Employment Law

This month our employment news has been rolling in from all levels of the courts and tribunals. A claim for personal injury due to workplace suspension and discipline was dismissed by the High Court who also found that legal representation wasn’t needed for a regular disciplinary hearing for a trade union. The Court of Appeal dismissed a claim of racial discrimination by contract workers, saying it didn’t fit the legal criteria, while the EAT sent back a case about a company’s holiday policy during the pandemic, saying it might be unfair to non-British workers. A postal worker’s dismissal due to illness should have considered job reassignment options, according to another ruling from the EAT, and further confirmed that future claims can be included in settlement agreements if clearly stated.

• Conduct: Civil claim for personal based on suspension and disciplinary process fails
• Trade Unions: Trade union disciplinary hearing could proceed without legal representation
• Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
• Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
• Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
• Settlement of Future Claims: EAT in England and Wales follows Court of Session’s decision in Bathgate

Conduct: Civil claim for personal injury based on suspension and disciplinary process fails

In Cavanaugh v Folsana Pressed Sections Ltd [2024] EWHC 1381 (KB), the claimant, who had been dismissed for gross misconduct, was unsuccessful in his claim that the defendant (his former employer) had suspended him without reasonable and proper cause, and that its breaches of duty, contractual and tortious, in suspending him and subjecting him to disciplinary investigation, had caused his psychiatric injury. The High Court held that:

• the defendant had not acted in breach of any contractual or tortious duty to the claimant in suspending the claimant, carrying out an investigation into his treatment of staff, or pursuing disciplinary proceedings against him, in circumstances where another employee had resigned and had raised genuine issues as to the claimant’s treatment of him and of other employees;
• the mental health notifications made by the claimant had not put the defendant on notice that further psychiatric injury had been a reasonably foreseeable consequence of its continuation of the investigation and disciplinary process;
• the defendant had made such adjustments to the process as the claimant had requested, and, in any event;
• the alleged breaches had not been the cause of the claimant’s losses.

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Trade Unions: Trade union disciplinary hearing could proceed without legal representation

In Bhogal v National Education Union (NEU) [2024] EWHC 1295 (Ch) the High Court refused to grant an injunction which the claimant sought, to allow him legal representation at a disciplinary appeal hearing. It held that:

• the NEU disciplinary rules do not permit legal representation at hearings and the claimant had no reasonable prospect of showing otherwise;
• the claimant did have reasonable prospects of showing that where natural justice requires legal representation to be granted, then that will override any contractual provision preventing legal representation (i.e. as a matter of law);
• the claimant did not have reasonable prospects of showing that natural justice required legal representation at his hearing, as this was a fairly ordinary disciplinary case.

In deciding the final issue the court took into account the following facts, based on the decision in R v Home Secretary ex p Tarrant [1985] QB 251:

• the seriousness of the charge;
• whether any points of law were likely to arise;
• the capacity of the claimant to present their own case;
• procedural difficulties;
• the need for reasonable speed in the decision making process;
• the need for fairness between the claimant and other participants.

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Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client

In Boohene v The Royal Parks Ltd [2024] EWCA Civ 583 the claimant contract workers, who were predominantly of black or other minority ethnicity, brought a claim in the employment tribunal for indirect racial discrimination purportedly under section 41 of the Equality Act 2010, which is headed ‘Contract Workers’. The alleged discrimination consisted of a failure to pay the claimants the London Living Wage, which the respondent paid to its directly employed staff, who were predominantly white. The employment tribunal allowed the claim and the EAT overturned the decision. The claimants appealed to the Court of Appeal.

Dismissing the appeal, the Court of Appeal held that the claim of indirect discrimination had not fallen within the scope of s.41(1) of the Equality Act 2010. The claimants could have no claim against the respondent under s.41 because the treatment which they complained about related to the remuneration payable under their contracts with a third party and had nothing directly to do with the principal-worker relationship.

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Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered

In NLS Ltd v Zaluski [2024] EAT 86 the respondent had policies that staff were responsible for ensuring that authorised leave factored in any period of quarantine, and that staff must return from holiday on the pre-authorised date, with any failure to do so beyond three days liable to be classed as gross misconduct. The claimant had to travel to Poland following the death of his family and due to various quarantine periods he overstayed his leave and was given a final written warning. The employment tribunal held that the respondent’s policy indirectly discriminated against those who, like the claimant, are not British, and was not justified.

The EAT allowed the respondent’s appeal in relation to justification. The EAT also found that the tribunal had erred in awarding aggravated damages. Both issues were remitted to a different tribunal.

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Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course

In Bugden v Royal Mail Group Ltd [2024] EAT 80, the claimant, who had been dismissed as a result of periods of ill-health absence over a number of years, contended that the employment tribunal should itself have raised the possibility of redeployment both as a potential reasonable adjustment under s.20 of the Equality Act 2010 and in relation to its determination of the fairness of the dismissal under s.98(4) of the Employment Rights Act 1996. This issue had not been argued by the claimant before the employment tribunal and was not referred to in the list of issues.

The EAT held that the tribunal:

• had not erred in failing to raise redeployment as a potential reasonable adjustment with the parties as it was not an issue which ‘shouted out’ from the material before it, but
• had erred in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal as this was a sufficiently well-established principle that it should have addressed as a matter of course even though it had not been raised by the parties.

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Settlement of Future Claims: EAT in England and Wales follows Court of Session’s decision in Bathgate

In Clifford v IBM United Kingdom Ltd [2024] EAT 90, the EAT held that:

• future claims can be waived in a settlement agreement so long as appropriately clear language is used; and
• this is the case irrespective of whether it is a ‘clean break’ end of employment situation or the parties remain in a continuing employment relationship.

