In this quarters update we look at the legislation change to the issuing of Fit Notes, recent case law judgements covering Redaction And Anonymisation Of Documents along with Contractual Restrictive Covenant clauses, along with our usual Training details and Partner Services.
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Legislation Updates / Case Law
Issuing of Fit For Work Notes
From the 1st July, new rules mean nurses, occupational therapists, pharmacists and physiotherapists can all legally write them for workers to get signed off from work.
Redaction And Anonymisation Of Documents Owing To Concerns Regarding Commercially Sensitive Information Contained Therein Denied.
The Claimant brought proceedings for automatically unfair dismissal owing to protected disclosures. These protected disclosures involved alleged anti-competitive practices. The Respondent applied under rule 29 (case management orders) and rule 50 (privacy and restrictions on disclosure) of the Employment Tribunals (ET) Rules of Procedure 2013 for client names to be anonymised / redacted throughout the documents, including in the judgment, owing to their commercial sensitivity. The ET’s orders largely followed the Respondent’s application, and the Claimant’s initial application to have the anonymisation / redaction orders set aside was refused. Following an appeal, the employment appeal tribunal (EAT) held that the Tribunal had erred when granting orders for the redaction and anonymisation of documents owing to concerns regarding commercially sensitive information contained therein. The EAT found that the Tribunal had erred in failing to have regard to Article 10 ECHR (freedom of expression) and Article 6 (fair trial) when making any anonymisation order. The ET had also failed to refer to rule 31 (disclosure of documents and information), which was relevant. There was also an important public interest in public hearings, open justice and the availability of information for press scrutiny.
High Court Upholds 12 Month Restrictive Covenant Contract Clause
Any contractual term restricting an employee’s activities after termination is void for being in restraint of trade and contrary to public policy unless the employer can show that it has a legitimate business interest to protect and the clause they are relying on goes no further than is reasonable to protect that interest. In a recent case, a solicitor resigned in order to work as a partner for a large corporate law firm. Among other restrictive covenants, her service agreement contained a post-termination non-competition restrictive covenant that prevented her for 12 months after termination from being involved with the provision of services to (or otherwise have any business dealings with) any “Restricted Customer” in the course of any business concern which is in competition with any “Restricted Business”. A “Restricted Business” was defined as “those parts of the Company with which the Employee was involved to a material extent in the 12 months before Termination.” In joining the new employer, neither the employee nor the new employer considered that there was any breach of the restrictive covenants. The employee refused to give undertakings in relation to the non-competition covenants, stating that they were unenforceable. Her former employer issued a high court claim seeking interim and final injunctive relief. The employee had provided her new employer with a business plan. This showed in the clearest possible terms that the employee intended to “transition” some £252,000 of her former employer’s business over to her employer. This was a substantial proportion of her former employer’s turnover (over a third). It was also very significantly more than the employee had billed in respect of these clients in the year before the business plan was created. The judge also noted that the employee wrongly described her work in the business plan as ‘self-generated’ and, the judge added, regarded her largest client as ‘personal to her, her own, and as something that she was entitled to transport’. The High Court found that overall it was very difficult to square the terms of the business plan with the employee’s arguments in the proceedings that the non-competition clauses should not be enforced as a matter of discretion because they are unnecessary by reason of the non-solicitation and non-dealing undertakings that she had given. In the High Court’s view, the applicant had legitimate business interests that very clearly required protection. Confidential information as to key individuals within client organisations, pricing structures, and deals offered to clients were clearly known to the employee. She was privy to the same information about the inner workings of the firm as a statutory director. The High Court found that it was an uncomplicated conclusion to reach that this covenant extended no wider than was reasonably necessary for the protection of those business interests. By restricting the non-competition covenant to parts of the business that the employee had not been involved into a material extent, it was reasonable to restrict her from joining a business which competes with those parts of the applicant’s business. The High Court found that 12 months was a reasonable period for the protection of the applicant’s legitimate business interests and rejected the employee’s submissions that the covenant’s duration should be restricted to 6 months. Such a period was reasonably necessary in order to find, successfully recruit, and then train / integrate a lawyer in a small firm such as the applicant firm. The High Court also found that the pool of potential recruits is narrowed by all of these factors: finding someone who does not want to work in a larger firm, who specialises in the relevant areas of work, who is of similar seniority to the employee, and who is reasonably local (or prepared to move house or have a long commute). Also, the period of 12 months reasonably reflected the shelf life of the confidential information and the employee’s ability to remember it. Generally, employers must remember that any such clause, in terms of the details protected / restricted must be no more / longer than legitimately required to protect the employers business, and if challenged the employer must be able to justify the reasons.
