Government may support ban on NDAs for sexual harassment allegations
Non-disclosure agreements (NDAs) are often used to settle disputes quietly. In such agreements, the accused party gets assurance that the allegations won’t be made public or repeated. In return, the accuser typically receives financial compensation. In workplace disputes, NDAs are often part of broader settlement agreements.
However, some complaints, like whistleblowing or reporting crimes, cannot be silenced by NDAs. Until now, in the UK, NDAs could still be used to cover up sexual harassment allegations. This has sparked debate, with many calling for a ban on such practices. Countries like Ireland, Canada and the USA have already introduced similar bans.
Recently, a Liberal Democrat MP proposed an amendment to the Employment Rights Bill (ERB) to make NDAs covering sexual harassment void. The government rejected this in January but acknowledged concerns about NDAs being misused to silence victims of harassment, discrimination and bullying. They promised to review the issue.
The government might have already, at least partially, introduced its own solution. The ERB includes a provision adding sexual harassment to the list of whistleblowing protections. If enacted, sexual harassment allegations could no longer be silenced using NDAs as they would be protected by the wider ban on using NDAs in whistleblowing situations. Whether the government will go further and have an outright ban on NDAs for sexual harassment is still uncertain.
Tackling employee theft – steps for employers to protect their business
Employee theft ranges from taking office supplies to misusing company resources for personal benefit. Theft typically involves physically taking something without permission.
Theft should be included as an example of gross misconduct in any disciplinary policy, making employees aware of the seriousness of the offence.
Recognising theft in the workplace
Common examples include:
- Stealing cash or property.
- Unauthorised use of company resources, such as giving family discounts.
- Using a company card for personal expenses.
Watch for red flags like discrepancies in inventory, unexplained variances in payroll, or tips from colleagues through whistleblowing procedures.
Handling theft allegations
- Investigate thoroughly: Gather evidence, such as financial records or CCTV footage. Consider hiring a forensic expert to preserve digital evidence.
- Follow due process: Conduct a fair investigation and disciplinary hearing. Ensure the accused employee has a chance to explain.
- Consider reporting to police: Depending on the severity, report theft to law enforcement, particularly for regulated industries.
Employer guilty of harassment for failing to provide private space for breastfeeding mother
Harassment happens when an employee faces unwanted actions that violate their dignity or create a hostile or offensive environment. For it to qualify as harassment, it must be connected to a protected characteristic.
In the case of Gibbins v Cardiff and Vale University Local Health Board, an employer failed to provide a breastfeeding employee with a lockable room to express milk, leading to a finding of sex-related harassment.
When the employee returned to work after having her first child, the employer did not provide a room with a lock. A colleague walked in on her while she was expressing milk. The employer suggested she prop a chair against the door and use a “do not disturb” sign instead. Although the employer apologised and eventually provided a lock, the issue arose again after her second child, when she was told the locked space would only be available at certain times.
The tribunal ruled that the employer’s actions were related to her sex, as they involved breastfeeding. The employee felt anxious, worried and belittled due to the lack of proper facilities. Her claim of sex-related harassment was successful.
This case highlights the importance of employers ensuring that breastfeeding employees have access to private, secure spaces to express milk. Aside from the clear legal risk of failing to do so, there is also the wider employee relations issue in play of fostering a supportive workplace environment.
10 things employers should know about notice periods and notice pay
Employment contracts can generally be ended by either party serving notice to terminate them. How much notice is required is generally set out in the contract of employment. If the contract is silent, then statute steps in. Here are 10 things all employers should know about notice periods and pay. Employers must understand the rules to avoid disputes.
- Statutory minimum notice
The Employment Rights Act 1996 (s86) sets minimum notice periods for employees:
- Less than 1 month’s service: No notice required.
- 1 month – 2 years’ service: 1 week’s notice.
- 2 years or more: 1 week per year of service, up to 12 weeks after 12 years.
Employees must give 1 week’s notice after one month of service. Longer contractual notice periods override statutory minimums.
