 monthsfollowing the termination of youremployment solicit or endeavour to enticeaway from the Company the business orcustom of any customer of the Companywith whom the Company dealt in the 24month period prior to the termination of youremployment"
TLT LLP
What is an Injunction?• An application to the Court for a restraining Order.
• An equitable remedy at the Court's discretion. Damages must notbe an adequate remedy.
• The parties seeking an injunction must come to Court with "cleanhands".
10
TLT LLP
Key considerations
• Do you have the will to fight?
• How much is at stake? Assess potential loss.
• Do you have the money to fight? Particularly in respect of therequirement to provide cross undertakings.
• What are the merits of the case?
• Is the employer/employee in breach of contract – in particular, hasthe employer paid everything that the employee is owed.
TLT LLP
The Contract
• Are there restrictive covenants and are these contained in a signedcontract?
• If there is no signed contract, why is this?
• Is there a credible explanation that the contract was signed butmislaid?
• If there are no restrictive covenants agreed, the client will be relianton implied restrictions.
TLT LLP
Obtaining the evidence
• Consider "Total shut out". Suspend the employee + confiscatemobile phone + blackberry.
• Other employees – Question other employees as to what wassaid/done by the ex-employee prior to departure and also as to anycontact post departure.
• Computer records/emails – scrutinise access made by theemployee to the company database and emails sent pre-departurefor any unusual activity
11
TLT LLP
Obtaining the evidence (cont'd)
• Company laptop and mobile phone – these should be recoveredand consideration given to having the computer examined by anappropriate expert if there is suspicion of the removal of valuabledata.
• Phone bills should be scrutinised for unusual activity.
• Security access logs – whether to the company database orpremises. These might reveal unusual activity pre-departure.
• Unusual work activities pre-departure – such as altered behaviourwith clients or increased work out of hours.
TLT LLP
Obtaining the evidence (cont'd)
• Clients/suppliers/external contracts – have there been notablechanges of activity? Have normal interactions, e.g sales calls,revealed any competitive activity? Are there clients etc. who mightbe able to assist with information regarding the ex-employee? Thiswill depend on the nature of the relationships with clients.
• Can information be obtained from any known new employer?
• In extreme circumstances, surveillance.
TLT LLP
Evidence of loss
• What evidence can be obtained to demonstrate actual or potentialloss?
• Sales figures for customer or areas of business with which the ex-employee was involved, and any changes to those figures.
• Any other evidence of the value of contracts/business with which theex-employee was involved.
12
TLT LLP
Risk analysis
Is it really worth it? Consider:
• true financial loss
• reputational damage/market position
• message for other employees
• risks and costs
TLT LLP
Letter before action to Defendant seeking undertakings
• This is required, unless in exceptional circumstances.
• Set out detailed allegations supported by evidence if possible (if not,you are in difficulties/bluff will be called).
• Seek urgent and comprehensive explanation to Defendant'sconduct.
• Set rigorous time-tables to respond.
• Negotiate undertakings in without prejudice correspondence
TLT LLP
What are the main remedies you are seeking?
• Delivery up of documents and property.
• An explanation of Defendant's conduct
• Infringement of Database Rights (CF Copyright and Rights inDatabase Regulations 1997)
• An injunction.
• A springboard injunction to restrain misuse of ConfidentialInformation.
13
TLT LLP
What are the main remedies you are seeking? (cont'd)
• To recover costs
• Damages
• An account of profits
• Enforcing IP rights
• Obligation to comply with restrictive covenants
TLT LLP
Consider writing a letter to new employer
• It is difficult to prove inducement of a breach of contract.
• Can you prove a "conspiracy"?
• Assess pros/cons about drawing new employer into the fray.
TLT LLP
Make an application to the High Court with notice
Unless the matter is hyper-urgent, you need to go with notice:
"except in cases where secrecy is essential the applicant should takesteps to notify the Respondent informally of the application 3 cleardays to grant an injunction without notice is to grant an exceptionalremedy".
This means sending all the papers to the other side to give them anopportunity to respond.
14
TLT LLP
Speed
• Speed is important in interim injunction applications.
• Delay makes it more difficult for the Claimant to succeed on"balance of convenience" test.
TLT LLP
Conclude disciplinary procedure if necessary
• Has the employee resigned or given you cause to treat his/herconduct as a resignation? Think carefully before you accept therepudiatory breach.
• Is it gross misconduct?
• Better still – is it dismissal with notice + garden leave? (even ifyou have grounds for gross misconduct)
• Garden leave is the better remedy, especially in long noticeperiods (in particular if this will put employee out of businessover the critical period of the year)
TLT LLP
Any questions?