The EAT in England and Wales endorsed and followed the Court of Session’s decision in Bathgate v Technip Singapore [2024] IRLR 326. At the heart of the decision is the reasoning that the purpose of s.147(3) of the Equality Act 2010, and in particular subparagraph (b), is to prevent an employer being able to use a blanket waiver in relation to which an employee could sign away their rights without appreciating the significance of what they were doing. There are, however, no temporal limitations on what kind of claims can be waived. As such, s.147(3) of the Equality Act 2010 regulates how the parties enter into a statutory settlement agreement, rather than constraining what kinds of claims can be settled.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

This month we bring you a range of employment law updates. A CIPD survey revealed that a quarter of UK employees faced workplace conflict in the past year, with women, ethnic minorities, and disabled workers most affected. PwC reported a slight decrease in the UK’s gender pay gap, though significant disparities remain, particularly in the Financial Services sector. NHS Employers updated guidance on settlement agreements and confidentiality clauses and the Institute of Directors opened a consultation on a new voluntary Code of Conduct for Directors to enhance decision-making and public trust.

• CIPD Study: Quarter of UK employees have experienced workplace conflict in the past year

• Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024

• Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses

• Corporate Governance: Institute of Directors publishes consultation on Code of Conduct for Directors

CIPD study: Quarter of UK employees have experienced workplace conflict in the past year

On 11 June 2024, website People Management published an article revealing that a recent survey by the CIPD has highlighted that women, ethnic minorities and disabled workers are the most likely to report encountering conflict, as commentators call for employers to recognise the importance of a positive culture.

The CIPD Good Work Index 2024, which surveyed more than 5,000 UK workers, discovered that:

• a quarter (25 per cent) of UK employees – an estimated eight million people – have encountered workplace conflict in the last year;
• the most prevalent types of conflict were: being humiliated or undermined at work (48 per cent), being shouted at or having a heated argument (35 per cent), verbal abuse or insult (34 per cent) and discriminatory behaviour (20 per cent);
• just over half (54 per cent) of those who reported conflict said they were satisfied with their jobs, compared to 77 per cent of those who did not experience conflict;
• employees who experienced conflict were found twice as likely to say they would leave their job in the following year (33 per cent, compared to 16 per cent of those who had not reported conflict). 

The report also noted that:

• people who experience conflict in the workplace have lower job satisfaction and are more likely to experience ill mental and physical health;
• less than a third (28 per cent) of those who experienced workplace conflict in the past 12 months reported that their work had a good impact on their mental health, compared to 43 per cent of those who did not experience conflict;
• a quarter (25 per cent) of those who reported experiencing conflict said work had a positive impact on their physical health, compared to 32 per cent of those who did not face conflict;
• two fifths (42 per cent) of those who experienced workplace conflict in the previous 12 months said they ‘always’ or ‘frequently’ felt exhausted, and 37 per cent said they always or often felt under pressure.

The CIPD survey found that employees’ most common response to conflict was to simply ‘let it go’ (47 per cent), followed by discussing with a manager or HR (29 per cent), informal discussions, either with someone outside work such as family or friends (21 per cent) or with the other person involved (17 per cent). Only a few (1 per cent) took the case to an employment tribunal. Two thirds (66 per cent) of people said their conflict was either fully or partially resolved. Just 36 per cent said their workplace conflict had been fully resolved. 

The report said: “It would, of course, be unrealistic to suggest that every source of conflict can be resolved to the full satisfaction of both parties. But more than a third did say they had no resolution at all.” 

It continued: “Those who reported conflict were significantly less likely to think senior managers and directors had the right vision, or that they were able, or could be trusted, to act with integrity.” 

For more commentary on the findings and advice and approaches to management which can be helpful, please read the full article.

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Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024

PwC has published data relating to the mandatory pay gap of organisations reporting for the year 2023–2024. The data shows a decrease in the mean gender pay gap of 0.4% over the past year, down from 12.2% to 11.8%, with an overall reduction of 1.6% in the mean pay gap since 2017 when reporting started. This time around 10,408 companies disclosed their gender pay gap. Almost 60% of organisations reported decreases, though the majority of these reductions were below 2%.

The Financial Services sector continues to report the biggest gender pay gaps, which is reflective of the ongoing issues with gender equality within the sector.

According to PwC, these incremental reductions in the gender pay gap are indicative that ‘pay parity remains out of reach’, but that there are things that businesses can do in order to drive change.

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Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses

NHS Employers has updated its guidance for employers on the use of settlement agreements and confidentiality clauses when resolving a workplace dispute or ending an employment contract. The guidance includes the latest information on legislative requirements, good practice examples on the freedom to speak up, guidance on Mutually Agreed Resignation Schemes, information on board members and the NHS England Fit and Proper Person Test Framework, and links to further resources.

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Corporate Governance: Institute of Directors publishes consultation on Code of Conduct for Directors

The Institute of Directors (also known as the IoD) has published a consultation document on a Code of Conduct for Directors. The Institute of Directors has said that the Code will be a practical tool to help directors make better decisions and provides organisational leaders with a behavioural framework to help them build and maintain public trust in their business activities. The Institute of Directors emphasises that the Code is a voluntary commitment and is not intended to create a new burden of compliance.

The Institute of Directors requests the business community and general public to provide their views on the Code by 16 August 2024.

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Further Information:

If you would like any additional information on employment law, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

Today’s evolving landscape of employment standards, the real living wage has emerged as a crucial benchmark for fair compensation. At Dixcart UK, we’re dedicated to providing practical guidance to our clients across various sectors. Join us as we look into the implications of the real living wage for employers and offer insights to navigate this transition effectively.

Understanding the Real Living Wage

Unlike statutory minimum wage regulations, the real living wage is a voluntary commitment undertaken by employers. It aims to ensure that employees receive compensation reflecting the actual cost of living. Updated annually, this wage seeks to bridge the gap between minimum wage standards and the economic realities faced by workers.