- Notice pay during sickness absence
Employees under statutory minimum notice receive full pay during their notice period, even if they are off sick. For longer contractual notice periods, sick pay terms (e.g., SSP or company sick pay) apply.
- Fixed-term contracts
Fixed-term contracts end on a specified date or event. If terminated early, notice provisions (e.g. break clauses) in the contract will apply.
- Contractual notice and termination
Employment contracts should ideally explicitly define notice periods, including:
- Length of notice for both parties.
- Rights to pay in lieu of notice (PILON).
- Garden leave provisions.
- Termination without notice for gross misconduct.
- Pay in lieu of notice (PILON) clauses
A well-drafted PILON clause should state that payment in lieu is not a right, it is an option available to the employer. It should specify what is included in the payment (for example, whether basic salary only is payable or whether other benefits will also be paid in lieu). If no PILON clause exists, payments will be a technical breach of contract and will need to include a sum equivalent to contractual benefits and other payments such as bonus as well as basic pay.
- Garden leave
Garden leave keeps employees on payroll but away from work during their notice period, ensuring control over their activities and preserving business interests. A contractual clause is needed to be able to do this lawfully.
- Dismissal without notice
Employees committing gross misconduct may be dismissed without notice. This requires evidence of a fundamental breach of contract.
- Communicating notice
Notice should be communicated clearly and, ideally, in writing. Best practice is to use traceable forms like email to avoid disputes. Contracts of employment often include clauses setting out how notice must be given – this should be checked before any correspondence is sent.
- Legal claims and underpayments
Failing to pay notice correctly may lead to claims for wrongful dismissal or unlawful deductions. Employees can seek damages via employment tribunals or courts, depending on the claim’s value and complexity.
- Special cases
In rare instances, courts may prevent employers giving notice to terminate contracts where it would cause significant harm to the employee, such as loss of key benefits (as happened in Aspden v Webbs Poultry, where an employer was prevented from giving notice when, in so doing, it would have removed an employee’s entitlement to permanent health insurance).
Stricter rules for employers passing on sponsor licence costs
UK employers need worker sponsor licences to hire non-settled workers. There are several different worker routes under which an employee can be ‘sponsored’ including Skilled Worker, Global Business Mobility, Creative Person Worker and International Sportsman. These licences can be expensive, costing thousands of pounds, plus an additional £239 fee for a Certificate of Sponsorship.
To manage these costs, employers often ask migrant workers to repay some of the expenses if they leave the job within a set period. This helps employers protect their investment by encouraging workers to stay longer.
However, since 31 December 2024, new rules prohibit employers from recovering certain costs from sponsored workers. Specifically, sponsors can no longer recoup:
- Any part of the Certificate of Sponsorship fee (for certificates assigned on or after 31 December 2024); and
- Skilled Worker sponsor licence fees or related administrative costs.
Employers who break these rules risk losing their sponsor licence.
To comply, employers should review and update any agreements that include repayment provisions for immigration costs, ensuring they don’t violate the new restrictions.
WhatsApp at work: More trouble than it’s worth?
In recent years, it is a matter of fact that workplace communications have become more ‘remote’ in nature. Many businesses have embraced social media both as a marketing tool (think Instagram and LinkedIn) and as a means of instant and direct communication with their workforce (think WhatsApp).
WhatsApp’s accessibility and user-friendly design make it an appealing option for professionals but using it in a work setting has both advantages and disadvantages. Businesses are increasingly realising it might create more problems than it solves. According to a report by the BBC, NatWest recently banned its staff from using Whatsapp on work issued devices.
Here, we explore three key benefits and drawbacks of WhatsApp in the workplace.
Pros:
- Ease of communication
WhatsApp simplifies workplace communication by offering instant messaging, voice notes, and video calls. Its real-time connectivity ensures quick decision-making and facilitates collaboration, particularly for remote or hybrid teams spread across different locations. - Group collaboration
With the ability to create and manage groups, WhatsApp fosters teamwork by allowing members to share updates, documents, and ideas in one central space. This can streamline workflows and reduce the need for lengthy email threads or meetings. - Cost-effective and accessible
WhatsApp is free to use and works on nearly any smartphone, making it a cost-effective option for businesses. Additionally, its widespread familiarity ensures minimal training is required for employees to adopt it.
