The use of Non-Disclosure Agreements (NDAs) to cover up claims of sexual harassment and discrimination may become a thing of the past, says Jas Dubb, Employment Law specialist at The Wilkes Partnership.

When a member of staff leaves an employer, the company may seek to enter into a legally binding settlement agreement, in which the employer will often insist upon a confidentiality clause (which is a form of non-disclosure). A settlement agreement is an agreement whereby the employee agrees not to issue any claims against the employer usually in exchange for an agreed sum of money. Entering into a settlement agreement, containing stringent confidentiality terms, effectively buys an ex-employee’s silence.

The use of settlement agreements to settle allegations of sexual harassment and discrimination in the employment field has come in for considerable public debate of late. Many ex-employees have said they had little option but to consider the settlement route. The lack of affordable legal advice, the legal costs and relatively low compensation awards and the fear of being ‘blacklisted’ from future employment have deterred them from bringing an Employment Tribunal claim.

Earlier this year the Telegraph reported on several alleged cases involving Sir Philip Green, owner of high street brands including Top Shop, Dorothy Perkins and Burtons. Sir Philip tried to prevent The Telegraph from publishing the allegations but ended up with a £3 million legal bill and the details were published anyway.

Billionaire Sir Philip is facing ongoing allegations of sexual misconduct and racist behavior from a number of former members of staff. He is reported to have paid them vast sums – up to £1 million to keep them quiet through the use of NDAs.

Such high profile cases have intensified the call for reforms in the use of the law concerning NDAs. The House of Commons Women and Equality Committee has recently produced a further report entitled ‘The Use of Non-Disclosure Agreements in Discrimination Cases’.

Whilst acknowledging the many protective aspects of Non-Disclosure Agreements for employees as well as employers the report highlights a number of potential downsides with the continued blanket use of NDA, including:

  • their use to cover up unlawful discrimination and harassment allowing management behaviour and organisational culture to go unchallenged and unchanged
  • they can enable perpetrators to go on to harass and discriminate against others and prevent victims of such behavior from knowing about or supporting other complaints
  • they make employers complacent allowing them to avoid investigating unlawful discrimination or harassment complaints and holding perpetrators to account
  • they are being traded for things that employers should be providing as a matter of course such as references and remedial action to tackle discrimination.

This report makes a number of recommendations on preventing and dealing with sexual harassment and discrimination in the workplace including:

  • stopping the use of confidentiality clauses to cover up allegations of sexual harassment and discrimination
  • a requirement for the use of plain English in confidentiality clauses
  • one-way cost shifting so the employer is more likely to be ordered to pay the employee’s costs in the event of a successful Tribunal claim
  • an increase in damages for pain and suffering
  • requiring employers to pay the cost of employees seeking legal advice on settlement agreements
  • strengthening of corporate governance requirements, forcing employers to face up to their responsibility to protect employees from harassment and discrimination

For advice on any employment related matter and to discuss our Free Employment Health Check for your business please contact Jas Dubb at The Wilkes Partnership on 0121 233 4333.

Does an individual’s right to the freedom of expression take precedence over confidentiality obligations owing to their employer?

No, was the decision of the High Court in the case of, Linklaters LLP v Mellish.

Lisa Moore, Employment Solicitor in our Birmingham Officeconsiders the outcome of this recent case which balances the Articles of the European Convention on Human Rights (‘Convention rights’) against the duty of confidentiality.

In this case, Mr Mellish was employed by Linklaters as Director of Business Development and Marketing. He was subject to an express confidentiality provision as detailed in his contract of employment. Following the termination of his employment, Mr Mellish notified his ex-employer that he planned to, ‘share his impressions of the current culture at Linklaters’ along with what was described as, ‘the ongoing struggle Linklaters has with women in the workplace’ and provided various examples of his concerns.

Consequently, Linklaters issued an application for an injunction to restrain disclosure of confidential information; namely, to protect the names of the individuals involved along with some details relating to the relevant matters. The confidential nature of these issues were such that they were not set out in the body of the Court’s transcript and instead were attached as a confidential Annex to the Judgment.

The High Court considered whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. It was also noted that other Convention rights could be relevant in the circumstances such as the right to privacy of the third parties who could be named by Mr Mellish.