For employers considering adopting the real living wage, careful evaluation is essential. While the potential benefits, such as attracting top talent and enhancing workforce morale, are evident, practical considerations must be taken into account.

• Financial Assessment

Before committing to the real living wage, conduct a thorough financial assessment of your business. Analyse your current wage structure and revenue streams to determine if you can afford to meet the real living wage rates. Consider potential adjustments to your budget and financial projections to accommodate increased wage costs.

• Addressing Challenges

Transitioning to the real living wage may pose challenges for employers, particularly in sectors with tight profit margins. Anticipate potential hurdles, such as renegotiating contracts with clients or adjusting pricing strategies, to ensure financial sustainability. Our pragmatic approach equips clients with the tools to navigate these challenges effectively.

• Engaging Employees

Effective communication with employees is crucial during the transition to the real living wage. Engage your workforce in transparent dialogue, explaining the rationale behind the decision and addressing any concerns they may have. Fostering a culture of inclusivity and transparency is key to a smooth transition.

Moving Forward with Confidence

Embracing the real living wage reflects a commitment to fair and equitable employment practices. At Dixcart UK, we’re dedicated to supporting employers as they navigate this transition. By aligning values with actions, our clients can enhance their reputation and cultivate a motivated workforce.

In conclusion, adopting the real living wage requires careful consideration and planning. At Dixcart UK, we stand ready to assist employers in making informed decisions that promote fairness and prosperity for all stakeholders.

To find out how we can help your business, or if you have any questions regarding the transitioning to the real living wage, please contact us.

Employment Law

This month’s update includes some interesting cases examining an injunction in a would-be whistleblowing case and the effective maintenance of the confidentiality of the documents to be disclosed, the specifics of case law surrounding the discrimination elements of two quite different claims, and a complex case distinguishing worker status from volunteer status where remuneration is involved.  

• Injunction: Employee cannot use tribunal to bring stolen documents into public domain
• Disability Discrimination: Tribunal did not properly consider discriminatory element of claim
• Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
• Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities

Injunction: Employee cannot use tribunal to bring stolen documents into public domain

In Payone GmbH v Logo [2024] EWHC 981 (KB) the King’s Bench Division granted the claimant employer a final injunction against the defendant employee, restraining him from making further use of documents which he had misappropriated during his employment (the confidential documents). The claimant was a payment services provider, incorporated and domiciled in Germany. The defendant, a self-proclaimed ‘whistleblower’, had made substantial disclosures of the confidential documents, which he had also deployed in Employment Tribunal (ET) proceedings against the claimant. Judgment had been entered for the claimant on its claims for conversion, breach of contract and equitable breach of confidence.

In the present proceedings, the main issue was whether the defendant should be restrained by final injunction from making further use of the confidential documents, even though some (or all) of it had (according to the claimant) entered the ‘public domain’ through the ET proceedings.

The court held, among other things, that: (i) the confidential information had not lost the quality of confidence; (ii) save insofar as express references were made to it in the ET judgment, neither the information, nor documents including it, had entered the ‘public domain’, so as to defeat the claimant’s entitlement to restrain further disclosure consistently with free speech considerations; (iii) the nature of the references in the ET judgment did not undermine confidentiality in the documents themselves; (iv) the protection of the claimant’s rights to confidentiality and property was a legitimate aim; (v) to the extent that open justice was engaged, it was substantially outweighed by the interests of the claimant and affected third parties, who would suffer prejudice if the information were made public; and (vi) in circumstances where the claimant had applied for default judgment on its only claim in the proceedings, namely for a final injunction, and where the judge had struck out a witness statement put forward by the defendant as a defence, there could be no question of the defendant maintaining any defence to the claimant’s claim; and (vii) legally, the balance of interests fell firmly in favour of maintaining confidentiality.

The court rejected the proposition that an employer whose confidential documents had effectively been stolen and then deployed against it in the ET waived rights of confidence in those documents against the employee unless the employer applied for extensive restrictions, including a private hearing in the ET.

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Disability Discrimination: Tribunal did not properly consider discriminatory element of claim

In Z v Y [2024] EAT 63, the Employment Appeal Tribunal (EAT) allowed the claimant’s appeal against the decision of the Employment Tribunal (ET) who ruled that the claimant was constructively unfairly dismissed by the respondent, but that her claims under the Equality Act 2010 had been brought out of time and were to be dismissed. The claimant’s claim had included a complaint of discriminatory constructive dismissal but clarification of her case focused on the allegations of prohibited conduct. The claimant contended, among other things, that: (i) it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal; and (ii) the ET erred in its approach to the determination of whether there had been a continuing act, considering each of the found instances of discrimination in isolation, when it ought to have adopted a holistic approach.

The EAT held, among other things, that: (i) the ET had erred in failing to determine the claim of discriminatory constructive dismissal, which was part of the pleaded case before it; (ii) the list of issues had not replaced the pleaded claim; and (iii) the ET had been wrong to slavishly stick to the list. Consequently, the claim of discriminatory constructive dismissal and the issue had been remitted to the ET for reconsideration along with the issue of remedy.

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Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met

In Baldwin v (1) Cleves School, (2) Hodges, (3) Miller [2024] EAT 66, the Employment Tribunal had found the respondent employer liable for acts carried out by the two individual respondents. However, it dismissed separate claims against the individual respondents brought under section 110 of the Equality Act 2010, on the basis that it found their acts were misguided attempts to address a complex situation.

The Employment Appeal Tribunal held that there had been an error of law because:

• a contravention of s.110 Equality Act 2010 arises if A is an employee, A does a discriminatory act in the course of their employment, that act amounts to a contravention of Equality Act 2010 by the employer and none of the express exceptions in s.110 apply.
• s.110 confers no discretion on an employment tribunal not to find a contravention of that section if the conditions for individual liability under it are met (as they were in this case).

