HR briefing - September 2023

25 September 2023

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package with our monthly podcast.

Podcast: artificial intelligence and HR

Not since the invention of the internet has a technological development received as much attention as artificial intelligence, or AI. ChatGPT is only the best known of a series of very advanced computer systems that promise to revolutionise (or threaten the very existence of) the way we all work. HR and in-house employment legal teams need to engage with these rapidly advancing technologies, which have implications throughout the employment lifecycle. In this month’s podcast, employment associate Amy Powell and lawtech manager Oliver Jeffcott join Matthew Ramsey to discuss this fascinating area. Listen to their discussion.

Discrimination: what are "all reasonable steps"?

Our August article on sexual harassment covered the Government’s proposals to reform the law on harassment and sexual harassment. One of the key changes is to create an explicit duty on employers to take all reasonable steps to prevent harassment by third parties and sexual harassment at work. Although the Equality and Human Rights Commission has given some useful guidance on what taking all reasonable steps actually looks like in practice (and we expect an updated version of that guidance to sit alongside the new legislation as and when it completes its journey through Parliament), there have been relatively few Tribunal judgments on the subject. That makes a recent Employment Tribunal decision particularly interesting. The employer had equal opportunities and anti-harassment policies and a zero tolerance approach to breaches, it encouraged reporting and investigated concerns, and sent its policies to agencies that supplied workers. All that, found the Tribunal, was commendable but not enough to show that all reasonable steps had been taken to prevent (in this case) the alleged discrimination on grounds of gender reassignment. 

As examples of other steps that could and should have been taken, the Tribunal listed (amongst other things): 

  • keeping policies up to date;
  • focussing on inclusion rather than just equality;
  • making sure staff read and understood the policies, including by regular training on equality, diversity and inclusion, and inclusive communications; and
  • setting up employee groups or networks, such as BAME or LGBTQ+ staff networks for employees in those groups and their allies.

The employer here was very large, with significant resources, and so the same assessment of what is reasonable would not necessarily be made for smaller firms. Nonetheless, the decision underlines that taking all reasonable steps requires a great deal more than including a policy in a handbook, and is something employers of all shapes and sizes, across all industry sectors, actively need to engage with.

Non-disclosure agreements (NDAs): use and misuse

The unusually restrictive NDAs that came to light during the Harvey Weinstein scandal have forced lawyers and clients to re-evaluate the way they use NDAs, confidentiality provisions and non-disparagement clauses, especially in settlement agreements. Regulators have not been slow to set their own expectations, with the SRA (Solicitors Regulation Authority) and FCA (Financial Conduct Authority) both giving granular guidance on what drafting can and cannot contain. The SRA has now published the results of its survey on the use of NDAs, carried out across a range of different law firms. The most important point to note is that lawyers and HR teams who draft settlement agreements must familiarise themselves with the requirements of the SRA’s warning notice on NDAs. Although the SRA obviously only has control over the conduct of lawyers and law firm HR teams, the guidance in the warning notice is relevant across all sectors. In financial services, teams will also need to have regard to the FCA’s own rules on whistleblowing and settlement agreements.