Key employment law developments: November 2019

New EHRC guidance on NDAs/confidentiality agreements

The Equality and Human Rights Commission (EHRC) has issued new guidance on how confidentiality agreements should be used in discrimination and harassment cases. The guidance sets out good practice which aims to limit their use. It says that:

• confidentiality clauses should not be included as standard in template settlement agreements, but considered on a case-by-case basis taking a list of factors into account;

• confidentiality obligations imposed on an individual should be reciprocal; and

• employers should keep track of and monitor their use of confidentiality agreements and keep a central record to check they are not being overused.

The guidance does not have the effect of a statutory code, but can still be used as evidence in legal proceedings. Employers should review template settlement agreements, employment contracts, and relevant policies and procedures to reflect the new guidance.

Government publishes response to June WESC report on the use of NDAs

The Government has reiterated its commitment to introduce reforms to prevent the misuse of NDAs in its response to the WESC report of June 2019. The response largely mirrors much of the Government’s response to its own consultation on confidentiality agreements published in July 2019. Key points of interest are:

• the Government shares concerns about the impact of successive inappropriate NDAs on an organisation’s culture; and

• it also intends to consult on whether employers should be required to provide, at a minimum, a basic reference for any former employee.

Keep watch for further updates on this.

EU whistleblowing directive to kick in in 2021

The EU whistleblowing directive has now been approved by the EU Council and, once published in the Official Journal, will give member states two years to comply. The new directive gives whistleblowers who report breaches of EU law protection from retaliation and imposes new requirements on larger companies regarding their reporting and escalation channels.

The UK is one of the countries which already has comprehensive whistleblower protection and much of the directive is already contained in UK law. It depends on Brexit and our political situation as to whether it will be formally implemented in the UK, or whether the UK will align its legislation with the rest of Europe anyway. Companies may consider assessing their whistleblowing policies and procedures in anticipation.

Press release available on the European Council website.

Revised UK Stewardship Code published

The FRC has published a revised UK Stewardship Code 2020, which will take effect from 1 January 2020 for all UK-authorised asset managers. The Code, originally designed to improve engagement between institutional investors and companies, now has a broader emphasis on engagement over environmental and social issues and on promoting well-functioning markets.

• The new Code has a set of “apply and explain” Principles for asset owners (such as pension funds and insurance companies) and asset managers, as well as separate Principles for Service Providers.

• It has also been dubbed the “green” Stewardship Code because it strengthens its focus on social and environmental matters with its first explicit reference to climate change.

Asset managers should plan how they will demonstrate that their organisational and workforce structures promote effective stewardship and whether reward programmes incentivise the workforce to integrate stewardship and investment decision-making.

New Acas guidelines on menopause at work

In light of campaigns to raise awareness of the issue, such as World Menopause Day, Acas has published new guidelines on how to support workers through the menopause. The guidelines aim to educate employers on the impact and symptoms of the menopause, but also makes suggestions on how to handle it, such as a menopause policy and considering flexible working and other adjustments.

For more key employment law updates from us:
• read our key cases over the last month
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government
• scroll through our key dates timeline showing recent and anticipated changes to employment law, and
• attend our upcoming events or catch up on training.