UK: Employment Essentials: Top 5 Lessons From July 2019

We started July with an important and rare Supreme Court judgment on post-termination restrictive covenants, Tillman v Egon Zehnder Ltd. The Supreme Court provided clarity on what is "an interest" in a competitor and to what extent a poorly drafted restrictive covenant clause can be saved by the so-called "blue pencil". For more on this significant and rare Supreme Court judgment overruling some 99 year old case law, please see our alert Post-termination restrictions: the Supreme Court reinvigorates the blue pencil test.

Having covered this important judgment as a sneak peek in last month's Employment Essentials, we have picked a fresh five for July from the month's judgments and the plethora of announced proposed future legislation changes announced in the final days of Theresa May's premiership.

1. Disciplinary proceedings: covert recordings in the era of the smart phone

When an employee secretly records an internal meeting or disciplinary hearing with the employer, the general rule is that the recording of any parts of the meeting where the employee was present may be admissible before an employment tribunal if the tribunal believes it is relevant, but any covert recording of any private discussions of the employer's disciplinary panel will not be admissible on the grounds of public policy. The practice of covert recordings is distasteful, but does not necessarily render evidence obtained in that way inadmissible.

But is the act of making a covert recording inevitably gross misconduct on the part of the employee amounting to a breach of trust and confidence entitling the employer to dismiss them without notice?

Unsurprisingly given the broad test for unfair dismissal, the Employment Appeal Tribunal (EAT) in Phoenix House Ltd v Stockman, answered "it will depend upon an assessment of all the circumstances", but provided some helpful guidance on the relevant factors that should be taken into account in the era of the smart phone.

The EATbegan stating that in the past, when covert recordings were not straightforward to obtain, it might be assumed that the motive was to entrap the employer or otherwise gain an unfair advantage. However, it is no longer difficult or uncommon for employees to record meetings without saying so, as most people carry a mobile phone capable of making a recording. It remains good practice for parties to communicate an intention to record a meeting (and it would generally amount to misconduct not to do so), but it is relatively rare for covert recording to appear on a list of examples of gross misconduct in a disciplinary procedure. It cannot be said that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee. Recordings might take place for a variety of reasons: to keep a record, to protect the employee from a risk of misrepresentation, or to enable an employee to obtain subsequent legal advice.

So the starting point is that it will generally amount to misconduct for an employee not to inform the employer that a recording is being made, but it will not necessarily amount to gross misconduct. Whether making a secret recording will amount to a breach of the term of trust and confidence will depend on:

  1. what is recorded - is it confidential information?
  2. the purpose of the recording - entrapment or simply to assist recall?
  3. extent of the employee's blameworthiness - is the recording made in defiance of an instruction not to do so or has the employee lied about making a recording?
  4. any evidence of the attitude of the employer to such conduct - what does the disciplinary policy say? Does it address the issue?

In light of the last factor, employers may like to review their disciplinary policies and add covert recording at any time as an example of gross misconduct (if it is not already there).

One consideration which was not addressed in the judgment is the privacy or data protection rights of those recorded without their consent.

2. Equality law reforms: harassment, NDAs and pay equality

Sexual Harassment

On 11 July, the Government Equalities Office (GEO) launched a Consultation on Sexual Harassment in the Workplace.

This Consultation, which runs until 2 October, primarily focuses on sexual harassment, but equally applies to harassment related to age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation.

The proposals include:

  1. Introducing a duty to prevent harassment in the workplace and a revised Statutory Code of Practice.
  2. Re-introducing explicit protections against third party harassment.
  3. Extending protection to interns and volunteers.
  4. Extending time limits for bringing a tribunal claim

In regards to the proposed new preventative duty, the GEOsuggests employers will need to take "all reasonable steps" to prevent the harassment taking place, but just what will be considered "all reasonable steps" is not set out as yet. The re-invigorated Statutory Code of Practice on its way will hopefully fill in the needed detail. As regards the revised Statutory Code, the GEOhas promised "technical guidance" later this year with the final draft to be published sometime in 2020.

For the moment, employers should ensure they have robust anti-harassment policies and procedures in place. The policy and procedures should be kept under review to take account of the evolving legislative ad social landscape.

