171: And finally a look forward to what’s happening in employment news for June 2019

Acas (The Advisory, Conciliation and Arbitration Service) has published new guidance for employers on how to deal with neurodiversity in the workplace. It is estimated that around 15% of people in the UK are neurodivergent, meaning that the brain functions, learns and processes information differently. This includes conditions such as attention deficit disorders, autism, dyslexia and dyspraxia. The guidance notes that many types of neurodiversity will be a disability under the Equality Act 2010. Acas stresses that there are many positive attributes associated with neurodiversity, including creativity, innovation, lateral thinking and bringing a different perspective into the workplace. Its guidance sets out advice for employers on changing the workplace to better support neurodiversity, and for managers on how to manage neurodiversity. For example, managers are encouraged to identify what practical support employees may need on a day-to-day basis, and to build good working relationships so that issues and misunderstandings can be dealt with quickly. There is also a list of experts who can be contacted about specific forms of neurodivergence and about how to implement reasonable adjustments.

In December 2018, as part of its response to a Women and Equalities Select Committee report, the Government announced that it would consult on the regulation of non-disclosure agreements. The Government has now published a consultation on proposals to prevent the misuse of confidentiality clauses where there has been workplace harassment or discrimination. If these measures are implemented, employers may need to make changes to employment particulars and settlement agreements. A key proposal in the consultation is the introduction of legislation to clarify that an employee’s right to make disclosures is preserved in certain circumstances, for example, as regards the police, doctors or therapists. Views are sought on whether this should be achieved by using prescribed wording. The Government is also considering whether to introduce a requirement for an employee to receive specific legal advice on the meaning of a confidentiality clause in a settlement agreement, including an explanation of its limits and what can be disclosed. Failure to comply would render the confidentiality clause void. The Government also proposes to require employers to clarify the limits of confidentiality clauses where they are included in employment particulars and contracts, for example, by explaining that disclosures can still be made under whistleblowing legislation. Failure to include this information could lead to a claim for compensation in the Employment Tribunal. The consultation closed on 29 April 2019.

The European Parliament has formally approved the text of a whistleblowing directive which will introduce new EU-wide standards to protect whistleblowers in a wide range of areas including public procurement, public health, consumer and data protection and transport safety. It will come into force two years after approval by EU ministers, probably in May 2021. The UK already has some of the most comprehensive protection for whistleblowers in the EU, but some changes would be required under the new directive if it needs to be adopted as part of any Brexit deal. For example, the directive expands protection to cover job applicants, volunteers, non-executive directors and self-employed workers. It would also require all organisations with more than 50 employees to introduce internal reporting channels and procedures, with provision for feedback and ensuring confidentiality.

The Supreme Court has granted Morrisons permission to appeal the Court of Appeal’s decision that it was vicariously liable for the actions of a senior internal auditor who disclosed the personal data of around 100,000 of its employees, including names, addresses and bank account details. If Morrisons loses this final appeal, it will be liable to pay compensation to around 5000 former and current employees, although the extent of any financial loss is unclear. Morrisons argues that it should not be held liable for the rogue actions of a disgruntled employee who was jailed for eight years after being convicted of fraud, disclosing personal data and securing unauthorised access to computer material. However, the lower courts have so far upheld the employees’ claim because his actions were so closely linked to the job he was employed to do.

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