Credit Management issue April 2021

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 / April 2021 / PAGE 57