1
TLT LLP
Equal Pay and Gender PayGap Reporting
Stuart McBride17 March 2016
TLT LLP
Overview
• Equal pay refresher
• Gender pay gap reporting
• The draft regulations
• How to prepare
TLT LLP
Brainteaser: Question 1
A. 3,000
B. 7,000
C. 9,000
3,000
7,000
9,000
30%33%
37%
How many Equal Pay claims werereceived by the EmploymentTribunal in 2015?
2
TLT LLP
Brainteaser: Question 2
A. 9 %
B. 19 %
C. 24 %
9 %19
%24 %
9%
35%
57%
What is the gender pay gap in the UK?
TLT LLP
Brainteaser: Question 3
A. Germany
B. Iceland
C. France
D. UK
E. Ireland
German
y
Icelan
d
France UK
Irelan
d
9%5%
27%
39%
20%
What of the following countrieshas the highest gender pay gap?
TLT LLP
Brainteaser: Question 4
A. Germany
B. Iceland
C. France
D. UK
E. Ireland
German
y
Icelan
d
France UK
Irelan
d
47%44%
6%
0%3%
What of the following countrieshas the lowest gender pay gap?
3
TLT LLP
Brainteaser: Question 5
A. Secretarial
B. Engineering
C. Architects
D. Child/nursery carers
Secre
tarial
Engineeri
ng
Archite
cts
Child/nurse
ryca
rers
25%
75%
0%0%
Which job has the highest number of female workers?
TLT LLP
Brainteaser: Question 6
A. Secretarial
B. Engineering
C. Architects
D. Child/nursery carers
Secre
tarial
Engineeri
ng
Archite
cts
Child/nurse
ryca
rers
0% 0%0%0%
Which job has the lowest number of female workers?
Equal Pay
4
TLT LLP
Equal pay claimsEqual pay for equal work
Operates where a man and a woman:• Perform like work
• Perform work of equal value
Must be an actual “comparator” employee
TLT LLP
Material factor defence
But- Defence if pay gap is not related to gender:
“The material factor defence”• Must be a genuine reason and cover the whole gap
• Fact dependant whether defence will succeed
Examples• Performance / seniority / experience / hours of work / mistake /
market forces
• Onus on employer
• Evidence?
Gender Pay Gap Reporting
5
TLT LLP
What is the Gender Pay Gap?
Difference in average earnings
Some statistics:• Overall gender pay gap: 19.1%
• Knock-on effect on pensions- women retiring in 2015 have apension worth on average 25% less than men
Possible causes:• Equal pay discrimination
• Life choices? Career breaks and part-time working
• Job segregation
• Under representation of females at senior levels
TLT LLP
Mandatory gender pay gap reporting
Commencement• 1 October 2016 looking likely
• 30 April 2017 reference date
• 30 April 2018 deadline for first publication
TLT LLP
Relevant employer
Who is a “relevant employer”?• Private or voluntary employer which has 250 or more relevant
employees on 30 April 2017 (and each anniversary of that date)
Group companies?• Currently no requirement to aggregate subsidiaries
• If any group company has fewer than 250 relevant employees, thencurrently they will be out of scope
6
TLT LLP
Relevant employee
Who is a “relevant employee”?• Ordinarily works in Great Britain; and
• Whose contract of employment is governed by UK legislation
But will include:• Any contract personally to do work
• LLP members and some self-employed contractors would bebrought in scope
TLT LLP
PayWhat counts as "pay"?• Includes basic pay, paid leave, maternity pay, sick pay, allowances,
shift premium, bonus pay
• Excludes overtime, expenses, salary sacrifice, benefits in kind,redundancy, arrears and tax credits
What counts as "bonus pay"?• Profit sharing, productivity, performance, piecework, commission,
long term incentives, shares
TLT LLP
Pay• Use gross hourly pay
• For the relevant pay period = a snapshot of data
• Prevents varying working patterns affecting figures
• Gross hourly pay = Weekly pay ÷ weekly basic paidhours
• Relevant pay period = the usual pay period for theemployee (e.g. monthly, weekly etc) within which 30April 2017 falls
7
TLT LLP
Gender pay gap dataWhat data has to be published?• Mean (average) gender pay gap
• Median gender pay gap
• Difference in mean (average) bonus payments paid to male andfemale employees
• Proportion of male and female employees that received a bonus
• Number of male and female employees in each quartile of theemployer's pay distribution
TLT LLP
Mean gender pay gap
Mean (average) gender pay gap formula:
• A = mean gross hourly rate of pay of all male relevant employeesemployed by the relevant employer on the relevant date