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Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities

In Groom v Maritime and Coastguard Agency [2024] EAT 21, the respondent, the Maritime and Coastguard Agency (MCA), runs the Coastguard Rescue Services (CRS) which is made up of 325 Coastguard Rescue Teams. There are approximately 108 employed staff and 3500 volunteer Coastal Rescue Officers (CRO) and Station Officers (SO). Generally, an individual is understood to be a volunteer if they are not obliged to work but agree to perform work for which they are not paid. Without consideration there can be no contract (whether as an employee or as a worker). However, volunteers may be reimbursed expenses that they have genuinely incurred with losing their status as a volunteer. As a volunteer, an individual can come and go as they please. Volunteer roles can often be ill-defined and, if some consideration can be found, an individual may find that their ‘voluntary’ role amounts to one as a ‘worker’ or an ‘employee’, thus acquiring statutory employment rights

The claimant was a CRO and then an SO. Documents that governed the relationship between the claimant and respondent included a Volunteer Handbook, a Volunteer Commitment, a Code of Conduct and a document headed ‘Coastguard Rescue Service—Detail Coastguard Rescue Officer Remuneration’. These documents explain that, while there is no obligation to claim remuneration, it is possible to do so for time, travel and expenses associated with specific activities.

The claimant was invited to a disciplinary hearing. His membership of the CRS was terminated and he was issued with a P45. The claimant brought employment tribunal proceedings claiming that he was a worker and should have been afforded the right to be accompanied at the disciplinary hearing.

The employment tribunal decided that the claimant was not a worker because there was no contract between himself and the respondent and the relationship was genuinely voluntary. Its reasoning included that:

• the agreement was described as a voluntary agreement;
• there was no ‘automatic’ remuneration for any activity and many CROs never claim;
• there were a number of activities for which remuneration was not payable at all, participation in which is only explicable in the context of volunteering;
• the degree of control did not appear to be particularly significant;
• the fact that an HMRC investigation concluded CROs were not workers was ‘clearly significant’.

The claimant appealed to the EAT.

The EAT allowed the appeal. It held that:

• the tribunal had erred in finding that there was no contract at all between the parties, particularly taking into account the right to remuneration for particular activities;
• there was no dispute between the parties that the claimant was obliged to perform services personally and that the MCA was not a client or customer of a business carried on by the claimant;
• the claimant was therefore a worker when he undertook activities in respect of which he was entitled to remuneration;
• the question of worker status in relation to attendance at non-remunerated activities remains an open question, which the parties may argue in the tribunal.

The EAT’s more detailed reasoning on the entitlement to remuneration and the existence of a contract included, among other things, that although use of the word volunteer may suggest an absence of intention to create legal relations, ‘volunteer’ is not a term of art, the legal status of all volunteers is not necessarily the same and ultimately, whether or not there is a contract is determined from the documents as a whole. On the documents in this case, the tribunal erred in failing to find that when the claimant attended an activity (at least one attracting remuneration) there was a contract under which he provided services to the respondent.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

May’s news is centred around immigration matters that have arisen recently as they relate to employment law, the government’s response to the ‘Sexism in the City’ report (which is actually quite an interesting read), and some updates from the ICO and EU parliament about how we should be dealing with data in the UK, and the penalties and fines if you don’t get it right.

• Immigration: Food delivery companies to introduce Right to Work checks for substitute drivers
• Immigration: CPS publishes report on reducing migration to the UK
• Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 May 2024
• Sex Discrimination: Responses published to ‘Sexism in the City’ Report
• Data Protection: New detailed guidance from the ICO on fines and penalties
• Data Protection: EU Parliament submits written evidence in Lords’ UK-EU data adequacy inquiry

Immigration: Food delivery companies to introduce Right to Work checks for substitute drivers

The Home Office has announced that following discussions with the government, Deliveroo, Just Eat and Uber Eats have confirmed their intentions to take steps to prevent exploitation of account sharing by their drivers. All three companies have confirmed their intention to roll out new processes which will enable them to check whether substitute drivers have a legal right to work in the UK. Deliveroo has already started this process, beginning right to work checks for substitute drivers as part of the registration process earlier this month.

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 Immigration: CPS publishes report on reducing migration to the UK

The Centre for Policy Studies (CPS) has published a report, written by former Immigration Minister Robert Jenrick MP, former minister Neil O’Brien MP, and CPS Research Director Karl Williams, entitled ‘Taking back control’ which argues that recent immigration to the UK has placed pressure on housing, public services and infrastructure while failing to deliver on the economic benefits which its advocates have promised. The report sets out over 30 recommendations which the authors believe will reduce immigration, including:

• retiring the Shortage Occupation List altogether, rather than replacing it with an Immigration Salary List
• raising the minimum hourly wage in the care sector by 20–40p and setting the salary threshold for health and care visas above the National Living Wage
• creating an annual cap on each individual visa route, but creating time-limited exceptions to visa limits for NHS workers, until the NHS Long Term Workforce Plan ramps up.

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Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 May 2024

The below data shows the number of Home Office-approved employer sponsors, according to visa route, as listed on the Home Office’s register of licensed sponsors on the specified date.

As at 13 May 2024, Skilled Worker sponsors account for the majority of employers (over 84.23%). 8.57% of sponsors have a Global Business Mobility-Senior or Specialist Worker licence, and the remaining 13 work routes account for the remaining 7.2%.

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Sex Discrimination: Responses published to ‘Sexism in the City’ Report

The Treasury Committee has published the responses by HM Treasury, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) to its Sexism in the City inquiry report. One reform put forward in the report was a total ban on the use of non-disclosure agreements (NDAs) in all harassment cases. In its response, the government highlights action it has taken in preventing the use of NDAs in other sectors and says an NDA would ‘most likely’ be unenforceable when related to reporting a crime to the police.