Vicarious Liability
Vicarious liability is the term generally used to describe the concept of an employer being liable for the acts of their employees. A recent case, where an employee whose practical joke caused injury to a contractor at work, gives an example of where this could and couldn’t apply.
Here the Defendant company (‘D’) had engaged the Claimant (‘C’) as a contractor. C had reported tension between external contractors and direct employees of D to his supervisor, and subsequently, one of D’s employees played a prank on C. This employee brought explosive pellets to work and hit them with a hammer in close proximity to C’s ear, which resulted in him suffering a perforated eardrum, hearing loss and tinnitus. C initially took D to the County Court, claiming damages for personal injury, arguing that D was vicariously liable, and also directly liable for breaching its own duty of care and failing to provide a safe working environment.
The eventual judgement was that there was not a sufficiently close connection between the act which caused the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability. Among other things, the real cause of C’s injuries was the explosive pellet, which was neither D’s equipment nor used in the employee’s work. It could not therefore be said that D authorised the employee’s actions, nor was his act an unlawful mode of doing something authorised. In was held that the wrongful acts were not done in the course of employment. With regard to C’s claim that D had been negligent and breached their duty of care, the court was of the view that there was no reasonably foreseeable risk of injury arising from the prank, and the reported tension was not enough to have suggested potential violence. Even if such a risk of injury had been established, the court felt would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay, as it’s common sense that this is inappropriate at a working site.
Whilst this case seems to give a common-sense outcome, it does not give employers blanket protection. Here the employee was acting on his own accord, and it was unconnected to his work. Where an employee plays a workplace prank and the employer is completely unaware of their intentions, the employer is unlikely to be found vicariously liable for their actions. On the other hand, if the employer knows that their employees are engaging in ‘horseplay’ and the employer either encourages it, or turn a blind eye, i.e. it is part of the workplace culture, the employer could be found liable for any harm that results from it.
Training
Operational Managers are key to a Company’s success, and how they work with and manage their teams is an essential part of this.
We have recently introduced an additional ‘1 to 1 HR Coaching for Managers’ module, Managing Recruitment. The full list can be seen below, all are delivered remotely via Microsoft Teams:
- Being an Effective Manager / Responsibilities of a Manager;
- Dealing with Misconduct (Discipline), Poor Performance (Capability) and Grievances;
- Managing Attendance / Sickness Absence;
- Managing Performance / Developing People;
- Dealing With Conflict;
- Managing Recruitment.
Each module is focussed on the key elements involved, and takes around 1 to 1½ hours, with Managers also completing a workbook containing a number of questions and scenarios which is then analysed and feedback provided to ensure an in-depth understanding of the subject(s).
We also provide the following classroom based training courses (when social distancing rules allow) to help Managers deal with issues and people correctly to enhance your business:
- Influencing Styles and Persuasive Negotiating;
- Managing Conflict;
All of our courses can be tailored to suit your exact needs and delivered at your premises if required.
More details on all of the above can be found on our website.
Partner Services
We have long-term partnerships with key providers which enables us to provide other recommended services to our clients covering:
- Legal Services;
- Financial Services;
- Health Insurance and Staff Healthcare Benefits;
- Health and Safety.
Visit our website to see full information on our partners and their services.