• B = mean gross hourly rate of pay of all female relevant employeesemployed by the relevant employer on the relevant date
(A - B) ÷ A x 100
TLT LLP
Mean gender pay gapMean gender pay gap example:• (A) Male mean = £19 per hour
• (B) Female mean = £16 per hour
(19 - 16) ÷ 19 x 100 = 15.8%
8
TLT LLP
Gender pay gap for bonusesFormula for gender pay gap for bonuses:• E = mean bonus pay paid to all male relevant employees employed
by the relevant employer during the 12 months preceding therelevant date
• F = mean bonus pay paid to all female relevant employeesemployed by the relevant employer during the 12 months precedingthe relevant date
(E - F) ÷ E x 100
TLT LLP
Gender pay gap for bonusesExample:• (E) Mean male bonus pay = £9,000
• (F) Mean female bonus pay = £6,000
(9,000 - 6,000) ÷ 9,000 x 100 = 33.3%
TLT LLP
Proportion receiving a bonus• Proportion of male and female relevant employees who
received bonus pay in the 12 months preceding therelevant date
• Has to be expressed as a percentage of the totalnumber of all male relevant employees and femalerelevant employees respectively
9
TLT LLP
Proportion receiving a bonusProportion of male and female relevant employees whoreceived bonus pay example
Proportion of males that received bonus:
150 ÷ 300 x 100 = 50%
Proportion of females that received bonus:
75 ÷ 200 x 100 = 37.5%
Male FemaleTotal employed 300 200Received bonus 150 75
TLT LLP
Salary quartiles (subject to clarification)
Salary quartiles• Assess your lowest and highest hourly rates
• Calculate four quartiles (A, B, C and D) based on the difference invalue between the lowest and highest hourly rates:
Pay band Pay quartiles
Pay band A The lowest quartile of hourly pay
Pay band B The second lowest quartile of hourly pay
Pay band C The second highest quartile of hourly pay
Pay band D The highest quartile of hourly pay
TLT LLP
Salary quartiles (subject to clarification)
ExampleUsing the hourly rates of your employees, assess the number of malesand female relevant employees in each quartile on the relevant date:
Pay band Pay quartiles Males Females
Pay band A £10 per hour to £35 per hour 70 95
Pay band B £36 per hour to £60 per hour 55 55
Pay band C £61 per hour to £85 per hour 30 20
Pay band D £86 per hour to £110 per hour 10 3
10
TLT LLP
Additional information?
• You could include other information-
• Other statistics eg part time / full time pay gap
• Statistics adjusted for maternity, salary sacrifice etc
• Progress made from previous years
• Steps being taken to reduce gender pay gap
TLT LLP
PublicationWhen to publish?• First publication = within 12 months of 30 April 2017
• Subsequent publication = annually (within 12 months of 30 Aprileach year)
Where to publish?• Employer website – retain online for 3 years
• Government sponsored website
• Written statement of accuracy
TLT LLP
ComplianceNo additional civil penalties, instead:• Periodic checks to assess non-compliance
• Produce sector tables of gender pay gaps
• Highlight employers providing full information
• Possibly name and shame non-complying employers
11
TLT LLP
Next stepsFinal regulations?
• Expected summer 2016
Further guidance?
• Expected 2016
• Voluntary narrative
Review?
• Within 5 years
TLT LLP
Potential Impact of GPG Reporting
• Reputation• Recruitment and retention• Employment relations/equal pay/discrimination claims• Tenders for public sector contracts
TLT LLP
What can employers do now?
Look at your systems- Can you generate the figuresrequired?
Review your data – reveal the issues now• Occupational segregation
• Pay grading
• Beware small data sets!
• Is full job evaluation process required / desirable?
Disclosure of investigations / legal privilege?
12
TLT LLP
Remedial action
Discrete awareness of / action on “issues”
Maternity pay / shared parental pay levels
Starting salaries/pay rises/appraisals• Objectivity and evidence
TLT LLP
Tackling hierarchical / occupational segregationGlass ceiling?• If so, can you identify why?
• Flexible working?
• Engaging the affected employees
• Positive action?
In the long term• Talent pipeline
• Government action
“Women's work” vs “Men's work”• Approach to recruiting – is there bias?
• Encouraging more diverse applicants
Questions?