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Data Protection: New detailed guidance from the ICO on fines and penalties

In March 2024, the Information Commissioner’s Office (ICO) published new guidance (the Guidance) setting out how it will determine penalty notices and calculate fines under the UK General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR) and the Data Protection Act 2018 (DPA 2018) (together, the UK data protection laws). The Guidance replaces the sections about penalty notices in the ICO Regulatory Action Policy published in November 2018 (the RA Policy) and is significantly more detailed. The Guidance applies to all new cases regarding infringements of the UK data protection laws and to existing cases in which no notice of intent to impose a fine has been issued.

The Guidance is divided into three sections:

• statutory background
• circumstances in which the ICO would consider a penalty notice appropriate
• calculation of the appropriate amount of the fine

The Guidance also contains a useful table at Annex 1 setting out the provisions of the UK data protection laws for which the ICO can impose a fine.

When assessing whether to issue a penalty notice, the ICO will consider: (i) the seriousness of the infringement; (ii) relevant aggravating or mitigating factors; and (iii) the effectiveness, proportionality and dissuasiveness of a penalty.

The ICO will take the following five-step approach when calculating any fine:

1) Assessment of the seriousness of the infringement

2) Accounting for turnover (where the controller or processor is part of an undertaking)

3) Calculation of the ‘starting point’ having regard to the seriousness of the infringement and, where relevant, the turnover of the undertaking

4) Adjustment to take into account any aggravating or mitigating factors

5) Assessment of whether the fine is effective, proportionate and dissuasive.

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Data Protection: EU Parliament submits written evidence in Lords’ UK-EU data adequacy inquiry

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) has submitted written evidence to the House of Lords European Affairs Committee (EAC)’s inquiry into data adequacy and its implications for the UK-EU relationship. The LIBE Committee starts its submission by making remarks on the Data Protection and Digital Information Bill (DPDIB) currently reviewed by the UK Parliament, including the definition of ‘singling out‘ and ‘pseudonymised data‘. The LIBE Committee then provides responses to the questions asked by the Lords Committee.

The LIBE Committee expresses reserves in relation to changes to the role of the ICO as set out by the DPDIB, deeming that they ‘constitute a significant departure from the EU data protection supervision model, where the independence of the national supervision authority is an important cornerstone’. The LIBE Committee then goes on to point out that the topic of onward transfers and ‘Henry VIII‘ clauses set out in the DPIB may be factors influencing the next European Commission when deciding whether to renew the adequacy decisions for the UK in June 2025. It is also concerned that the provisions of the DPDIB permitting automated decision making and large database of personal data to be used for AI training and development without informing the data subjects or seeking their consent would be contrary to Article 22 of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR).

The LIBE Committee further shares its concerns that the UK adequacy status could lead to the bypassing of the EU rules on international transfers to countries or international organisations not deemed adequate under EU law, and that the UK could become a transit country for data that cannot be sent from the EU/EEA to ‘inadequate’ third countries.          

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

The start of 2024 has been a busy time for new employment Regulations and Acts coming into force, the majority of which relate to further extending family friendly rights within the workplace.

We have set out below a summary of the changes all of which have now come into force. Employers should therefore undertake a review of their corresponding polices as soon as possible to ensure they include the additional rights and responsibilities set out below.

1. The Paternity Leave (Amendments) Regulations 2024.

These Regulations came into force on 8 March 2024 and make the following changes:

• employees can take their two-week paternity leave entitlement as two separate one-week blocks (rather than having to take just one week in total or two consecutive weeks).
• employees can take paternity leave at any time in the 52 weeks after birth (rather than having to take leave in the 56 days following birth).
• employees only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the Expected Week of Childbirth (EWC)).

The Regulations are stated to apply in all cases where the EWC is on, or after, 6 April 2024.  

• The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024.

These regulations came into force on 6 April 2024 and extend the period of special protection from redundancy for employees who are on maternity leave, adoption leave or those on shared parental leave. They bring the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 into operation.

Previously, regulation 10 of the Maternity and Parental Leave Regulations 1999 stated that parents on maternity leave, adoption leave or shared parental leave should be offered first refusal of any suitable alternative employment which may be available in a redundancy situation. This protection is, under the Act, extended as follows:

• For maternity – the protected period now covers pregnancy, alongside 18 months from the first day of the estimated week of childbirth. The protected period can be changed to cover 18 months from the exact date of birth if the employee gives the employer notice of this date prior to the end of maternity leave.
• For adoption – the protected period now covers 18 months from placement for adoption.
• For shared parental leave – the protected period now covers 18 months from birth, provided that the parent has taken a period of at least 6 consecutive weeks of shared parental leave. This protection will not apply if the employee is otherwise protected under one of the two points above.

These new rules apply to any pregnancies notified to the employer on or after 6 April 2024 and in respect of the 6-month additional protected period, any maternity leave ending on or after 6 April 2024.

• The Flexible Working (Amendment) Regulations 2023.

The new Flexible working Regulations came into force on 6 April 2024.

• The Regulations remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The change makes the right to request flexible working a Day One right.
• This new right applies to flexible working requests made on or after 6 April 2024.

• Employment Relations (Flexible Working) Act 2023

This Act sets out further changes to the rules on flexible working requests and came into force on 6 April 2024. A summary of the changes is:

• Employees can now make two flexible working requests in any 12-month period (previously only one request).
• Requests have to be dealt with by employers within two months of receipt of a request if no extension is agreed (previously employers had three months to deal with a request).
• Employers must consult with an employee before they are able to refuse a request for flexible working.
• In their application, employees will no longer have to explain what effect they believe agreeing to the request would have on an employer and how any such effect might be dealt with.

