Employment Law Coffee Break | Spotting the signs of misconduct, Covid-19 update and a warning from the EAT to ensure equality training is effective

Protecting your business: Spotting the signs of employee misconduct

Following our podcast last week with Anna Elliott, employment partner, on the latest developments around post-termination restrictions in employment contracts, this week we talk to Peter Sheppard, a partner in our disputes and resolution team, who discusses the red flags that an employee, individually or as part of a team, may be preparing to leave your business. Next week, Peter will guide us through the legal and other steps that can be taken in these circumstances.

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As Anna discussed last week, the government is currently consulting on employment post-termination restrictions, with a specific focus on non-competes. If you would like to contribute to this consultation, please contact your usual Osborne Clarke contact.

Covid-19 update

Whilst we wait for the prime minister's announcement on 22 February 2021 on the road out of the current lockdown, and for the budget on 3 March 2021, in addition to the widely publicised new rules around international travel and quarantine, employers should note the following developments:

• The government has expanded its 30 minute lateral flow testing to employers with 50 or more employees (previously 250) for employees who are unable to work from home in line with the latest guidance and who are asymptomatic. As part of the drive to encourage testing, the government has launched a new online portal and published guidance to support employers. The Information Commissioner's Office has also published guidance on the data protection implications. Employers will need to take care where an employee refuses to take a test and seek legal advice on the employment implications; whether or not it is appropriate to take action in these circumstances will depend on a number of factors. In the meantime, employers must continue to ensure that regardless of the ability to test, the health and safety risk assessment is kept under regular review and the workplace remains Covid-Secure.
• It has been reported that the government is looking to suspend for a second year the legal obligation on employers with 250-plus employees to report on their gender pay gap this April. Whilst we await clarification, employers should continue to operate on the basis that reporting will be required. Indeed, these reports come amid concerns published in a report from the Women's and Equality Committee that to do so would risk further entrenching existing gender inequalities and that "given the high number of women who have been furloughed or worked reduced hours due to caring responsibilities and the evidence of continuing gender inequality in other areas, this should have been a time for more – not less – transparency".  The report sets out 20 recommendations for change, including: calling on the government to consider the equality impact of its policies (driven by concerns over the impact of Coronavirus Job Retention Scheme and Self Employed Income Scheme); extending redundancy protection to pregnant women and new mothers; reviewing childcare provision to support those working and those who are job seeking or retraining; and reinstating gender pay gap reporting, expanded to include reporting on parental leave policies, ethnicity and disability.

• As the UK vaccination roll out continues, the ICO has issued some short guidance on the data protection implications. Osborne Clarke will be looking at the practical and legal implications around vaccinations for businesses in the first of our Eating Compliance for Breakfast series of webinars for 2021 on 3 March. Please do speak to your usual Osborne Clarke contact for more details. This week we have also been speaking to Jerome Scapoli, a partner in our Paris office, on the vaccination roll out in France and considerations for employers.

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Is your equality and anti-harassment training "thorough" and effective?

A recent EAT decision reminds employers of the importance in ensuring that their equality and diversity programmes are effective in combatting harassment, including "thorough and forcefully presented training", refreshed at appropriate intervals.

An employer can defend a discrimination claim where it can demonstrate that it has taken "all reasonable steps" to prevent the employee from doing "that thing" or "anything of that description" (our emphasis). In this case, the employer pointed to its policy (updated in 2016) and training (delivered in 2015) when confronted with a claim of racial harassment by a former employee (the allegations related to comments made in 2017). The policy was however found to be "unimpressive" and the training "clearly stale" – indeed, the other employees, including managers, who had heard the racial comments, did not report or seemingly know how to deal with the potentially unlawful behaviour.  A reasonable step here would have been for the training to be refreshed.

The EAT decision reflects recent EHRC guidance that policies "should be monitored and their success regularly reviewed" and training should be "refreshed at regular intervals"; this guidance is expected to form the basis of the awaited new statutory code of practice. However, as the EHRC guidance demonstrates, policies and training are likely to be just part of the picture and for many employers more will be needed (although an ET will consider factors such as the likelihood of a step being effective, its cost and how practical it is to implement when determining the all reasonable steps defence).

Employers should now take the opportunity to review their policies, training and other resources for combatting harassment at work in light of the EHRC's recommendations, particularly given the impact of Covid-19 on working practices.  Osborne Clarke can provide a comprehensive training package for your staff and managers, your HR team and strategic considerations for your board which all help to support your business in creating the best working environment for everyone.