21/03/2016
1
Preparing For a Hearingand Being an Impressive
Witnessby
Stephen Wyeth
Preparing for the Hearing
• Evidence gathering• Disclosure• Use of documents• Witness statements
1. Evidence:1.1 Advancing your own case1.2 Resisting your opponent’s case.
2. Duty to disclose.
Evidence Gathering
21/03/2016
2
Disclosure – Tribunal’s powers
Employment Tribunals (Constitution & Rules of Procedure) Regs 2013,
Schedule 1:
• General case management powers of ET – rule 29
• Can order any person (not just the parties) in Great Britain to
disclose documents or information to a party as might be ordered
by a County Court (r31)
• Can order any person in Great Britain to attend a hearing to give
evidence or produce documents or produce information (r32)
Disclosure – Tribunal’s powers (cont’d)• It is common for ETs to send out standard “directions” upon receipt
of a claim (if accepted) requiring the parties to take certain steps prior
to any hearing including standard disclosure.
• “Standard disclosure” (CPR 31):
The parties must make available to their opponent
1. Documents relied on;
2. Documents which adversely affect own case, and adversely affect or
support opponent’s case.
• Must make a reasonable search for documents.
• Disclosure limited to documents which are or have been within a
party’s “control”.
Duty of disclosure
• Must not hold back documents that would render other disclosed
documents or oral evidence misleading (could lead to an entire
rehearing and costs sanctions).
• The obligation is a continuing one.
• Documents should be disclosed where this is “necessary for disposing
fairly of the proceedings”. Not simply a test of relevance. Voluminous
documentation of only marginal relevance may not have to be
disclosed on grounds of proportionality.
• Confidentiality is not a reason for refusing or withholding disclosure.
• Emails, whether deleted or archived, must be retrieved and produced.
21/03/2016
3
Documents “privileged” from disclosure
Legal professional privilege - legal advice and documents prepared for
the purposes of litigation:
• Legal advice - applies only to communications with professional legal
advisers (ie not Human Resources consultants)
• Litigation privilege - covers communications with non lawyers but
only if the primary purpose is in relation to pursuing, defending or
avoiding actual or anticipated litigation.
Documents “privileged” – cont’d“Without Prejudice” communications - only disclosed if :
• parties agree;
• proves the content of an agreement;
• exceptionally, where non-disclosure would conceal “unambiguous
impropriety” on the part of the party seeking to avoid disclosure;
• conduct of a party waives the privilege.
N.B. Must be genuinely without prejudice (ie generated as or forming part
of an attempt to settle a contemplated dispute that, if not resolved, might
lead to litigation). May be “save as to costs” and thus disclosed in support
of a costs application.
Documents “privileged” – cont’d
Communications with ACAS – unless the party consents
Section 111A ERA communications - only applicable in ordinary unfair
dismissal cases and where there was no “improper behaviour”
Mediation documents – anything produced, said or done is confidential
Public Interest Immunity – specialist advice required.
21/03/2016
4
Documents• “Document” means anything in which information of any description
is recorded.
• Documents include photographs, computer hard and floppy disks, USB
sticks, audio and video tapes and disks, web pages and emails.
• Documents also include copies of originals where there have been
modifications obliterations or other markings.
Use of documents as evidence
• Golden rule - When writing/ creating anything (email, comment, notes
of interviews) remember that the document could end up being read by
a tribunal and the subject of the document (if a DPA subject access
request is made).
• Always maintain proper records:
Personnel records;
Minutes of meetings;
Notes of pertinent conversations (dates, times, with whom);
Use of documents as evidence - cont’dUse email to your advantage
• Evidence gather.
• Record key conversations in email correspondence (eg “I refer to the
conversation we had by the photocopier this morning during which
you asked me if you could work the alternate Sunday shift ...”).
• Store/save relevant emails in a separate file where potential problems
are envisaged.
• Remember – deleted emails are subject to disclosure
• Remind managers/colleagues that emails are often the only
incontrovertible and contemporaneous evidence available to tribunals.
21/03/2016
5
Use of documents as evidence - cont’d
• Have appropriate social media policies in existence.
• Remind colleagues that Facebook postings are documents for the
purposes of disclosure.
• Retain relevant Facebook postings (particularly applicable to issues
regarding remedy).
Use of documents as evidence – cont’d
Trial bundles:
• Only include material relevant to the issues.
• Timetabling of cases – allow for the fact the tribunal will be reading
documents within the scheduled time and not beforehand.
• Properly refer to relevant documents by cross referencing in your
witness statements to relevant pages in the bundle. If short, may
be appropriate to quote sections of the document in the statement.
• Have a separate remedy bundle if appropriate.
