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Employment

 

Following the introduction of the GDPR and the Data Protection Act 2018, one of the changes that has often been overlooked by employers has been the impact on the provision of references. Providing a reference about an employee to a prospective employer, will generally involve the disclosure and therefore the processing of personal data and so will accordingly need to be compliant with data protection law.

The concept of “discrimination arising from disability” was introduced by Equality Act 2010. It replaced the former concept of “disability-related discrimination”, which had become very difficult for claimants to establish due to a decision by the House of Lords which altered the way in which comparators in such cases were viewed. The Government felt that it needed to reduce the burden on claimants by making it easier for them to establish a case where they had experienced detrimental treatment because of their disability.

Despite the recent focus on gender and sexual harassment issues it is worth recalling that there other forms of discrimination in the workplace which merit attention. Recently the lesbian, gay, bisexual and transsexual (LGBT) campaigning organisation, Stonewall published a “Work Report" indicating the outcome of a survey of more than 5000 LGBT people about their life in Britain today.   The results provide some uncomfortable reading for those concerned about workplace equality issues. They include key findings that:

When faced with the need to reduce staff costs, one of the options employers often consider is changing terms and conditions of employment, for example reducing salaries or benefits to bring down costs while avoiding the need for redundancies. However, a contract of employment, like any other contract, requires the consent of both parties for changes to be effective. This can leave employers in difficult situations where employees refuse to consent to variations in their contracts which would be disadvantageous to them.

To establish that they have been directly discriminated against under the Equality Act 2010, a person needs to show that they have been treated less favourably than another person, known as a comparator, whose circumstances are not materially different than their own, because of one of the protected characteristics (such as sex).

The beginning of April brings important changes in employment law. This week, we highlight some of the most notable developments to have on your radar.

Clive Humby, the engineer of Tesco’s Clubcard, was widely credited as the first to use the phrase: “Data is the new oil.” Since this statement 12 years ago, many organisations have been mining, collecting and analysing data to spot patterns or trends to help tailor products and services for their clients with considerable implications for the use and potential misuse of this valuable commodity.

Pregnant employees are afforded special protection under the law, especially with regard to dismissal and redundancy. A woman is in the so-called “protected period” from the start of her pregnancy until the end of her maternity leave, and a dismissal or selection for redundancy which is because of her pregnancy or maternity leave is classed as automatically unfair. Where a dismissal is automatically unfair, there is no requirement for an employee to have two complete years of continuous employment before being able to raise an unfair dismissal claim and there is no upper limit on the compensatory award. Such a dismissal is also likely to amount to unlawful discrimination on grounds of pregnancy or maternity under the Equality Act.

Chambers UK 2018

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