The Court ultimately decided to grant a temporary injunction despite this conflicting with the right to freedom of expression to which Mr Mellish was entitled. Several factors formed the basis of this decision.

Firstly, the Court felt that the matter would have good prospects of success should it proceed to trial. Secondly, there was a clear risk that highly sensitive information could be published. The rights of the third parties involved were also highly relevant to the Court’s decision. It was considered that reputational harm was not the primary motivating factor for Linklaters having applied for the injunction. If it had been, it was far less likely that the injunction would have been granted.

Lisa Moore comments: “Although applications for injunctions are considered on a case by case basis, employers should seek some comfort from this decision. The High Court is clearly willing to override Convention rights to prevent the disclosure of confidential information where necessary. This decision also serves as a reminder of the importance for employers to adopt appropriately drafted confidentiality provisions to protect their position as far as possible. An employer is in a much stronger position whenever attempting to enforce an express term of a contract rather than just relying on an implied term.”

For more information about how we can help assist your business in respect of the above issues, from drafting appropriate confidentiality provisions and restrictive covenants, to obtaining an injunction, please follow the link to our Business Protection Package.

Otherwise, to discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

Steve Dymond was found dead on 9th May a week after filming the show, during which he took a lie detector test.

A lie detector, or a ‘polygraph monitor’ is a machine that senses the person’s breathing rate, their pulse, blood pressure and perspiration.

Jackie Lee, Solicitor in the Family Team at Wilkes said “ A lie detector cannot be admitted as evidence in the family court as the results of the detector are not reliable and cannot be used as evidence as different people react differently to lying”.

“When evidence is given in the Family Courts, the witness is usually given the opportunity to set out their position in a witness statement and attach documents in support. They will be required to sign a Statement of Truth. On the day of the Final Hearing, the witness has an opportunity to confirm the contents of their witness statement in person. The opponent or his/her legal representative has the opportunity to ask the witness questions and cross examine them, the Judge will decide,  “on the balance of probabilities” based on the evidence he/she has heard, whether the evidence given by the witness was convincing.

Mrs. Lee further added ‘ evidence is usually given in private in the Family Courts to protect the family’s interests, although there may be some cases when they are allowed to be reported if the Judge permitted.

For further advice in relation to a family related matter, please contact Jackie Lee on 0121 785 4443 or email jwlee@wilkes.co.uk

There has recently been an interesting development and expansion to employee rights and protection in the workplace.

In July 2017 Parliament introduced The Parental Bereavement (Pay and Leave) Bill (‘the Bill’).

The new law, expected to come into force in 2020, will give all employed parents the entitlement to have two weeks’ paid leave following the death of a child under the age of 18, or should they suffer a stillbirth from 24 weeks of pregnancy. 

Jas Dubb Associate Solicitor in our Employment Team considers the key points of the new law and the impact this could have on employees.

Attempts to introduce paid parental bereavement leave over the past few years have been unsuccessful but the Bill which introduced into the House of Commons on 19 July 2017, has led to the Parental Bereavement (Leave and Pay) Act 2018. It will seek to ensure grieving parents in employment, with 6 month’s service or more will receive 2 weeks paid leave to grieve away from the workplace.

Employees will be entitled to a statutory rate of pay (currently £148.68 a week) or 90% of their average weekly earnings per week (whichever is lower). This is in comparison to the capped statutory rates in place for employees on maternity leave/ paternity leave or shared parental pay.

Most employers are likely to be sympathetic to an employees’ need for time off and support during such a difficult time. But currently the only recourse available is under the Employment Rights Act, under which employees only have a right to take a “reasonable” amount of unpaid time off work but only to the extent of putting in place arrangements in case of an emergency which may affect a dependant they have responsibility for. What is deemed “reasonable” depends on the circumstances and can vary from employer to employer.

Jas Dubb comments: “It has been estimated that 1 in 10 employees are likely to be affected by bereavement at any one time. The loss of a child is a traumatic experience for any parent. The Bill will provide parents with the certainty of having time off as a matter of  right so they can grieve and start to come to terms with their loss.

In these situations, employers should be mindful that advance planning and training will ensure that managers are better prepared to deal with what can be a difficult time for staff affected by bereavement. Employers should also consider having a separate written bereavement policy in preparation for the future or at least consider reviewing their Employee Handbooks and updating their Family Friendly Policy accordingly.”

