HR Bulletin - November 201901 Nov 2019
Case Law Update
Is a leaked email from lawyers acting for a respondent covered by legal advice privilege?
Curless v Shell International Ltd – Yes, the judge decided that the email from a lawyer referring to the possibility of dismissing a client’s employee by reason of redundancy was covered by legal advice privilege. This meant the email could not be shown to third parties, or be used as evidence in the case. The court viewed the email as the type of advice lawyers give “day in, day out” and the advice was being given on how the employee could be made redundant “with appropriate safeguards and in the right circumstances.”
Clients should take comfort that this decision reinforces the notion that the principle of protecting legal advice is not something which can be easily evaded. This also highlights the crucial advantage of instructing a solicitor as opposed to an HR advisor. HR advisors are not covered by legal advice privilege, so all of your correspondence and all documents to and from them are potentially discloseable in legal proceedings.
If a manager lies about the reason for a dismissal, is it enough to shift the burden of proof onto the employer in a discrimination case?
Base Childrenswear v Otshudi – Yes, the judge in this case found that the manager’s persistence in lying about the real reason for the claimant’s dismissal formed the basis of a case for race discrimination. This put the responsibility on to the employer to prove that race did not play a part in the reason for the dismissal. The employer failed to show this and the appeal was dismissed.
Employers should be aware of this when giving reasons for dismissing an employee.
World Menopause Day – new Acas guidance
Friday 18th October was World Menopause Day, which aims to raise awareness about the menopause and support options for improving health and wellbeing.
Acas have released new guidance to assist employers with supporting staff who are affected by the menopause. The guidance suggests that employers should carry out suitable health and safety checks, develop and implement a menopause policy, carefully manage any sickness absence, and show commitment to open and honest conversations about the menopause. The guidance also raises awareness of the employment laws that can relate to menopause issues at work, such as the risks of sex, disability or age discrimination.
The full guidance can be found on the Acas website here.
What’s in the pipeline?
Our next HR Breakfast Club is coming up on Thursday 5th December. We will be giving our usual case law update and our senior commercial litigator Peter Kay will be covering how to manage relationships with recruiters. We will also be joined by award-winning speaker, author and former BBC journalist/presenter Penny Haslam, who will be talking about the power of visibility. To attend our next free HR breakfast seminar on the 5th December, please sign up here.
On 6th and 7th November 2019, the Supreme Court will hear Morrisons’ appeal against the ruling that it was vicariously liable for a data leak by their employee Andrew Skelton. The breach resulted in around 5000 staff members having their personal data stolen and shared with the public.
On 28th November 2019, the Supreme Court will decide whether Barclays Bank is vicariously liable for the sexual assault of 153 claimants, who were assaulted when attending a medical examination required by the bank to establish whether they were physically qualified for employment and life assurance cover.