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Employment law specialists
October/November News

Welcome to our latest employment law news update.

This month our blog posts cover the furore over the use of non-diclosure agreements (NDAs), Ryanair's dismissal of six employees who were photographed sleeping on a crewroom floor, Tom Sutherland's twist on how workplace "Bake Offs" can get out of hand and his discussion about the extraordinary overtime claimed to have been demanded of employees working on the newly released video game (is that what you still call them?) Red Dead Redemption 2.

In other news, there was an important decision in the Court of Appeal which upheld a £2m award in a whistleblowing case, one of the largest ever made. However, it was not just the award which was notable. In the first case of its kind, it was held that directors of the company that employed the claimant were personally liable. The reason why this is possible is that the whistleblowing legislation provides that claims can be brought against individuals who have caused detriment to a whistleblower leading to his or her dismissal, in much the same way that individuals may be named as respondents in discrimination cases

The decision will provide food for thought for those that have taken the view that the easiest way to avoid liability in respect of employment claims is to "crash" the employer company and start again (commonly referred to as "phoenixism"). Clearly this has also been on the mind of Business Secretary, Greg Clark, who is drawing up plans to "name and shame" employers who fail to honour payouts awarded at employment tribunals, in like manner to HMRC's strategy of naming and shaming businesses that fail to pay the minimum wage. According to Government research, more than a third of those who awarded compensation in tribunal proceedings do not ultimately receive the cash.

For our next edition Tom has promised some Christmas themed posts so look out for them about this time next month.

Kind regards,

Martin Malone

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This month's news
    Was Ryanair’s dismissal of staff a bumpy landing?
 
by Tom Sutherland
 

It’s fair to say that Ryanair aren’t strangers to controversy. Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport. Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor. That would be ludicrous and completely unfair. But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them? What’s the big difference? Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation. And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?

 
 
Read more
 

  Sir Philip Green   What shall we do about NDAs?
 
by Martin Malone
 

Non-disclosure agreements are nothing new. They were initially used in commercial transactions in order to protect parties in negotiations from the disclosure of commercially sensitive information. It remains the case that businesses which are considering mergers or acquisitions will normally start the process by requiring the interested parties to sign an agreement that is intended to ensure that, in the event that discussions do not lead to fruition, details of the parties, such as their business plans, forecasts and any other confidential arrangements, are not at risk of being leaked. This makes perfect sense, not least from the point of view of data protection.

Their use has become more widespread and they have moved into the sphere of employment law. It is more or less standard for settlement agreements (on the termination of employment) to include clauses which provide that the parties will keep confidential the terms of settlement and the circumstances giving rise to it. In most cases, this suits both parties. In effect, the employee is agreeing a trade off with the employer that, in return for a pay off which avoids the need for protracted, expensive and uncertain legal proceedings, they will accept an enhanced payment on terms which, to borrow a term from divorce law, provides for a clean break.

However, you can’t have missed the furore that has brought such agreements into the news headlines, particularly in the case of retail supremo Sir Philip Green and media mogul Harvey Weinstein. The #MeToo movement has led to a lively public debate about the inequality of arms which tends to accompany such deals and their ability to conceal serious wrongdoing including illegal activities, particularly discriminatory behaviour and, in the more severe cases, the sexual assault of women.

There is an overlap here between civil law, which in this context is concerned with the enforceability of contractual agreements, and criminal activity, the investigation and prosecution of which might, on the face of it, be concealed or suppressed by the signing of such agreements. Another question is whether whistleblowing can be subverted by being effectively bought off?

 
 
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  cake   Great British Bake Off: When workplace tensions ‘knead’ solving!
 
by Tom Sutherland
 

I didn’t know who won The Great British Bake Off when it was first broadcast on Channel 4. That’s a weird place to start a Bake Off-themed employment law blog, I know. Unfortunately, my wife dozed off in the middle of the final, so we had to wait to watch the rest of it the folowing night. This blog post was written between broadcast and catch-up.

With the popularity of the show ballooning in recent years, more and more workplaces have decided to hold ‘Bake Off’ events to raise morale and/or raise money for charity. I must admit to getting involved with such an event in my second week at a previous employer.

Just to set the background, I’d never properly baked in my life and so, obviously, thought that trying to bake a cake was the right way to win over my new colleagues. Come the morning of the competition, from the outside at least, the cake looked fantastic. The problem? Firstly, it was a rather fragile two-tier cake, so I was forced to drive to work in no higher than fourth gear (to the utter joy of the traffic behind me) and, secondly, because the judge (who no doubt had been studying the critical technique of Paul Hollywood) called my sponge ‘ultimately disappointing’ and my dreams of Bake Off-style glory evaporated in an instant!

Why am I discussing this? Well, Bake Off events in the workplace have the potential to cause workplace angst and, at very least, can cause staff tensions to rise. Let’s explore a quick example below.

Brilliant Banking Limited decide to raise staff morale whilst making money for their charity. To do so, they inform staff that they will be holding a ‘Bake Off event’ the next week and that ‘any cake is eligible as long as it is home-baked’.

Sue and Mel work in the same department and are very competitive. They both decide that they will win the competition and that the whole ‘it’s the taking part that counts’ philosophy is nonsense!

It comes to the day of the competition and Sue and Mel’s manager, Mary, is judging the cakes. Mary decides that Sue’s cake is the best and Mel’s cake is second. Cue an explosion from Mel in front of half of workforce in which she inaccurately accuses Sue’s cake of being ‘made by her cake-baking mother’ and (without reason) announces that Mary ‘has always liked Sue the most’.

What would happen next in this cake-related conundrum?

 
 
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  cowboy   Red Dead Redemption 2: Is ‘crunching’ actually voluntary overtime?
 
by Tom Sutherland
 

On 26 October the biggest video game since Grand Theft Auto 5 was released. Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”.

What is Red Dead Redemption 2? Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape.

So, why is it such a big deal? One word: Rockstar. Rockstar are the equivalent of Apple 10 years ago. By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling. As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies!

So, surely, eight years is more than enough to make a good game. Well, yes. But Rockstar want to make ‘extraordinary’ games not just good or very good ones. And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’ overtime and the issue of ‘crunching’.

Let’s tackle the media controversy first. Around a fortnight ago, the head writer behind the game gave an interview to the New York Magazine and described working “100 hour weeks” to get the game finished. He quickly retracted his comments and stated that he only meant 100 hours weeks in relation to himself and the writing team and only for a period of three weeks but the damage was done and every former disgruntled Rockstar worker (and some current members of staff on an anonymous basis) came out to complain about ‘crunching’.

‘Crunching’ is the practice of having an extremely tight deadline and needing to dedicate a large number of additional hours (outside usual working hours) to get the task complete. Akin to cramming work into an essay at 11pm the day before submission, for example, albeit that essay isn’t worth hundreds of millions of pounds!

Whilst the internet, as usual, has really come into its own with a ‘black and white’ analysis of events (i.e. Rockstar are either ‘amazing to work for’ or ‘evil’), this does highlight the grey area that is overtime.

 
 
Read more
 
Lexcel
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Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

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Tom Sutherland
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