• New Working Time Regulations to simplify holiday entitlement and holiday pay calculations

For those with flexible working arrangements i.e. irregular or part-year contracts, these Regulations are designed to be helpful in providing greater clarity around holiday pay and accrual.

From 1 January 2024, these Regulations:

• Defined irregular hours workers and part-year workers in relation to the introduction of the holiday entitlement accrual method and rolled-up holiday pay;
• Removed the Working Time (Coronavirus) (Amendment) Regulations 2020 which affect the accrual of COVID-19 carryover of leave;
• Maintained the current rates of holiday pay where 4 weeks is paid at normal rate of pay and 1.6 weeks paid at basic rate of pay, whilst retaining the 2 distinct pots of leave; and
• Defined what is considered ‘normal remuneration’ in relation to the 4 weeks of statutory annual leave.

The following reforms also apply to leave years beginning on or after 1 April 2024:

• They set out a method to calculate statutory holiday entitlement for irregular hours and part-year workers;
• They also set out a method to work out how much leave an irregular hour or part-year worker has accrued when they take maternity or family related leave or are off sick; and
• They also allow rolled-up holiday pay as an alternative method to calculate holiday pay for irregular hours workers and part-year workers.

If our employment law specialists can assist with any queries on these latest changes or with drafting policy updates, then do not hesitate to get in touch with us at hello@dixcartuk.co.uk and we would be more than happy to help.

Employment Law

This month we bring you some technical cases looking at the circumstances in which a dismissal could be fair despite a full lack of process because of the actions of the disgruntled employee. Uber Eats has been found to have some bugs in its facial recognition software which has caused it to be seemingly discriminatory, a warning to employers using AI. Meanwhile, the Supreme Court has made a declaration of incompatibility between Trade Union law and the European Convention of Human Rights, as it appears to be lacking protection for people lawfully striking other than protection from dismissal. Read on for more details.

• Unfair Dismissal: ‘Rare and unusual’ dismissal fair despite no written warning or appeal
• Racial Discrimination: Uber Eats courier receives financial settlement following alleged discriminatory facial recognition checks
• Trade Unions: Incompatibility of Trade Union Act v Rights to Strike under ECHR

Unfair Dismissal: ‘Rare and unusual’ dismissal fair despite no written warning or appeal

In Matthews v CGI IT UK Ltd [2024] EAT 38, the EAT held that an IT consulting business was right to fire a director without warning after their professional relationship irretrievably broke down, and made even the right to appeal a ‘futile’ exercise.

The EAT concluded that Guy Matthews was not victimised or unfairly dismissed because he gave his bosses little option but to fire him following months of attempts to keep him on, even as he continuously accused a manager of undermining him without proof.

‘This is an unusual and rare case where a dismissal has been found to be fair when there has been no written warning and no offer of an appeal. …They made clear factual findings and were entitled to conclude that this was such a rare case’, Judge Susan Walker wrote for the three-person panel.

Matthews started working at CGI, an IT and business consulting services company, in May 2017. He later became a director and consulting expert on a team specialising in 5G technology, working under Steve Evans. However, around May or June 2020, CGI decided to cut short its 5G pursuits and started a redundancy process, meaning Matthews’ job was at risk, the judgment said. Matthews’ relationship with Evans then began to strain. He believed that Evans was scapegoating him for the failed 5G venture, and had used him as a cover to make another colleague redundant, so Matthews submitted a complaint, the judgment said.

An internal team upheld part of Matthews’ grievance, finding that the company had placed ‘undue weight’ on his 5G experience when it decided his role was at risk when he had several other skills. However, the reviewer dismissed Matthew’s other allegations against Evans, noting that there was nothing to back it up. Matthews then accused the reviewer of incompetence and threatened to submit more grievances against Evans.

By this point, CGI had abandoned the redundancy process, and in November 2020 Matthews began a phased return to work after being sick for some time, the judgment said. CGI gave Matthews the option of remaining on the current team and reporting to Evans, or to try and take on an equivalent role on another team. But Matthews didn’t agree with either, and later in December 2020 rejected another offer. By February 2021, CGI had dismissed Matthews, citing an irretrievable breakdown in the professional relationship.

The EAT concurred with the earlier tribunal’s reasoning and conclusions. Although CGI initially made a mistake in the redundancy procedure, the company genuinely and persistently tried to find a reasonable solution to keep Matthews on but got rejected at every turn, the panel said. And there was no indication that Matthews was willing to make concessions or offer another proposal, given his conviction that Evans should be punished.

The Employment Tribunal had correctly considered whether CGI should have taken less extreme steps. But giving Matthews a warning would have ‘most likely generated a further escalation’, and mediation and the right to appeal would have been futile, too, because of Matthews’ stance that CGI needed to accept wrongdoing on Evans’ part, the judgment said.

Moreover, the panel stressed that the previous judge had not, in fact, applied the wrong legal test for victimisation. Matthews had argued that the judge wrongly used the test for automatic unfair dismissal—weighing whether his protected disclosures were the principal reason for getting the boot, rather than considering whether the whistleblowing complaints had a ‘material influence’ on his dismissal, the judgment says. However, Walker J said it was ‘quite clear that the correct test was applied, and the Employment Tribunal did not apply a test of what was the ‘principal reason’ for dismissal. The quote relied on by the claimant is in a different part of the judgment dealing with other complaints’.

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Racial Discrimination: Uber Eats courier receives financial settlement following alleged discriminatory facial recognition checks

In Manjang v Uber Eats UK Ltd and others (ET Case No 3206212/2021), the Equality and Human Rights Commission (EHRC) has announced that Uber Eats driver, Pa Edrissa Manjang, has received a financial settlement, following allegations that facial recognition checks required to access his work app were racially discriminatory, which led to him being unable to access the Uber Eats app to secure work.

