B A K E R I N G . G L O B A L G L O B A L O U T L O O K Eastern Europe & Central Asia Economic Outlook January <strong>2021</strong> BAKERING.GLOBAL Advancing the credit profession / www.cicm.com / <strong>April</strong> <strong>2021</strong> / PAGE 56
HR MATTERS The age-old argument Data, discrimination, and employers’ responsibility to support victims of domestic abuse. IS an employer bound to check sources of information used by employees? The Court of Appeal thought so when it dismissed an appeal against a High Court decision. The case involved Travel Counsellors Limited (TCL) which had breached its confidentiality obligations by using client information brought by exemployees of a competitor, Trailfinders Limited. Following the departure of a number of Trailfinders employees to TCL, Trailfinders alleged that they took with them names, contact details and other information about clients from a Trailfinders computer. In addition to pursuing claims against the employees, AUTHOR – Gareth Edwards Trailfinders argued that TCL had acted in breach of an equitable obligation of confidence. TCL did not supply new franchisees with potential customers and so travel consultants were expected, and positively encouraged, to bring their customer contact list with them. TCL then added the client information brought by the new travel consultants to its computer. The High Court said that a reasonable person in the position of TCL’s CEO would have been aware that this new information would have been taken from the previous employer and it would be regarded as confidential. By receiving such information, TCL acted in breach of an equitable obligation of confidence. TCL appealed, arguing that an equitable obligation of confidence would only arise if the recipient knew, or had notice that the information was confidential when objectively assessed by a reasonable person. The Court of Appeal considered whether a reasonable person would have made enquiries to determine whether the information, or some of it, may be confidential to another; it noted that if a reasonable person would have, then an obligation of confidentiality arises. So, when dealing with information provided by new employees, it is important for employers to find out the source and to make the relevant enquiries in order to avoid a potential breach of confidence claim. Discrimination in a recruitment process IN Clements v Guy's and St Thomas' NHS Foundation Trust, a tribunal held that a middle-aged man who performed best at interview, who hadn’t been appointed, was discriminated against. Mr Clements, a 50-year-old man, had applied for a project manager role at the trust which involved developing new IT systems. All candidates selected for interview had to prepare a short presentation and were informed that points would be awarded for ‘original, fun yet thoughtful and punchy presentations’. Clements had the highest scoring presentation, although another candidate (a younger female) came a close second. THE Government has published an open letter to employers outlining how they need to provide support to victims of domestic abuse. The letter outlines how employers need to take practical steps to raise awareness of those who are suffering from domestic abuse and procedures should be in place to enable warning signs to be noticed, and to enable workers to access the support they need. The Department for Business, Energy and Industrial Strategy has published a report about this, and ACAS has updated its working from home during the coronavirus pandemic guidance to include a section on domestic violence and Following interview, the candidates were introduced to members of the team they would be working with. Clements’ feedback concentrated on how he was different to the outgoing post holder (another younger female) and that others might find it difficult to give instructions to a more mature person. The tribunal heard evidence that the team members were predominantly female and younger than Clements. It also heard evidence about the views of some of the team as portrayed on social media. The tribunal found that feedback from the team, despite not being part of the formal interview process, was given Employers and domestic abuse considerable weight by the selection panel. It was also not objective. The selection panel selected the younger female candidate for a number of subjective reasons including Clements' having an 11-year-old daughter and because it considered it better to employ someone at an early stage of their career who then might go to develop their career over a longer period of time elsewhere within the NHS. This was communicated to Clements. The tribunal ordered the trust to pay Clements £5,969.86 by way of injury to feelings along with compensation of £1,610.28. abuse. In light of the Government’s report and updated ACAS guidance, employers are advised to review their home working polices to ensure that there are appropriate measures in place to support victims of domestic abuse. Employers should also consider developing specific domestic abuse policies. The report recommends appointing Domestic Abuse Workplace Champions, who are trained to spot the potential signs of domestic abuse and to act as a confidante and signposting support services where appropriate. Gareth Edwards is a partner in the employment team at VWV.gedwards@vwv.co.uk Advancing the credit profession / www.cicm.com / <strong>April</strong> <strong>2021</strong> / PAGE 57
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