NDAs and the #metoo movement

If the last two months are anything to go by, the #MeToo movement shows no signs of abating; with allegations of sexual assault and/or harassment having been made against the superstar footballer Cristiano Ronaldo and, more recently, the British retail tycoon Sir Philip Green. This follows the furore surrounding the numerous allegations against Harvey Weinstein and the conviction of Bill Cosby.

With regard to the famous individuals listed above, it is understood that they had entered into settlement agreements with some of their accusers which included confidentiality and non-denigration provisions i.e. Non-Disclosure Agreements (NDAs).  Given that we are aware of these NDAs and the allegations which led to them being entered into, clearly they did not serve their purpose.

Until recently, the Daily Telegraph was prevented from publishing the allegations of sexual and racial harassment levelled against Sir Philip Green due to there being NDAs in place.  It only became public knowledge due to intervention of Lord Hain, who named Sir Philip Green in the House of Lords under the protection of parliamentary immunity. Following the Women and Equalities Committee inquiry into the Harvey Weinstein matter, the allegations against Sir Philip have brought the use of NDAs firmly back into the limelight.  As a result, some are calling  for the use of NDAs in an employment context to be banned completely.  Further, Prime Minister May has said she will review the “unethical” use of NDAs.

The Equality of Human Rights Commission (“EHRC”) refers to the “pervasiveness” of sexual harassment in the workplace in its report entitled: “Turning the tables – Ending sexual harassment at work”.   The EHRC has put forward a number of recommendations in its report on how to address this such as the introduction of: (i) new legislation to make contractual clauses preventing the disclosure of future acts of discrimination, harassment or victimisation void; and (ii) a statutory code of practice on sexual harassment in the workplace.

As shown by the mass Google walkout which occurred a few days ago, there is a need to review how sexual harassment in the workplace is addressed.  Clearly, this will include a review of the use of NDAs in such circumstances.  While I agree that such a review is required, I contend that it is necessary for Parliament to consider the potential negative implications there could be in limiting the use and/or effect of NDAs in cases involving harassment or discrimination before introducing any new legislation. I have acted for both sides where allegations of harassment or discrimination have been made.  Mutual confidentiality and non-denigration provisions are often a key consideration for both parties. If employers have no confidence in a settlement agreement providing them with the certainty that allegations of sexual harassment will be kept confidential, they may simply decide its best to defend such allegations. This is particularly so, given that the reputational damage may be less than if details of a commercial deal are later leaked.  For example, Sir Philip has denied any wrongdoing, and claims that he only engaged in banter with staff.  He may now be of the view that it would have been better if he had not entered into settlement agreements as their mere existence raises a presumption of guilt.

Should NDAs be prohibited in the employment sphere, I suspect that this will lead to much more litigation.  However, many individuals cannot afford legal fees and statistics show that individuals who seek to bring claims without legal representation tend to be unsuccessful. It also needs to be noted that discrimination claims are notoriously difficult to prove. Further, it should be noted that raising allegations of harassment and discrimination is taxing emotionally as well as financially.  Where I have acted for clients who have done so, they have all remarked about the damage caused to their health and confidence.  As such, undermining the validity of confidentiality provisions in settlement agreements/NDAs or removing them entirely, may have the unintended consequence of making things worse for the victims of sexual harassment who want to settle matters and move on with their lives.  Therefore, it would be remiss for Parliament not to take this into consideration.

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Kweku Adoboli – A cautionary tale

I was recently listening to Kweku Adoboli on Radio 4. For those who do not know, Mr Adoboli was the trader at UBS who was convicted of two counts of fraud and sentenced to seven years of imprisonment, having lost the bank somewhere between £1.4 – £1.8 billion (depending upon which report you read).   Having served half of his sentence, he is now in the process of fighting a deportation order, despite having lived in the UK for over 20 years.

As an employment lawyer, this case is of interest to me due to having listened to one of Mr Adoboli’s videos on YouTube.  At almost 90 minutes it is definitely a detailed exploration of his rise and fall at UBS.  Around the 40 minute mark, Mr Adoboli explains how he decided to inform UBS of the significant losses his desk had incurred.  In essence, according to the man himself, he decided to “take one for the team” so to speak, and simply sent an email to senior management about what had transpired, in which he assumed full culpability for the losses.