In 2021, Mr Manjang was removed from the platform following a failed recognition check and subsequent automated process. He was told by Uber Eats that they had found ‘continued mismatches’ in the photos he had submitted to access the platform. The EHRC and the App Drivers and Couriers Union, both concerned by the use of Artificial Intelligence (AI) and automated processes in this case, helped with funding.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

“AI is complex, and presents unique challenges for employers, lawyers and regulators. It is important to understand that as AI usage increases, the technology can lead to discrimination and human rights abuses.

We are particularly concerned that Mr Manjang was not made aware that his account was in the process of deactivation, nor provided any clear and effective route to challenge the technology. More needs to be done to ensure employers are transparent and open with their workforces about when and how they use AI.”

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Trade Unions: Incompatibility of Trade Union Act v Rights to Strike under ECHR

In Secretary of State for Business and Trade v Mercer  [2024] UKSC 12, the appellant, Ms Mercer, was employed as a support worker in the care sector by a care services provider, Alternative Futures Group Ltd (“AFG”). As a workplace representative of UNISON, she was involved in planning and took part in lawful strike action. She was subsequently suspended by AFG. While suspended, Ms Mercer received normal pay but was unable to earn pay for the overtime she would otherwise have worked. Ms Mercer brought a claim against AFG under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) that she had suffered detrimental treatment done for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union “at an appropriate time” or penalising her for having done so.

By agreement between the parties, the Employment Tribunal determined as a preliminary issue whether, in light of articles 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR), section 146 of TULRCA protected workers from detriment short of dismissal for participation in lawful industrial action as a member of an independent trade union. The Employment Tribunal held that it did not. However, the Employment Appeal Tribunal allowed Ms Mercer’s appeal and held that it could be interpreted as doing so. The Court of Appeal allowed a further appeal by the intervener, the Secretary of State for Business and Trade, holding that section 146 could not be interpreted compatibly with article 10 of the Convention but refused to make a declaration of incompatibility. Ms Mercer then appealed to the Supreme Court.

The Supreme Court, in allowing in part the appellant employee’s appeal against the decision of the Court of Appeal (Civil Division) that although section 14 of TULRCA could not be interpreted compatibly with article 10 of the ECHR a declaration of incompatibility was refused on the basis that there was a lacuna (gap) in the law rather than a specific statutory provision which had been incompatible. It therefore held that that section was the only route that could be available to the appellant to vindicate her article 11 right in the domestic courts or tribunals.

However, that route was blocked by the conventional interpretation given to section 146 of the TULRCA. That was what was inherently objectionable in the terms of section 146 as it stood and that meant that section 146 was incompatible with article 11 of the ECHR. Accordingly, a declaration was made under section 4 of the Human Rights Act 1998 that section 146 of TULRCA was incompatible with article 11, insofar as it failed to provide any protection against sanctions short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.

The Supreme Court unanimously allowed the appeal to the extent that it makes a declaration that section 146 TULRCA is incompatible with article 11 of the ECHR.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

With the new tax year comes plenty of changes to make yourself aware of. We have a whole raft of key employment changes such as to rates of statutory pay and leave, including a new system of working out holiday entitlement for irregular and part-year workers. There are new toolkits and guidance in relation to Requests for Flexible Working, Pregnancy and Maternity Discrimination and how to use AI in recruitment processes. Lastly, there’s something for everyone with the launch of the Environment Agency’s new Portal to report wrong doing for water company employees. Afterall, it’s April showers time!

• New Law: Summary of Key Employment Law Changes from April 2024
• Holiday Entitlement: Changes from April for Irregular Hours Workers and Part-year Workers
• ACAS: Revised Code of Practice on Requests for Flexible Working Published
• Discrimination: EHRC Publishes Updates to Pregnancy and Maternity Discrimination Toolkits
• Recruitment: DSIT Publishes Guidance on Responsible Use of AI in Recruitment
• Whistleblowing: The Environment Agency Launches Portal for its Workers to Report Wrongdoing

New Law: Summary of Key Employment Law Changes from April 2024

The following changes took effect from 1 April 2024:

• changes to the calculation of holiday pay for irregular hours workers and part-year workers;
• the national living wage and national minimum wage annual increase;
• removal of the exemption for live-in domestic workers (e.g. nannies and au pairs) from the national minimum wage; and
• minimum rates of remuneration for agricultural workers in Wales increase.

The following changes took effect from 6 April 2024:

• the right to request flexible working becomes a day one right and changes to requests for flexible working, including a revised ACAS Code of Practice;
• changes to paternity leave and pay;
• introduction of carer’s leave;
• extension of existing requirements that apply to employers when redundancy situations arise where an employee is on maternity, adoption or shared parental leave, so that those requirements can also apply during pregnancy and for a period of time after that leave has ended;
• amendments to employment tribunal rules on responses;
• increases to the tribunal compensation limits;
• increases to the Vento bands for making awards for injury to feelings;
• increase to the rate of Statutory Sick Pay (SSP);
• the weekly earnings limits and thresholds, used for determining liability to Class 1 NICs remain unchanged, including the lower earnings limit of £123 per week, below which employees are not entitled to SSP, Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP), Statutory Paternity Pay (SPP), Statutory Shared Parental Pay (SSPP) or Statutory Parental Bereavement Pay (SPBP);
• reduction in the Class 1 NIC main primary percentage from 10% to 8%;
• extension for a further year of the employer NICs relief for employers hiring qualifying veterans;
• a freeze to the rates of Van Benefit and Car and Van Fuel Benefit;
• increases to the threshold and rate for high income child benefit charge;
• the lifetime allowance on tax-relieved pensions savings is replaced with a lump sum allowance and a lump sum and death benefit allowance.

