10 Jul

Extending discrimination protection

This article was written by Rebecca Thornley-Gibson, Employment Partner, Ince Gordon Dadds LLP for ABTA's seventh edition of Travel Law Today which can be downloaded here: abta.com/travellawtoday

The Government has recently published two consultation documents aimed at minimising sex and maternity discrimination by enhancing existing protections for workers. The first deals with proposed measures to prevent the misuse of confidentiality clauses in connection with workplace harassment or discrimination. The second covers the extension of redundancy protection for women and new parents.

These consultations address a need identified by the Women and Equalities Select Committee (WEC) appointed by the House of Commons to consider further protections for workers.

Confidentiality/NDA clauses
Following an inquiry into workplace sexual harassment, the WEC published a report calling for reforms to be made in the use of confidentiality clauses or NDAs. Concern had been raised that such clauses were being used inappropriately, often in settlement agreements when employment ended, to prevent disclosures about alleged unlawful treatment.

In addition to the WEC report, the Solicitors Regulation Authority (SRA) had already issued a warning notice to lawyers in March 2018 on the inappropriate use of NDAs for their clients. Lawyers, when drafting or advising on NDAs and/or settlement agreements, must abide by the SRA notice or risk facing a breach of their regulatory obligations. The notice states: ‘NDAs or other settlement terms must not stipulate, and the person expected to agree to the NDA must not be given the impression that reporting or disclosure as set out above is prohibited. It may be appropriate for the NDA itself to be clear about what disclosures are not prohibited by the NDA’.

The law already provides protection for workers to report wrongdoing. Any provision in any agreement between an employer and worker that seeks to stop a worker from making a protected disclosure, which would include a sexual harassment allegation, is void. However, the Government is considering the need for further legislation and on 4 March 2019 published a consultation on the following WEC recommendations:

  • Standard, statutory confidentiality wording should be introduced setting out the meaning, effect and limits of confidentiality clauses.
  • The definition of ‘protected disclosures’ (ie, whistleblowing disclosures) should be widened to include disclosures of sexual harassment to the police, all regulators and to any court or tribunal.
  • Employers and/or their professional advisers should be prohibited from seeking to prevent or limit an employee from making whistleblowing disclosures or reporting a criminal offence.
  • Lawyers should be disciplined if they advise employers to use provisions that can reasonably be regarded as unenforceable.

The lawyer disciplinary cases have already started with 13 cases under review by the SRA including an employment lawyer involved in drafting NDAs in the Weinstein harassment cases in the UK.

Redundancy protection for women and new parents
Consultation on extending redundancy protection for women and new parents was published on 25 January 2019. The consultation was a dual response to WEC concerns raised about detriments suffered by women who had taken time off for maternity leave and also as part of its commitment to publish a consultation following the Taylor Review.

Existing protection is provided by the Equality Act and Maternity and Paternity Leave etc Regulations 1999, which aim to prevent sex discrimination and pregnancy and maternity discrimination. The statutory protection in respect of pregnancy and maternity discrimination in redundancy situations includes a protection that, before making an employee on maternity leave redundant, employers must offer them a suitable alternative vacancy where one is available. Therefore the woman has priority over other employees who are at risk of redundancy.

There are three main strands to the consultation in respect of the extension of redundancy protections:

  • Extending redundancy protection for new mothers for six months after their return to work from maternity leave to enable newly returned mothers to have the same protection as those on maternity leave
  • Protection to begin from the date the employer is given written notice of the pregnancy
  • Extension of protection to other groups or employees taking time off for adoption, shared parental leave and longer periods of parental leave.

The following example demonstrates the extent of protection in the event the above is implemented:

Angela notifies her employer she is pregnant on 1 May 2019. She works until 31 December 2019 when she commences her maternity leave and has her baby on 31 January 2020. She then takes 12 months’ maternity leave, followed by four weeks’ parental leave and returns to work on 1 February 2021. Her employer must offer her any suitable alternative role in priority to others until 1 July 2021 by reason of her extended redundancy protection.

The above scenario would require the employer to give priority in respect of any suitable alternative vacancies to Angela in any redundancy situations from 1 May 2019 until 1 July 2021.

Extending protections may be welcomed by many employees. Employers, however, may be concerned that: employees without the same protections may be resentful of the priority treatment; reorganisations where alternative roles need to be kept open for those on maternity leave and covered by interim measures may be more difficult; and complications may arise with other groups sharing similar redundancy protections.
Both consultations have now ended with decisions on the extent of how existing legislation should be supplemented expected during the summer.