I remain flabbergasted by Mr Adoboli’s naivety and the manner in which he informed his employer of his desk’s losses.  Having read the email he sent, it is as unhelpful as any email can be and it must have caused his advisers’ much difficulty, particularly as he took full responsibility for the unauthorised trades on his desk (which he later sought to row back from).  Regulatory matters are often at play when I am advising senior executives who perform regulated functions (e.g. approved persons within the FCA regime).  For instance, I have had to advise senior executives who have been caught submitting unauthorised expenses and then have been accused of theft and/or misrepresentation.  In such circumstances, I often have to advise clients that their employment position is the least of their concerns and they should be focusing on avoiding losing their regulatory status and/or the potential criminal sanctions.  At times, this means that I need to advise clients that the safest course of action would be not to engage in any disciplinary procedure, so as to avoid saying anything incriminating, even though this means that dismissal is highly likely.  In my view, staying out of Her Majesty’s Pleasure and hopefully retaining a career must take precedence.

I cannot help but imagine how different Mr Adoboli’s situation could have been had he sought legal advice prior to taking any action.  It is Mr Adoboli’s position that senior staff members were aware of the processes he was using which resulted in the unauthorised trades to which they turned a blind eye.  He also has stated that he was placed under pressure to take such risky actions due to the aggressive culture at his employer.   Without full details on the case, one wonders if Mr Adoboli could have sought protection as a whistleblower, especially if the risky approach to trades was as actively encouraged by senior management as he appears to suggest.  This could have potentially provided him with a much better defence.  However, he will now forever be known as one of the UK’s worst “rogue traders”.

Without wishing to sound self-serving, Mr Adoboli’s case highlights that lawyers can provide real value if engaged early on in such circumstances.  Now Mr Adoboli has lost his career and is having to fight to remain in the UK.  Only time will tell if he is successful with this battle.

Where art thou the sequel – my whereabouts since January

If my blog were a book it would be covered in dust.   So I decided that I would not let this Bank Holiday pass me by without updating my blog family on what I have been doing since January 2018, in part to justify the long absence!

  1. Employment Law Journal: I must admit that I enjoy nothing more than digesting a bit of geeky case law so it has been our pleasure at Hine Legal to write 2 articles for the Employment Law Journal.  The first article was on the dangers of giving a false reason for dismissal as highlighted by the EAT in Rawlinson v Brightside Group Limited [2017].  The latest piece is on the provision of employment references and the recent High Court decision in Hincks v Sense Network Limited [2018]. The article shall be published soon on the Hine Legal website so please keep an eye out for this.
  2. GDPR: Since January of this year I have been beating the drum about the need to become GDPR compliant from an employment law perspective.  I initially discussed such matters at the Tech Tuesday event at Hounslow Chamber of Commerce.  I also gave a half day seminar on the GDPR alongside Bedrock HR and Kweku Aggrey-Orleans.  Somehow I see there being more articles and training on the GDPR horizon!
  3. CMI and Futurism: I had the pleasure of speaking at the Professional Development Conference ran by the Chartered Management Institute (CMI).  I was given free range to discuss the future of employment law so of course Artificial Intelligence and automation featured in my discussion.  While I think we are facing unprecedented changes to the labour market and how it is organised I am optimistic about the future (in part due to my sharing Rutger Bregman’s view as espoused in “Utopia for Realists: How We Can Build the Ideal World”.
  4. LBC with Shelagh Fogarty: I was asked at short notice if I wanted to give my views on unpaid shift work and internships.  My autograph can be made available upon request J!
  5. MBTI practitioner: I have spoken several times about my love of personality tests so I decided to put my money where my mouth is and pay to become a qualified practitioner via OPP.  I found undertaking the course so helpful in better understanding myself and others and will certainly be writing about this in the future.  For instance, I got to speak to a number of introverts and now better understand that my desire to create a genial environment by asking numerous questions could well overwhelm an introvert who may have been considering my first question!
  6. Mental Health Awareness Week: LexisNexis sought my views on Mental Health Foundation’s study, which shows that 74% of adults have felt overwhelmed and unable to cope at some point in the past year.  I provided some practical pointers on what employers could do to help.