Tribunal “pleadings” and orders
• Claim form (“ET1”)
• Response form (“ET3”)
• Case management orders
• List of issues
21/03/2016
6
Tribunal “pleadings” and orders – cont’d
• Review ET1 and/or ET3
• Ensure legal adviser has sufficient knowledge of your case
• Provide witness availability dates
• Engage in the disclosure process
• Review opponent’s case and ensure your legal adviserunderstands the factual disputes between you (to enable alist of issues to be properly identified)
Witness statements• “Evidence-in-chief” - your only chance to volunteer
evidence;
• Should be in your own words, comprehensive andcomplete;
• Any material omissions will be the subject of cross-examination;
• Confront and contextualise weaknesses.
Being a witness
• Preparing to be a witness
• In the witness box
• Out of the witness box
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Preparing to give evidence
• Read over your statement, then again … and once more;• Read all other witness statements, then again….• Know your way around the evidence;• Remember – you cannot take notes to the stand or marked
copies of the bundle or witness statements;• Provide your legal representative with comments on your
opponent’s witness statements;
Preparing to give evidence – cont’d
• Ensure you are familiar with the bundle;• Discuss any weak points in your evidence with your
advocate before entering the witness box;• Visit your local tribunal if possible;• Sit in and watch other witnesses give their evidence.
In the witness box
• Nervousness in moderation is a good thing;• Be reasonable and rational – keep calm;• Need it be said, be honest;• Ensure you take the Tribunal to relevant documents you
are referring to;• Try to be helpful in your answers to the questions;• If an answer requires context then give it;
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In the witness box - cont’d
• Do not speak for the sake of it;• Do not spar with your opponent’s advocate or the tribunal
panel;• Ensure you finish your answer if you are interrupted;• Ask for compound questions to be broken down and seek
to answer them one by one.• Address the Judge and Tribunal members as Sir/Madam
Out of the witness box
• Be aware of your conduct and demeanour out of thewitness box;
• Act professionally at all times;• Do not scoff at your opponent’s witnesses;• Try to resist distracting your advocate whilst he or she is
cross-examining witnesses.
Questions and Answers
Stephen Wyeth
1
CIPD Employment Law Masterclass
The National Living Wage,Productivity and HR
Peter Monaghan
Acas Area Director, North West
17th March 2016
Agenda
• Outline what the National Living Wage legislation(NLW) looks like
• Outline some thoughts and challenges generated bythe NLW for HR in the NW
• Outline the connectivity between Productivity, theNLW and Labour Market pressures
• Introduce the 7 levers of Productivity with respectto People Management
• Introduce a self assessment tool
2
Productivity and the Workplace
• 20% lower productivity than the rest of the G7
(30% lower than France, Germany and the USA)
• France could clock off Thursday lunchtime incomparison!?
• Failure to recover post recession, more in work,static productivity.
• Strong employment growth, weak wage growth
External future pressures /developments?
• Age and demographics
• Immigration
• Flexibility
• Skills
• Recruitment / Retention / Talent
• Performance Management
• Health and Wellbeing partic Mental Health
• Engagement
• Northern Powerhouse??
What is the National Living Wage?
Announced by Chancellor George
Osborne in the Budget of July 2015.
The National Living will be introduced
from 1st April 2016.
Will ensure that employees aged 25
and over will receive a minimum of
£7.20 an hour.
Effectively replaces the National
Minimum Wage for those aged 25 and
above.
3
National Living Wage rates
From April 2016 the National Living Wage rate willbe £7.20 an hour for those aged 25 and over.
NLW rate is 50p an hour higher than the NMW rate.
The increase to £7.20 per hour equates to an annualrise of £910 for a full time employee.
The National Minimum Wage rates will still apply forthose employees under 25.
How will the National Living Wagerates be assessed in the future?
Low Pay Commission
Government has asked the Low Pay
Commission (LPC) to recommend the
level of the National Living Wage going
forward.
2020 Target
The target for National Living Wage
is to reach 60% of median earnings
by 2020. In excess of £9 an hour
Who is entitled to NLW?
EmployeesMost
workersAgencyworkers
Agriculturalworkers
Casuallabourers
Overseasworkers
4
Who is not entitled to NLW?
Selfemployed
VolunteersFamily
members
Workexperience
or placement
Companydirectors
Apprentices and the NationalLiving Wage
First year apprentices (including
those aged 25 or older) will
receive the apprentice rate –
currently £3.30 per hour.
In the second year of the
Apprenticeship, those aged 25 or
older will receive the National
Living Wage rate.
The NLW and the “North” – whogets a pay rise?
2016 2020
As a percentage of the labour market:-
Manchester 19% 24%
Liverpool 19% 25%
Preston 16% 24%
Lancaster 20% 27%
Sheffield 22% 28%
Leeds 20% 26%
Newcastle 19% 24%
London 11% 14%
Oxford 10% 13%
5
Short term impact of the NLW
• How can we afford it?