For further guidance on this issue or any other employment related matter please contact Jas Dubb on 0121 710 4312 jdubb@wilkes.co.uk.

The Wilkes Partnership are delighted to announce the promotion of 4 members of staff across our Birmingham and Solihull Offices.

Congratulations to Mike Linford (Senior Associate, Corporate) Lucy Freeman (Associate, Corporate), Katie Briggs (Associate, Property Litigation) and Verity Shepherd (Senior Legal Executive, Private Client).

Ellie Holland, Managing Partner at Wilkes, commented:

“It’s been a fantastic 18/19 for Wilkes which has seen the firm expand and take on 35 new members of staff, through organic growth and our merger with Coley & Tilley. We are delighted to be able to recognise the great work and contribution to the firm that Mike, Lucy, Katie and Verity have made.”

It’s an exciting time to be at Wilkes and we are currently hiring for a number of roles within the firm which can be found here.

It has been over one year on from the Supreme Court unanimously ruling that tribunal fees were unlawful and needed to be quashed, so where are we now?

The Ministry of Justice has confirmed it will be considering the reintroduction of fees for Employment Tribunal claims.

Jas Dubb of The Wilkes Partnership considers the possible decision and the impact this could have on future Employment Tribunal cases.

Tribunal fees were introduced in July 2013 with the aim of reducing malicious and weak claims. This led to a 70% reduction in cases over three years.

The decision made in 2017 arguably was the most significant judgement in employment law over the last 50 years.  The Supreme Court decided that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 prevents access to justice and was unlawful.

Since the ruling in 2017, unsurprisingly, the number of Tribunal claims has increased.

Jas comments: “The Supreme Court judgment didn’t completely rule out Tribunal fees and in the longer term, it is probable that fees will be reintroduced but the fee levels will have to be structured to ensure access to justice is achievable.”

The Wilkes Partnership Solicitors have offices in Birmingham & Solihull.

For any further guidance on this issue or any other employment related matter please contact Jas Dubb on 0121 710 5929 or jdubb@wilkes.co.uk.

Commenting on the latest changes to divorce law Jane Barclay, Senior Associate at The Wilkes Partnership, says:

“With these changes it may be a concern that divorce will be made easier but as there is a proposed minimum time frame of six months from petition until final divorce there will be a “meaningful period of reflection” to access relationship counselling if appropriate,  or to attend mediation in order to reach agreement with regard to financial or children arrangements. This should stop the concerns of ‘knee jerk’ divorces.

“The hope is that taking out the need for blame will have a less damaging effect on children and with this one major area of conflict removed there will be a more positive impact on all parties. In these situations of high stress, it is often the safety of vulnerable individuals that are of most concern. This can be children, but it can also be those in an abusive relationship where one party has been able to contest a divorce in order to continue to exercise their coercive and controlling behaviour over the other. 

“However, there could still be a wait for legislation to be passed as this will be only be introduced when Parliamentary time becomes available. Given the current situation it is impossible to predict when this will happen.”

For help on advice on a family law related matter please contact Jane Barclay on 0121 710 5963 or jbarclay@wilkes.co.uk.

The Government has published a consultation paper on extending legal protection for pregnant women and new parents. This will include protection from redundancy for women during pregnancy, women who have returned to work after maternity leave, and new parents.

Alongside this, the consultation will also seek views on whether this protection should be extended to others taking similar leave, such as adoption leave and shared parental leave.

This follows the Taylor Review of Modern Working Practices and a 2016 report by the Women and Equalities Select Committee (WESC) which stated that pregnant women and new mothers continue to feel forced out of work.

Sarah Begley of The Wilkes Partnership considers the possible outcome and the impact this could have on future Pregnancy and Maternity rights.

Under current regulations, in a redundancy situation, employers have an obligation to offer women on maternity a “suitable alternative vacancy” where one is available, giving women on maternity priority over others who are also at risk of redundancy. Failing to comply with this obligation will be an automatically unfair dismissal. However, this provision ends when an individual returns to work.

The consultation paper seeks views on whether protection should be extended throughout pregnancy giving an enhanced period of protection to six months following a return to work. The rationale behind this is that it would allow sufficient time for an employee to re-establish themselves in the workplace following their maternity leave. The government is also consulting over whether this same protection should be offered to those returning to work from other similar forms of leave (for example, adoption leave and shared parental leave) and whether more guidance is required on the rights of pregnant women and new mothers.