Confidentiality clauses

On 21 July 2019, the Department for Business, Energy & Industrial Strategy (BEIS) published 'Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination'. This was in response to its 4 March consultation, 'Confidentiality clauses: Consultation on measures to prevent misuse in situations of workplace harassment or discrimination' and to the Report of the Women and Equalities Committee Inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases published on 11 June. Both the Consultation ad Inquiry addressed measures to prevent the misuse of NDAs in situations of workplace harassment or discrimination.

The Government confirms it intends to:

  • Legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals;
  • Legislate so that the limitations of a confidentiality clause are clear to those signing them;
  • Legislate to improve independent legal advice available to an individual when signing a settlement agreement (not only on the nature of the confidentiality requirement but also the limitation of relevant clauses);
  • Produce guidance on drafting requirements for confidentiality clauses; and
  • Introduce "new enforcement measures" for confidentiality clauses that do not comply with legal requirements.

The suggestion that there should be a standard form of wording for all NDAs has been rejected. Nevertheless, new robust legislation limiting the potential scope of NDAs is on its way. As for timing, the Government simply states it "will legislate to implement the relevant commitments we are making in this response when Parliamentary time allows."

For now, when settling a harassment or whistleblowing claim in particular, great care and thought is needed as to the use and wording of NDAs in settlement agreements, as they carry a risk of potentially damaging adverse publicity.

Pay Equality

On 3 July 2019, the GEOpublished Gender equality at every stage: a roadmap for change which includes:

  • A planned review of the Gender Pay Gap (GPG) reporting metrics and consultation on any proposed changes by 2021 with a view to reduce the GPGat both a sector level as well as by individual employers; and
  • A review of the enforcement of equal pay legislation including assessing circumstances where mandatory equal pay audits could be appropriate and proportionate.

3. Parental rights law reforms: parental leave framework, neonatal leave, transparency & redundancy protection

On 19 July BEISpublished a Consultation Good Work Plan: Proposals to support families including the following proposals:

Parental leave framework

The Government is to carry out a review of the various forms of parental (in a broad sense) leave and pay entitlements. The Government is considering "high level" reforms that will involve trade-offs from the existing system including around how leave is split between parents, flexibility, costs and timing of when leave can be taken. The current types of leave being looked at are:

  1. Paternity Leave and Pay for eligible fathers and partners;
  2. Shared Parental Leave and Pay for eligible couples;
  3. Maternity Leave and Pay/Allowance for pregnant women and new mothers; and
  4. Parental Leave for parents of older children.

The Government is also considering a very bold move to a new model for family-related leave, essentially wiping the slate clean and starting again to develop a modern comprehensive suite of family-related policies. This would be a daring political move as any wholesale revision will result in winners and losers compared to the existing framework.

The Consultation closes in this regard on 29 November 2019.

Neonatal leave

A new right to neonatal leave and pay is being considered. This would give both parents the right to receive one week of Neonatal Leave and Pay for every week that their baby is in neonatal hospital care, up to a maximum number of weeks (a cap) for babies who had spent a minimum of two continuous weeks in neonatal care immediately after birth. Essentially, Maternity and Paternity leave and pay periods will be extended. Views are sought in particular on the leave length cap.

The Consultation closes in this regard on 11 October 2019.


Proposals to increase transparency and visibility for employer work-life balance policies are also being considered. Under consideration are:

  1. A requirement for employers with 250+ employees to publish family-related leave and pay and flexible working policies on their own website.
  2. Statutory requirement to publish the policies on the government's Gender Pay Gap Reporting Portal.
  3. A requirement to say whether jobs may be open to flexible working in any job advert.

The Consultation closes in this regard on 11 October 2019.

Redundancy protection

Early this year, the Government consulted on extending redundancy protection for women and new parents. Currently, if a woman's role is made redundant 'while she is on maternity leave', she is entitled to be offered suitable alternative employment by her employer or associated employer if such a vacancy exists in priority to others also at risk of redundancy. The Government proposed this protected priority period starts from the earlier point at which a woman notifies her employer that she is pregnant and is also extended by an additional six months after she returns from maternity leave.

The Consultation sought views particularly as to when the six month extension after 'return from maternity leave' should start to run and whether the six month extension should also apply for those on other forms of parental rights leave.

On 22 July, BEISpublished its Response to the Consultation Pregnancy and maternity discrimination: extending redundancy protection for women and new parents in which it confirms its plans.