• How can we afford to pay anyone just above thatrate as well?
• The consumer or customer will just pay more tocompensate?
• We’ll take a hit on profit levels and exec pay?
• Is a tech solution cheaper and more productive?
• Job losses or at least static job growth
Medium term impact of the NLW
• Get me some “young people” and fast
• Get me some “young” apprentices and fast
• They’ll need some skills training plus great induction tooplease
• Lose some “old people” and fast
• Don’t discriminate though whatever you do!
• Narrowing of differentials between “staff” and first linemanagers in particular, Union pressure?
• Pay competition over not that much?
Long term impact of the NLW
• Extreme differential pressures or “pay compression”
• Large numbers of people stuck on the minimum
• Competition for talent within a “City” economy in thecontext of the Powerhouse?
• More or less pressure on progression? Maybe agedependant?
• Increased focus on development of skills
• Development of non pay benefits schemes
• Increased focus on recognition and appreciation
• PRODUCTIVITY!!!!
6
Productivity and the Workplace
Solutions discussed include:-
• Access to financial investment
• Development of new technologies and skills
• Improvements to infrastructure
What goes on inside the workplace is important inensuring such solutions can have maximum impact.
“any attempt to re-balance or develop the economywithout taking into account the workplace willalmost certainly end in failure” Sisson 2014
The 7 levers of Productivityhttp://www.acas.org.uk/productivity
Productivity Toolhttps://obs.acas.org.uk/Productivity
7
Further reading
• Why you hate work – New York Times 2014
• Efficiency up, turnover down, 6 hour day trial inSweden – Guardian Sept 2015
• The Era of cheap labour is over – Paul Mason Sept2015
• When the French clock off at 6pm they really meanit! – Guardian April 2014
What does an “Employer of Choice” look like?
Connect and Contact
• Contact
• 0161 833 8559
• 07979 704498
• Connect on LinkedIn
• Peter Monaghan
• Acas Employment Relations and Advice discussion group
• Follow us onTwitter
• @monaghanpj
• @acasorguk
• @Acas_NW
• https://uk.pinterest.com/BurnhamLandD/the-productivity-
puzzle/
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1
TLT LLPTLT LLPTLT LLP
What's happened andwhat's in store foremployment law
David Birchett, Solicitor17 March 2016
Trade unions
TLT LLP
Some statistics• Around 6.4 million employees in the UK were trade union
members in 2014 (BIS).
• Although decrease overall, 2014 data showed unionmembership levels in the private sector rising for thefourth consecutive year, to 2.7 million
• Increased industrial action in year to March 2015(previous year in brackets)
• Working days lost: 708,000(498,000)
• Stoppages: 211 (176)
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TLT LLP
Trade Union recognition
• What is it?
• Generally voluntary
• written or unwritten agreement
• scope of agreement up to parties
• Can be compulsory under statutory procedure
• covers pay, hours and holiday
TLT LLP
Key issues in recognition process
1. Is the application valid?• Does the TU have at least 10% membership?
• Would a majority of employees be likely to support recognition?
• Is there an existing collective agreement in force?
2. What is the bargaining unit?• If no agreement, Central Arbitration Committee (CAC) decides.
3. Are the majority of workers in the bargaining unitmembers of the union?
• If yes recognition will usually be ordered, if not ballot required
• Ballot requires majority including at least 40% of those in bargainingunit
TLT LLP
Can you block a recognition application?• Yes, according to the Boots case…
• Boots was able to block a statutory union recognitionapplication via a "sweetheart deal"
• The "sweetheart deal" was a collective agreement with a"friendly" union providing for negotiation about (i) facilitiesfor trade union representatives and (ii) consultationmachinery, but specifically excluding any negotiatingrights on pay, hours and holidays
• This was enough to block the statutory application forrecognition on pay, hours and holiday
• Held not contrary to Human Rights Act
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TLT LLP
Draft Trade Union Bill
• Trade Union Bill was published in July 2015
• Details a number of reforms proposed by theConservatives
• Imposes new restrictions on industrial action
TLT LLP
Views on the Bill…
Measures are aimed at"restoring confidence" in
unions, preventing"disruptive and
undemocratic" strikeaction
Government
Published a ECHRmemorandum
stating that the Billis compatible with
Human Rights
BIS
The Billcontravenes theECHR, includingan effective right
to strikeTradeUnions
Criticised the Bill,describing it as "the
most sustained attackon trade union and
worker's rights sincethe Combination laws
of the early 19thcentury"
Academics
TLT LLP
Ballot thresholds
• New turnout threshold requirement – at least 50%eligible members must vote
• Existing requirement for simple majority to vote 'yes'
• In addition, new support threshold for "important publicservices" – 40% 'yes' vote
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TLT LLP
Scenario
In your organisation (which does not carry out an"important public service") 1000 union members form partof the bargaining unit affected by the dispute…
TLT LLP
Question 1
A. 400
B. 500
C. 501
D. Not sure
How many members would have tovote for the ballot to be valid?
400
500
501
Notsure
23%
4%
23%
50%
TLT LLP
Answer…
500 membersmust vote for theballot to be valid
B
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TLT LLP
Question 2
A. 500
B. 250
C. 251
D. Not sure
If 500 members have cast a vote,what is the minimum number thatwould have to vote 'yes' for theindustrial action to take place?
500
250
251
Notsure
3% 3%
40%
55%
TLT LLP
Answer…
251 would have tovote yes – youneed a simple
majority of thosethat cast a vote.
C
TLT LLP
Scenario
Now imagine that your organisation (which still has 1000union members forming part of the bargaining unit affectedby the dispute) carries out an 'important public service'…
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TLT LLP
Question 3
A. (i) 500 and (ii) 251
B. (i) 500 and (ii) 400
C. (i) 501 and (ii) 451
(i)50
0 and (ii)
251
(i)50
0 and (ii)
400
(i)50
1 and (ii)
451
26%15%
59%(i) for the ballot to be valid?
(ii) in favour of industrial actiontaking place?
How many members would have tovote:
TLT LLP
Answer…
500 membersmust vote to meet
50% turnoutthreshold, but 400must vote yes to
meet 40% supportthreshold
B
TLT LLP
Notice requirements and rolling mandates
• Trade unions will be required to give employers 14 days'notice of strike or industrial action (currently this is 7days' notice)
• A ballot will only be valid for 4 months
• Giving parts of the Code of Practice on Picketing theforce of law, including the requirement to appoint asupervisor to oversee picketing
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TLT LLPTLT LLPTLT LLP
Redundancy Update
TLT LLP
Redundancy update
A. Made 20 or moreredundancies in thelast 12 months
B. Plan to make 20 ormore redundancies inthe next 12 months
C. Neither of the above
D. Both!Mad
e 20or more
redu
nda...
Planto
make20 or more
r...
Neither of
the above
Both!
17%11%
69%
3%
How many of you have:
TLT LLP
Collective redundancy
Meaning of establishment?
USDAW v VW Realisation 1 Ltd and Ethel Austin LtdEAT decision (July 2013):
The words "at oneestablishment" are to bedisregarded
=
The duty to collective consultis triggered when 20 or moreemployees are to be maderedundant across thebusiness
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TLT LLP
Referral to the European Court of Justice
Decision of the European Court (April 2015)
unit
The duty to collectivelyconsult arises where 20or more employees at alocal employment unit
are to be maderedundant
'Establishment' meansa local employment unit
TLT LLP
Collective redundancyCurrently:
No need to aggregate the dismissals across the businessto determine whether the obligation to collectively consulthas been triggered.
What next:
The Court of Appeal will determine whether eachbranch was a separate establishment.
TLT LLP
The cost of getting it wrong
A. Award of up to 90 days' net payfor each employee
B. Award of up to 90 days' grosspay for each employee
C. It depends on whether theemployee has a new role
Awardof up to
90 day..
Awardof up to
90day..
It depen
ds on whether.
..
10%20%
71%
What is the risk of failing tocollectively consult?
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TLT LLP
Answer…
Up to 90 days'gross pay for eachaffected employee
B
TLT LLP
The cost of getting it wrong
• In this case no consultation was undertaken becausethe employer was unaware of its legal obligations
• Ignorance is not an excuse
• Each affected employee was awarded the maximumprotective award of 90 days' gross pay
E Ivor Hughes Educational Foundation v Morris andOthers
TLT LLP
The cost of getting it wrong
• Chief Executive of Sports Direct is currently beingprosecuted for failing to notify BIS of collectiveredundancies (HR1 form)
• Criminal offence
R v Forsey
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TLT LLP
Workplace closures
EXOL Lubricants v Birch
• There was no redundancy situation as no diminution inrequirement to carry out work of a particular kind andthe place of work had not closed.
• For mobile employees, consider the contract and anyconnection with a depot or location
TLT LLP
Maternity leave and redundancy
A. When her maternity leave iscoming to an end?
B. When she is given notice ofredundancy?
C. When her employer becomesaware that her role maybecome redundant?
In a redundancy situation, womenon maternity leave must beoffered suitable alternative roles.When does this duty arise?