The following changes took effect from 7 April 2024:

• the rates of SMP, SPP, SAP, SSPP and SPBP are increased.

The following changes took effect from 8 April 2024:

• the rate of maternity allowance (MA) is increased.

For some of the most common rates see our Employment Law Facts and Figures 2024.

Changes to Rights to Leave from 6 April:

Changes have been made by the Paternity Leave (Amendment) Regulations 2024, SI 2024/329 and the Statutory Paternity Pay (Amendment) Regulations 2024, SI 2024/121 to the statutory right to paternity leave and pay, where the expected week of childbirth begins after 6 April 2024 or, in the case of adoption, the expected date of placement is on or after that date. The main changes are that:

• the two-week paternity leave entitlement can be taken in two non-consecutive blocks of one week, rather than just as a block of either one week or two weeks, and
• leave can be taken at any time in the first year after birth or placement for adoption, rather than just in the first eight weeks.

The Employment Rights Act 1996, ss 80J-80N and the Carer’s Leave Regulations 2024, SI 2024/251, give eligible employees the ‘day one’ right to unpaid time off to provide or arrange care for a dependant with a long-term care need. Carers may take up to one week of unpaid leave in a 12-month rolling period.

Enhanced protection from redundancy is available to employees during pregnancy, maternity leave, adoption leave and shared parental leave, and for an additional period after those types of statutory family-related leave.

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Holiday Entitlement: Changes from April for Irregular hours workers and part-year workers

For leave years beginning on or after 1 April 2024, the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (Amendment Regulations 2023), SI 2023/1426 amended the Working Time Regulations 1998, SI 1998/1833 to introduce (among other things) different provisions for calculating holiday entitlement and pay in respect of irregular hours workers and part-year workers.

In summary:

• a different method for calculating how much holiday entitlement has been accrued, namely it is at 12.07% of the hours worked in the pay period;
• there is just one pot of holiday entitlement, rather than the usual distinction for other workers, i.e. the four weeks’ basic entitlement and 1.6 weeks’ additional entitlement. This has implications for how much leave can potentially be carried-over and which payments are to be taken into account when calculating holiday pay.
• the employer has the option of paying rolled-up holiday (which it is not able to do in respect of other workers).

The main reason for these amendments was to reverse the effect of the Supreme Court decision in Harpur Trust v Brazel, which had resulted in some anomalies whereby part-year or irregular hours workers could end up with a more generous paid holiday entitlement than a year-round worker with normal hours who worked more hours over the year. A consultation was carried out by BEIS in January 2023 in order to simplify the assessment procedure, and this is the result.

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ACAS: Revised Code of Practice on Requests for Flexible Working published

On 6 April 2024 the revised Code of Practice on requests for flexible working (SI 2024/429), which has been issued by Advisory, Conciliation and Arbitration Service (ACAS) under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, came into effect.

It provides that the revised Code of Practice does not apply to applications for flexible working made under the Employment Rights Act 1996, s 80F which are made on or before 5 April 2024 except that any such application will be taken into account in determining whether an employee is prevented from making an application by section 80F(4) of that Act.

From 6 April 2024, the statutory right to request flexible working is amended so that:

• employees have the right to make a flexible working request from the first day of employment, thereby removing the need for any qualifying period of service
• employees may make two flexible working requests, rather than one, during any period of 12 months
• employees no longer have to explain the effect of the proposed change on the employer’s business as part of their request
• the employer must consult the employee before deciding not to accept a request
• the decision period for an employer to respond to a request for flexible working is reduced from three, to two, months

See the revised ACAS Code of Practice on Flexible Working here. This replaces the previous version which was published in June 2014.

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Discrimination: EHRC Publishes Updates to Pregnancy and Maternity Discrimination Toolkits

The Equality and Human Rights Commission (EHRC) has published updates to its guidance on pregnancy and maternity discrimination at work. The changes to the various toolkits have been made to reflect a number of changes which have come into effect in April 2024.

The changes to the toolkits include:

• the extension of protection from redundancy to include pregnant women and those on maternity, adoption and shared parental leave;
• offering suitable alternative employment to pregnant women and those on maternity, adoption and shared parental leave in a redundancy situation, including giving priority over other employees regarding alternative roles;
• providing the right to request flexible working from the first day of employment;
• increasing flexibility in how paternity leave can be taken.

See these links for more information:

• Maternity, paternity, adoption or shared parental leave and pay
• Pregnancy and maternity
• Pregnancy, adoption and maternity: Return to work

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Recruitment: DSIT publishes guidance on responsible use of AI in recruitment

The Department for Science, Innovation and Technology (DSIT) have published ‘Responsible AI in Recruitment’ guidance. It centres on ensuring good practice for the procurement and deployment of AI systems for HR and recruitment. It specifically focuses on technologies used in the hiring process, such as sourcing, screening, interview and selection. AI can automate and simplify these processes. However, it also highlights risks such as perpetuating existing biases, digital exclusion, and discriminatory job advertising and targeting.

Read the full guidance here.

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Whistleblowing: The Environment Agency launches portal for its workers to report wrongdoing

The Environment Agency (EA) has launched a whistleblowing portal, allowing water industry workers to report serious environmental wrongdoing by their water companies. Internal water company whistleblowers are encouraged to alert the EA to any concerns, which will then be assessed by the regulator’s expert intelligence teams. Reporters’ identities will be protected and treated as confidential sources. The portal builds on the whistleblowing reports that the EA can already receive under the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, SI 2017/507.

Guidance on the portal can be found here.

EA employees can email reports to whistleblowing@environment-agency.gov.uk. Non-employees of the EA can send reports by mailing raiseaconcern@environment-agency.gov.uk.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Employment Law

Dixcart Legal provides you with a summary of Employment Law Facts and Figures for 2024.

For more information, please contact: Anne-Marie Pavitt.