  1. Ensure the redundancy protection period applies from the point the employee informs the employer that she is pregnant, whether orally or in writing.
  2. Extend the redundancy protection period for six months once a new mother has returned to work from Maternity Leave (ML) - this period to start immediately once MLis finished as opposed to after any holiday or other leave period tacked on to the end of ML).
  3. Extend redundancy protection for six months after returning from adoption leave.
  4. Extend redundancy protection into a period of return to work for those taking Shared Parental Leave (ShPL) subject to variations (e.g. fathers taking a very short period of ShPLare not in need of the same protection as a mother taking a long period of ML& ShPL.
  5. Protection will not be extended after a period of Paternity Leave.

These changes will significantly increase the potential number of those with priority for suitable alternative vacancies in a redundancy situation.

We await confirmation as to when these changes will be brought into force.

4. Off-payroll working reform: IR35 changes

IR35 refers to anti-avoidance tax legislation that applies where an individual worker provides services to an end client through an intermediary, such as a personal service company (PSC) or partnership, in circumstances where the individual would otherwise:

  • for income tax purposes, be regarded as an employee or an office-holder of the client, and
  • for National Insurance contributions (NICs) purposes, be regarded as in employed earner's employment by the client.

In 2017, changes to the IR35 regime were introduced for public sector employers essentially shifting the burden for compliance onto the end-user/hirer. The existing public sector restrictions and rules on IR35 are to be extended to medium and large private sector employers from 6 April 2020.

The final draft legislation and HMRC Response to the Consultation on implementing the extension was published on 11 July. As expected, the Government is pressing ahead with its plans to bring in this change on 6 April 2020.

Under the controversial change, instead of the contractor having responsibility for determining their employment status for tax purposes, the client will need to make the call. They could be liable for any missing tax if they get the decision wrong. The client/hirer will also have responsibility for passing the status notification down the chain and directly to the worker. There will be a statutory status disagreement process aimed at resolving any disputes around the determined status and measures aimed at preventing clients making blanket determinations.

The change will only apply to large and medium sized incorporated enterprises as defined under the Companies Act 2006. For unincorporated enterprises, it only applies to those with turnover exceeding £10.2 million.

Further HMRC guidance is to be published over the summer. While we await the further HMRC guidance, for more information please listen to our podcast, IR35 - what's new and what to do, in which one of our tax experts, Zoe Fatchen discusses this controversial change which is expected to bring in £3.1bn in additional revenues for the Exchequer between 2020 and 2024.

5. 'Right to request' law reforms: ill-health adjustments and work predictability

The Government has announced plans to introduce two new forms of 'right to request' - health work/workplace adjustments and work predictability - to operate in a way similar to the existing right to request flexible working, so a 'right to request' not a 'right to get'.

Ill-health adjustments

On 15 July the Department for Work and Pensions (DWP) launched a Consultation Health is everyone's business: proposals to reduce ill health-related job loss seeking views on different ways in which government and employers can take action to reduce ill health-related job loss.

The proposals on the reform of Statutory Sick Pay to allow for phased returns to work and the removal of the lower earnings level threshold requirement with more robust enforcement grabbed the news headlines. However, it is another proposed reform that may have greater impact for many employers - the introduction of a right to request work/workplace modifications on health grounds. These could include not only modifications to the working environment (workplace), but could also include changes to hours or tasks (work).

The proposed reform will:

  • allow requests to be made by non-disabled employees;
  • operate in a similar way to the existing right to request flexible working requests;
  • whereas the duty to make reasonable adjustments puts the emphasis on employers being proactive in responding to the needs of disabled employees, under the right to request modifications on health grounds, the employer's obligation will be reactive to requests; and
  • employers will be able to refuse requests on legitimate business grounds.

The Consultation closes on 7 October 2019.

Work predictability

On 19 July, BEISlaunched Good Work Plan: one-sided flexibility - addressing unfair flexible working practices.

As recommended by the Low Pay Commission and announced in the Government's December 2018 'Good Work Plan', the Government confirms it will legislate to give all workers on flexible contracts (e.g. zero-hours workers) who have 26 weeks' continuous service the right to request 'a more predictable and stable contract'. Draft legislation is "to be prepared" and we await confirmation as to when it will be brought into force.

In addition to the above announcement, BEISis now also consulting on proposals to introduce:

  1. a right to reasonable notice of work schedules; and
  2. compensation for shift cancellation or curtailment without reasonable notice.

The consultation element runs until 11 October 2019.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
DAC Beachcroft LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
DAC Beachcroft LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions