In our March 2024 legal blog the CIPD explores how the financial industry’s Sexism in the City report may point to the tip of an ‘inappropriate NDAs iceberg’. We look to the clarification provided in cases of verbal request for unpaid parental leave, plus, the confusion that has arisen following the UK Government’s guidance on part-year workers in schools...
Sexism in the City
The House of Commons’ Sexism in the City investigation returned in March 2024. Within the far-reaching findings, the Committee found that within the UK financial services industry, NDAs are being used inappropriately. Concerningly, inappropriate use was particular to sexual harassment cases.
The report reads: “The elimination of sexual harassment including serious sexual assault, and bullying, should be a minimum standard expected to be guaranteed across the sector. It is a source of deep concern to us that this has not yet been achieved. This needs to be addressed and urgently.”
Concurrently, the Legal Services Board (LSB) have published the Mis-use of Non-Disclosure Agreements report which does not fare much better.
Focused on whether sufficient legal guidance is shared with individuals who are presented with NDAs, the board found that insufficient information or guidance on the use of such agreements has increased since 2020.
Worryingly, the LSB found notable misuse in the education, charity and legal sectors. The cases where NDAs were being presented inappropriately included in claims of maternity discrimination and sexual harassment, assault or abuse.
Anyone using NDAs in their sector should note the increasing scrutiny in this area and ensure that policies on the use of such agreements are reviewed. If considering the use of an NDA, sufficient legal guidance should be offered to all parties. The CIPD provide information on the proper use of NDAs in our ‘Sexual harassment in the workplace’ guide.
Pete wasn’t just ‘being Pete’ when he verbally sought parental leave
March has seen a case pass through the Employment Appeal Tribunal system which questions at which point an employee is considered to have “sought” parental leave.
Here the claimant stated that verbal requests for unpaid parental leave were refused with the reasonings that he was required to be in the office "Monday to Friday, 8-5pm with no exceptions". Further, when recounting the rejection to the managing director, his disgruntlement was said to have been dismissed as "Pete just being Pete".
The claimant was later made redundant.
The key point of the case was that although the claimant did not make the formal request for parental leave (as set out in the Maternity and Parental Leave etc Regulations 1999) were the verbal requests enough to have “sought” the leave?
The EAT agreed with the claimant that the verbal request was enough to have “sought” leave. Rt Hon James Taylor held that there is no absolute requirement for a written, formal, request for parental leave. “Sought” was a condition satisfied by the actions of the employee.
People professionals will note that the case demonstrates that the risk of claims of this nature will be minimised by having clear policies on parental leave and by keeping detailed records of interactions with employees seeking any type of leave.
Government guidance confusion
April 2024 will see the onset of additional part-year workers' rights including the introduction of a consistent calculation method for holiday pay.
The introduction of this ‘12.07% method’ is no accident. The changes follow a consultation which examined whether a precedent set by the Supreme Court – that part year workers should have their annual leave entitlement pro-rated – was fair. The reassessment was on the basis that part year workers may now be entitled to more paid holiday than part time workers (who were on the pro rata principle).
The UK Government deemed that employers of part year workers may, from April 2024, calculate holiday pay at the rate of 12.07% of hours worked in a pay period instead.
One outstanding issue lies in UK Government guidance on this matter. In one of the case study example calculation ‘Ian’ is paid a flat salary over 12 months but has a contract that states he does not work for periods of the year; therefore, according to the guidance, he would not be classified as a part-year worker. This would leave Ian with the right to pro-rated holiday entitlement once again.
The issue, highlighted by SchoolsWeek, is pertinent as such contracts, when used for term time contracts for school workers, could end up leaving schools ‘out of pocket’. The guidance is said to be being reviewed by the UK Government.
And finally
Did you know there are at least nine employment law changes coming into effect this April? The increased rights for employees signal a step-change for people professionals.
All updated information will be available in our employment law guidance for members.