Cons:
- Retention of evidence and disappearing messages
The use of disappearing messages and lack of robust archiving can create compliance issues for businesses that require proper documentation of workplace communications. This was a major driver behind NatWest, operating in the heavily regulated banking sector, taking the decision to ban WhatsApp. - Risk of harassment
The informal nature of WhatsApp can blur professional boundaries, creating a platform where inappropriate comments or harassment might occur, potentially leading to legal and reputational risks. The use of WhatsApp messages as evidence in employment tribunal proceedings has reportedly almost tripled since 2019. In one tribunal case, an employee was awarded a six-figure sum in compensation after being removed from a work WhatsApp group whilst on sick leave. In another case, two employees successfully claimed race discrimination after discovering racially abusive messages on a work WhatsApp group. - Misinterpretation of tone
Text-based communication lacks the nuance of face-to-face interactions, making it easy for messages to be misinterpreted. This can lead to misunderstandings or workplace tensions. WhatsApp messages are also easy to send, so people often give less thought to their content or timing.
If a business decides that the benefits of WhatsApp outweigh the risks associated with its use, then it is important the consideration is given to using it safely. Clear guidelines for acceptable posting and language, a requirement to disable any disappearing messages function, a ban on messages being sent out of office hours, and training which emphasises the potential impact of inappropriate messaging can all help to reduce the risks.
Campaign to extend Bereavement Leave to miscarriage losses before 24 weeks
Since April 2010, employees in the UK have had the right to two weeks of parental bereavement leave and pay after:
- The death of a child under 18.
- A stillbirth after 24 weeks of pregnancy.
- An abortion after 24 weeks (in rare cases where the mother’s life is at risk, or the baby has a severe disability).
This leave can be taken within 56 weeks of the loss and is paid at the same rate as Statutory Maternity Pay (£184.03 per week).
In December, the Miscarriage Association launched the Leave for Every Loss campaign, calling for changes to the law to allow bereavement leave for women and their partners who experience pregnancy loss before 24 weeks. Currently, these losses are not covered by bereavement leave, leaving affected employees to rely on sick leave or their employer’s goodwill.
The campaign has gained support from organizations like the TUC and Co-op, as well as the Women and Equalities Committee (WEC). The WEC has proposed amending the Employment Rights Bill to extend bereavement leave to pre-24-week pregnancy losses. While the current bill doesn’t include this specific proposal, it does suggest expanding bereavement leave to cover the loss of “loved ones,” which could potentially include early pregnancy losses.
And finally, think of the Oscars or Golden Globes. Celebrities air-kiss on red carpets as an almost obligatory gesture, signalling mutual admiration while avoiding lipstick smears. It is often an exaggerated way of saying ‘I’m chic, not creepy.’ It’s not about romance; it’s about social protocol and avoiding an actual kiss! But could it be regarded as sexual harassment? Not according to the employment tribunal in the recent case of Chen v Cut Your Wolf Loose. The Claimant was a bar-worker at the Respondent’s whisky bar. She alleged that the Respondent’s general manager had kissed her on the neck on two occasions after walking her home from work. She brought a claim of sexual harassment. The general manager alleged that these had been ‘air-kisses’ only. The tribunal preferred the evidence of the general manager and held that an air kiss is not unwanted conduct of a sexual nature. Even if it was sexual, it was not reasonable for it to have the effect of harassing the Claimant. This case serves as a reminder that, in cases of harassment, when deciding whether conduct has had the effect of harassing the employee, a tribunal must take the following three things into account:
- The employee’s perception
- The other circumstances of the case
- Whether it is reasonable for the conduct to have that effect
In this case, the third of these was not established. It was not reasonable for an air-kiss to have the effect of harassing the Claimant.