Whenher
maternity
l...
Whensh
e isgiv
ennoti
..
Whenher employ
er ...
7%
80%
13%
TLT LLP
Answer…
When heremployer
becomes awarethat her role may
become redundant
C
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TLT LLP
Awareness of redundancy
Redundancyconsultation
process
Notification ofemployees that
are at risk
Scope forpotential
redundancy
Sefton BC v Wainwright
Offer alternatives from the datethat she is notified that she
may be at risk
TLT LLP
Regulation 10 in practice
A. Regulation 10 would still apply andthe employee on maternity leaveshould be offered the continuingrole
B. Regulation 10 does not apply here,and the employer can select fromthe pool of two as usual
What if both employees were doingthe same job and the employer, ratherthan removing both roles andreplacing with an alternative, decidedto reduce to one continuing role?
Regulat
ion 10 would
sti..
Regulat
ion 10does
n..
43%
58%
TLT LLP
Answer…
Regulation 10 doesnot apply here, andthe employer can
select from the poolof two as usual
B
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TLT LLP
Regulation 10 in practice
• Reg 10 arises where "it is not practicable by reason ofredundancy" for employee to undertake her role
• There is no suitable alternative vacancy in this situation
• Once at risk, following selection, Reg 10 applies if thereare other suitable vacancies
• May influence how an employer structures theirapproach….
• Extension of Reg 10 to Shared Parental Leave
TLT LLP
Tax treatment of termination payments
• Government has carried out a consultation on simplifyingthe rules on the tax treatment of termination payments
• What were the proposals?
• Removal of the distinction between contractual and non-contractual payments
• Introducing a tax exemption that increases according to theemployee's years of service (subject to a maximum amount)
• Limiting the tax exemption to termination payments made onredundancy/compensation for unfair dismissal or discrimination
Holiday pay
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TLT LLP
Commission
Lock v British Gas Trading Ltd
• The European Court of Justice held that holiday pay shouldinclude commission and the case was remitted back to theEmployment Tribunal
• British Gas appealed to the EAT
• EAT held that the Working Time Regulations can be interpretedin line with EU law to allow results-based commission to beincluded in calculating statutory holiday pay
• What is the correct reference period?
• British Gas seeking permission to appeal to the Court of Appeal
TLT LLP
Overtime
Fulton and another v BEAR Scotland Limited
• EAT held that holiday pay should reflect “normal remuneration”including non-guaranteed overtime and remitted the claims backto the Employment Tribunal
• The Employment Tribunal held that the claims were time-barredas there was more than three months between eachunderpayment of holiday pay
• The Claimants have appealed to the EAT
Working time
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TLT LLP
Travel time
• Is a workers travel time between their home and the premises oftheir first and last customers of the day was working time under theWorking Time Directive?
• Yes, held the Advocate General and the European Court of Justice
Federacion de Servicios Privados del sindicatoComisiones Obreras v Tyco Integrated Security SLand another
Whistleblowing
TLT LLP
Public interest
Underwood v Wincanton Plc
• Complaint regarding contractual matters (commission payments)where around 100 employees were affected
Chesterton Global Ltd and another v Nurmohamed
• Complaint by four drivers regarding unfair allocation of overtime
• EAT held both were disclosures made in the “public interest”
• Appealed to the Court of Appeal
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Atypical working
TLT LLP
Zero hours contracts
A. Yes
B. No
Have you engaged employeeson a zero hours contract in thepast 12 months?
Yes No
77%
23%
TLT LLP
Zero hours contracts
• Key general election/political issue
• Exclusivity clauses were initially banned from May 2015for new contracts and unenforceable in existingcontracts
• From 11 January 2016, workers on zero hours contractshave a remedy against unfair dismissal and detriment forfailure to comply with an exclusivity clause
• Further reform?
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TLT LLP
Atypical workers as employees?
• Agency worker was neither an employee nor a workerof the end user
• Courts refused to imply that a contract of employmentexisted
• Contract of employment will only be implied if it isnecessary to do so
Smith v Carillion (JM) Ltd and another
TLT LLP
Agency workers
• Do agency workers have the right to be considered forvacancies on an equal footing with permanentemployees of the end user?
• No
• AWR and Directive are limited to providing informationabout vacancies within the end user
Coles v Ministry of Defence
TLT LLP
Part-time workers
• Part-time worker needs a full-time comparator tochallenge less favourable treatment
• Was the work carried out by the part-time workers thesame or broadly similar to the full-time workers?
• No – 15% of the work carried out by the part-timeworkers was different
• Wide discretion of tribunal
Moultrie and others v Ministry of Justice
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Any questions?