Thanks as ever for reading.  If anything I have mentioned above interests you or you have questions about anything I referred to, please let me know.

 

Fudia

Musings of a futurist employment lawyer

I am a futurist enthusiast, which means that I am interested in all things artificial intelligence (AI), automation and “fourth industrial revolution” related.  I suspect that my interest is due to growing up in the 80s where movies such as the Terminator and Back to the Future reigned supreme.

I am currently working my way through, “The Future of the Professions” and although I am only at chapter 2, I am more convinced that the legal profession needs to adapt before AI make us obsolete.  Let’s just say we are living in exciting times!

With the above in mind, I am now on the look-out for areas of law which I feel need to be updated to be fit for this modern technologically-focused world.  The first area up on my one-woman task of future-proofing law is the witnessing of documents.

As you may know, there are times when you will need someone to witness you signing a document (e.g. in relation to entering into a mortgage deed or signing a will) in order for the agreement to be valid.  In the employment sphere, you may be required to have someone witness your signature when entering into an employment contract or settlement agreement which is a deed.

Recently a client, who was abroad, asked if I could witness him signing an agreement if we had a FaceTime video call.  This question had me flummoxed and I felt compelled to check what the law on the execution of deeds actually says.

The law

1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 and section 44(2)(b) of the Companies Act 2006, state the person signing the deed must do so in the “presence” of the witness.

Having regard to the Oxford Dictionary definition of being “present” this refers to being in a particular place.   Clearly, I was not in the same place as my client so I advised that he had to find someone else to assist.

However, is physical presence really necessary?  The aim behind this is to have someone who can confirm (if necessary) to a court that the individual concerned signed the document.  With video calling, document and screen sharing technology and encrypted signatures – surely it is now possible for a witness to provide such confirmation without having to be physically present.  It leads me to wonder if there would ever be a situation in which some form of AI would be able to satisfy the witnessing requirements?

In my practice, most agreements are now finalised electronically and I seldom have regular face to face contact with clients. Therefore, requiring someone to be physically present to witness someone to sign an agreement feels so yesteryear.

What are your thoughts?

Algorithms, diversity and the tech industry – why we need to get this right!

I recently watched an excellent ted talk by Joy Buolamwini regarding her fight against algorithmic bias and why it matters.  Put simply, her talk considered the issues arising from a lack of diversity in tech e.g. that algorithms can exhibit unintended racial or gender biases of the largely White, Asian and male population of the tech industry.

Since we are in the midst of a fourth industrial revolution – with artificial intelligence at the core – we need to be able to trust in the veracity of the data produced by algorithms.  To minimise the risk of unconscious biases infecting the coding of algorithms, we need to ensure that there is diversity in the tech space.

James Damore (formerly of Google) complained in his now infamous memo that the focus on diversity in the technology sector is creating an “ideological echo chamber” and that Google’s programmes to increase diversity are politically driven and divisive. For instance, he referred to the fact there are biological differences between the genders which can provide a non-discriminatory explanation for the lack of female representation in tech.

In my view, it is imperative that tech companies focus on diversity so as to ensure that algorithms are fit for purpose. I do not want algorithms created to help sift through prospective job applicants to reflect the biased views of those who developed them e.g. weeding out women or those from certain ethnic or class backgrounds because of their perceived inferiority and I am sure I am not the only one. So while I am optimistic about the role AI will play in the future, we cannot ignore that algorithms will simply reflect the views of those who create them.  Therefore, it is of utmost importance that those who code reflect all of us – not only on the grounds of race and gender but on any other characteristics which are likely to shape how we interact with the world such as disability, age, class, sexual orientation, religion or philosophical belief.

