CM May 2020

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HR MATTERS Indecent Disclosure New guidance on NDAs, compulsory retirement, and holidays. AUTHOR – Gareth Edwards ACAS has published new guidance to help employers and workers understand what NDAs are and to discourage their misuse. This guidance follows recent media coverage around the use of non-disclosure agreements (NDAs) in cases that involve workplace sexual harassment or discrimination. Typically, employers might use NDAs to stop an employee or worker sharing information. However, NDAs cannot be used to stop anyone whistleblowing or reporting a crime to the police. ACAS recommends that NDAs should not be used in a number of instances such as; seeing if another resolution can be used, to stop someone reporting harassment, discrimination or sexual harassment, to cover up inappropriate behaviour or misconduct, to avoid addressing disputes or problems in the workplace, or to mislead someone. The guidance says that NDAs can be used to keep an organisation’s information confidential, when an employer needs protection for important business information, to keep certain things that the employee knows about the workplace or business confidential, or to prevent an employee making derogatory statements about the employer or other employees. The government has indicated its intention to legislate in this area, particularly to tackle the misuse of NDAs in the workplace such as to cover up sexual harassment, discrimination and assault. Employers are well advised to ensure their current use of NDAs complies with best practice. Typically, employers might use NDAs to stop an employee or worker sharing information. However, NDAs cannot be used to stop anyone whistleblowing or reporting a crime to the police. Advancing the credit profession / www.cicm.com / May 2020 / PAGE 42
HR MATTERS AUTHOR – Gareth Edwards Compulsory Retirement unjustified In this case the University was successful in showing it had legitimate aims for the EJRA policy, for example that it allows for younger and more diverse academics to progress in their careers by creating new job vacancies. MEANWHILE, in Ewart v University of Oxford, an Employment Tribunal (ET) has held that Oxford University’s compulsory retirement age policy could not be objectively justified as it was not a proportionate means of achieving a legitimate aim. The University had therefore unfairly dismissed Professor Ewart and directly discriminated against him on the grounds of his age. Since 2011 the Oxford University had in place an Employer-Justified Retirement Age Policy (EJRA) policy that required academics to retire before their 69th birthday. Ewart was being forced into retirement and brought a successful claim against the University for age discrimination and unfair dismissal in a case that has highlighted the risks for employers who set a retirement age for employees. Unlike other forms of direct discrimination, direct age discrimination can be justified on the basis that it is a proportionate means of achieving a legitimate aim (and goes no further than necessary to achieve that legitimate aim). In this case the University was successful in showing it had legitimate aims for the EJRA policy, for example that it allows for younger and more diverse academics to progress in their careers by creating new job vacancies. In fact, the University had successfully justified the policy in a different age discrimination case. However, in this case, the ET held that the University had not shown sufficient justification for the policy's discriminatory effect with regards to its aims. For instance, Ewart provided statistical evidence that suggested that the EJRA only created two- to four percent more vacancies than would have otherwise arisen had the policy not been in place. This was found to be trivial in comparison with the discriminatory effect of terminating someone's employment solely due to their age. This case highlights the difficulties in justifying a contractual retirement age, which may also be reflected in the fact that Oxford is now one of only two Universities in the UK to maintain one. Holiday pay reference period set to increase CHANGING tack completely, the holiday pay reference period is increasing. Currently, when employers calculate holiday pay for those staff without fixed working hours, for example casual workers, the current reference period is the last 12 worked weeks. But from 6 April 2020, the holiday pay reference period is increasing so that the last 52 worked weeks will need to be taken into account, for those staff who have at least 52 weeks continuous service. The new reference period will operate in a similar way to the current 12-week period. Employers will need to look back across the last 52 weeks that the staff member has actually worked and weeks in which no pay was received will not be counted. Where there are fewer than 52 worked weeks to take into account, the reference period is reduced to the lower number of weeks worked and paid overtime (if contractually obliged or voluntary but sufficiently regular and considered to be normal pay) work during the reference period must also be included in the calculation. The 52-week reference period will doubtless provide a more accurate calculation for holiday pay as it will be less exposed to short term variations in pay. Gareth Edwards is a partner in the employment team at VWV. gedwards@vwv.co.uk. Advancing the credit profession / www.cicm.com / May 2020 / PAGE 43
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