The deadline for responses is 5 April 2019.

Sarah Begley explains that “The proposals made are simply to extend rights so that they begin when a woman informs her employer that she is pregnant and continues to apply for six months after her return. If and when brought into force, this would not stop an employer from making an employee redundant when she was pregnant, on maternity leave, or recently returned. It would simply mean that if the employer did so, and had suitable alternative work available, then they would be obliged to offer her that alternative work. 

With consultation due to close in April 2019 and no date for the implementation of any change, employers are not faced with an immediate change to the current system. However, polices should be reviewed in due course and at the very least employers need to be mindful that they are complying with the current rules.

For any further guidance on this issue or any other employment related matter, please contact a member of the Employment Team at The Wilkes Partnership LLP. Alternatively email us at employmentlaw@wilkes.co.uk.

Sophie Fenn, Associate Solicitor in our Private Client Team is backing a call from The Solicitors for the Elderly Group to urge people to check their eligibility for a lasting power of attorney (LPA) fee refund, after almost two million people were overcharged by the Office of the Public Guardian (OPG) between 2013 and 2017.

Claimants can expect to receive a refund of up to £54, with any accrued interested since the registration was made.

So far, only 200,000 of the 1.8million people owed have claimed their refund, meaning that there’s £77million still owed to customers.

To apply for a refund visit: http://gov.uk/power-of-attorney-refund. The exact amount will depend on when the registration was made, and claims must be made by 1st February 2021.

An LPA is an important document that gives a loved one the power to make decisions on your behalf when you can no longer do so. There are two types of LPA: a health and welfare LPA, and a property and financial affairs LPA.

Recent research from SFE found that there are only 7% of LPAs in place across the UK, meaning that millions of people are currently unprepared for later life. SFE urges anyone planning for their future to consider setting up an LPA and seek advice from a specialist lawyer.

Sophie Fenn said:

“It takes about ten minutes to claim online. You’ll need the donor’s bank details and a copy of the LPA, if you have it. If you need help or more information about making a claim, there’s a Refunds Helpline you can contact, either via telephone on 0300 456 0300 or email poarefunds@justice.gsi.gov.uk.”

If you do not have a LPA but are interested in preparing one please contact Sophie Fenn, Associate Solicitor at The Wilkes Partnership, Solihull on 0121 733 8000 or sfenn@wilkes.co.uk

Amanda Holden, Partner in our Residential Conveyancing team warns that conscientious homeowners wanting to reduce their carbon footprint by installing solar panels could encounter unforeseen difficulties when they come to sell their house.

In addition buyers need to be aware it might be difficult to get a mortgage on a property they have set their heart on with solar panels on the roof.

When solar power government incentives were introduced in 2010, start- up companies cashing in on these generous feed- in tariffs offered homeowners free installation and low energy bills in return for a 25-year lease of the air space above their roof. These companies then received the feed- in tariffs themselves for the period of the lease after which the ownership of the panels and roof returned to the homeowner who would then receive the feed- in tariffs themselves.

In 2013 the Council of Mortgage Lenders and the Building Societies Association introduced a contract for solar panel companies to enter into with stringent rules put in place to ensure that any damage to the property would be repaired. However anyone having solar panels installed in this way in those interim three years are not protected by this contract and may find it difficult to sell their home.

Installation costs have now gone down dramatically and so have the feed- in tariffs.  These will in fact be abolished altogether for solar panels installed after 31 March this year. If you are hoping to get in quick with plans to meet this deadline then be careful that you are fully aware of what you are entering into.  The 25-year leases are registered against the title to the property regardless of who owns it and you will have to find a buyer willing to take on the remaining years of any existing lease. Even if your buyer is happy their proposed mortgage lender may have additional requirements in this respect.

If you are determined to do your bit for the planet in this way then be sure to familiarize yourself with all of the implications. Your solar panel provider will need to obtain permission from your mortgage company to grant consent for the lease of the air space above your roof .

Even if you own your home outright then you should still seek legal advice before agreeing to such a lease otherwise you could be compromising your ability to sell.

If you would like to discuss any conveyancing matter in more detail please contact Amanda Holden on 0121 733 8000 or aholden@wilkes.co.uk.

You can find out more about our conveyancing team here.