Artificial Intelligence, automation and the future of work

You would be hard pressed not to have read an article or heard something about the rise of artificial intelligence and how we mere humans may render ourselves unemployable in the not so distant future.  I am not so pessimistic.  Having recently read Rutger Breman’s “Utopia for Realists”, I am persuaded by his argument that we lack the imagination at this stage as to the type of jobs people will be undertaking in the future.  Anecdotally, I do not recall ever hearing anyone at school talk about wanting to be a mobile app designer or Facebook advertising specialist (the defence rests).  However, I acknowledge that with the growing use of artificial intelligence and automation the types of work we are currently performing will soon need to change.

The International Bar Association has prepared a detailed report entitled, “Artificial Intelligence and Robotics and their Impact on the Workplace.”  At a whopping 120 pages this report is certainly not a light read but it does provide some thought-provoking insights.

Reports are suggesting that AI has a 50% chance of outperforming human performance in all jobs by 2045. Further, in the 2013 paper entitled: “The Future of Employment: How susceptible are jobs to computerisation?”, the authors contend that it is not only routine cognitive tasks that are at risk (e.g. telemarketers, secretaries and switchboard operators) but also roles which require “subtle judgement”.

So how can we “AI” proof our careers?  My view is that nowis the time that we give both emotional intelligence (EQ) and social intelligence their due reverence. Given that at some point it is expected that AI will be able to outperform any human’s analytical skills (IQ), this is not the case when it comes to interpersonal skills such as empathising, social understanding and persuasion (well at least not yet).  So while I am seeking to learn how to code (if you can’t beat the machines and all that) I will also be working on my leadership and other social skills in order to remain competitive in this ever-changing job market.

 

Diversity in the workplace series: 4 reasons why we shouldn’t ignore social class

The British class system is alive and well; it just continues to evolve. Traditionally there have been 3 social classes in the UK: (i) working class; (ii) middle class; and (iii) upper class.  Whereas perhaps 50 years ago we had a rather static view on class; in 21st century which group one belongs to now means different things to different people.  In fact, according to Professor Savage from LSE, the three-tiered class structure is now obsolete and there are 7 social classes ranging from Precariat (the poorest and most deprived social group) to the Elite (the wealthiest and most privileged group).  There is a social class calculator which can be used to determine what group you belong to.

Why does this matter?

Class is currently not a protected characteristic under the Equality Act 2010.  This is despite research suggesting that social class discrimination is rife. Yet there does not appear to be any public appetite for a legislative change.  Despite this, I set out below 4 reasons why I we believe that we need to tackle social class diversity in the workplace.

4 reasons why we shouldn’t ignore class when considering diversity in the workplace

  1. Because it makes good business sense: It is now considered a truism that diversity in the workplace is a good thing.  According to the Work Foundation, it can lead to improved performance, improved employer image, improved brand awareness, an increase in creativity and innovation, as well as providing an environment where customers feel at home.  All of the above is deemed to give diverse organisations a competitive advantage.  So if we recognise that diversity as a concept is good, there is no reason not to include different social classes into the mix.
  2. Because it has a big impact on job prospects and career development: According to Mr Savage’s research, Elites unsurprisingly dominate high-paid jobs. For instance, research has shown that in 2014 70% of jobs offered at top law, finance and accountancy firms were given to individuals who were privately educated.  Further, it is not only that the Elites dominate in highly paid jobs; their children tend to earn more in the top industries than those whose parents were not in high-salary jobs.  So even if someone from a lower socio-economic class is able to get a seat at the table with their Elite counterparts, they will be less well fed.
  3. Because it is self-perpetuating: According to a 2010 report by the Organisation for Economic Cooperation and Development (OECD), the UK was one of the worst countries for certain measures of social mobility; with parents’ wealth being a strong influencing factor on a child’s prospects of higher education and a good salary. If we wish to encourage social mobility, we cannot ignore the impact of a person’s class.
  4. Because we are limiting innovation: Given that research indicates that  unconscious biases infect recruitment processes, I suspect that a number of talented individuals are not being recruited or promoted because of their perceived social class.  Do we automatically discredit someone who speaks with a regional dialect or uses slang as part of their vernacular as lacking the necessary skills to perform a role? If so, are those implicit judgements valid and/or credible?

