It is undoubtedly the case that a big part of the current debate on sexual harassment in the workplace centres around non-disclosure agreements (NDAs), or confidentiality clauses as the Government prefers to call them. In some respects the issues around these clauses are matters of perception. For it has always been the case that those who sign up to these agreements are not prevented from subsequently going to the police, or speaking to the relevant Regulators, or consulting their medical practitioner for the purposes of obtaining medical advice or making a “protected disclosure” pursuant to our “whistleblowing” legislation.
With the Senior Managers and Certification Regime (SMCR) due to be extended to all regulated financial services firms in six months’ time (9 December 2019), we reflect on three key learning points from the regime which has already been in place for banks, building societies, credit unions and PRA- designated investment firms since March 2016.
Last month, an Employment Tribunal ordered an employer to pay a former employee the sum of £8,000 (plus interest), in the form of an injury to feelings award, following its earlier judgment that the employee had been directly discriminated against on the basis that she was a lesbian. This was despite the fact that there was no evidence that the discriminator was in any way prejudiced against lesbian employees.
The Court of Appeal’s judgement in Forse & ors v Secarma Ltd & ors is an important case on springboard injunction applications in employee competition and team move cases. It is also a prime example of how WhatsApp messages can provide crucial evidence in such cases.
A recent Employment Appeal Tribunal (EAT) case has highlighted that if a court or tribunal criticises the credibility of witness evidence from a regulated financial services executive, then they are at risk of failing the fit and proper test, and being dismissed.