Employment Highlights May 2018

It’s no surprise that the key employment highlight for May was the implementation of the GDPR.  We all had so many emails about updated privacy policies, it very nearly became ridiculous! If you still haven’t sorted out your obligations for GDPR for your employees, don’t panic and drop me a line and we can sort this out for you.

This month, the Data Protection Bill 2017-19 received Royal Assent to become the Data Protection Act 2018 (DPA 2018). The DPA 2018 implements standards set out in the General Data Protection Regulation ((EU) 2016/679) (GDPR), which is directly applicable in all EU member states, with effect from 25 May 2018, including the UK until it leaves the EU. Commencement regulations have since been made to bring most of the provisions of the DPA 2018 into force.

Meanwhile, the Supreme Court has held that a “No Oral Modification” (NOM) clause was legally effective, meaning that an orally agreed variation was not binding. The Supreme Court considered that NOM clauses served legitimate commercial interests such as providing certainty over contractual terms.

The Court of Appeal has held that an employee who claimed constructive unfair dismissal because of a continuing cumulative breach of the implied duty of trust and confidence could revive their right to terminate their employment, provided that the later act, the “last straw”, formed part of the series. In a separate case, the Court of Appeal has upheld the decisions of an employment tribunal and the EAT that an employer had discriminated against a disabled employee after they were dismissed for misconduct despite the employer being unaware that their actions were due to their disability. The decision is significant, as it confirms that employers will be liable for discrimination arising from disability even where they have reasonably concluded, based on the evidence, that there is no correlation between an employee’s actions and their disability.

This month, the EAT has handed down several significant decisions, stating that employers will have no “reasonable and proper” cause for their actions in a claim for breach of the implied term of mutual trust and confidence if they unilaterally impose a significant pay cut on an employee, and upholding a tribunal’s decision that a hospital trust fairly dismissed an employee for a series of misconduct issues despite there being no evidence of gross misconduct or previous wrongdoing. The EAT has also upheld an employment tribunal’s decision that a Muslim employee had not suffered religious harassment when they were asked if they were a supporter of terrorist organisation, Islamic State, and has ruled an Addison Lee courier to be a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996.

In other news, the Lord Chancellor has provided an update on employment tribunal fees to the House of Commons Justice Committee, amid news that Acas conciliators have taken strike action over insufficient resources and a mounting workload. The government has published a response to its technical consultation on the draft Trade Secrets Regulations and has laid the Trade Secrets (Enforcement, etc.) Regulations 2018 (SI 2018/597) before Parliament. Lastly, the Government Equalities Office has published its long-awaited guidance on dress codes and sex discrimination, aimed at employers, employees and job applicants.

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