Summary

Whilst I believe a diverse workforce on the grounds of social class would be good for business, we also cannot ignore the social implications. Employment plays a vital part in social mobility as well as a person’s wellbeing and self-esteem.  Given that the gap between rich and poor in the UK continues to widen, if we do not start to take class issues seriously we could end up living in a very divided Britain.

Absent without leave….

Sorry I have not posted a blog in a while but who can believe we are already in the month of May?  When I am not writing here, please do check out Hine Legal’s newsletter as I am regular contributor there.  I can also be found on Twitter, LinkedIn and now recently, Instagram.

My inability to post regularly has not been due to a lack of activity.  I set out below a flavour of the things I have been up to:

  • I attended the Agile Working Event where one of my fellow partners, Jane Wheeler, gave a very interesting presentation on what is meant by “agile working” and why it benefits employers as well as employees;
  • I provided an Employment Law Clinic at Wayra UK’s clinic to its current cohort. For the uninitiated, Wayra UK (which is part of Telefónica’s Open Future) is a leading start-up accelerator. Offering SMEs with guidance on employment law is a key interest of mine and in addition to running another session at Wayra’s swanky offices in June, I will also be giving a talk for the Institute of Directors Youth forum on such issues in October.
  • I was recently speaking about all matters Agile Working related on the People Platform show, Channel radio. I really enjoyed the experience and hope to be able to do more of this in the near future. If you are not clear on the distinction between flexible working and agile working – please review my article on this.
  • Upcoming: I will be speaking at Silver Shemmings breakfast seminar on 16 May about Employment Law Considerations relevant to the construction industry. If you would like to attend please do as it’s free.  Please click here for further details.

I will be posting a 5 part series on diversity in the workplace, which is an area that I am very passionate about. It is my position (perhaps unsurprisingly for an employment lawyer) that diversity in the workplace is a good thing but that we tend to have quite a straight-jacketed view as to what a diverse workplace looks like.

The 5 part series will look at the following:

  1. Class;
  2. Disability;
  3. Ethnicity;
  4. Gender; and
  5. Personality type.

I’ll be publishing my thoughts on class in the workplace next Monday.   In the meantime, what social class do you think you belong to?  I attach a link to a social class calculator which I shall discuss in the upcoming blog post.

Until the next instalment.

Fudia

Personality tests and employee engagement -four reasons to give personality tests a try

I am a fan of personality tests and often use them as a personal development tool.  However, they are maligned by some due to their apparent lack of scientific rigour. In my attempt to encourage their use, I contend that from an employee engagement perspective, they can be helpful for the following four reasons:

  1. Encouraging self-awareness: According to Forbes, “employee engagement” is the “emotional commitment the employee has to the organisation and its goals”. In my view, an employee needs a certain level of emotional intelligence to determine their motivators.  Personality tests ask thought provoking questions – which even if you do not agree with the final conclusion of the test – provide an opportunity for introspection and an assessment of one’s own strengths and weaknesses.
  2. Career development: This goes hand in hand with the above point.  With self-awareness goes the ability to take control of one’s career rather than just being lead by chance and circumstance and with however an employer sees fit.
  3. Strengths based team structures: Some organisations are using personality tests to ensure that team members are working in a manner which best uses their strengths. For example, there is a personality test model by Talent Dynamics which focuses on looking at the core strengths of each individual to determine how their skills could be best utilised within a team structure. Enabling staff to work “in flow” i.e. where they are fully engaged as much as possible, will clearly assist in creating healthy work environments.  This will, in my view, clearly have a positive impact on organisational productivity.
  4. Reducing workplace conflict: Many personality tests recognise two key temperament types: extroverts and introverts.  Succinctly put, extroverts draw energy form the world around them and therefore typically enjoy social interaction and teamwork.  Conversely, introverts draw energy from their own personal worlds and can therefore prefer solitude and working alone. This difference can create tension in workplaces where either the extrovert or introvert does not feel that their needs are being met.  Therefore, an awareness of an employee’s preference for extroversion or introversion can help reduce workplace conflicts.  For instance, the  extroverted manager who may enjoy lots of team meetings will perhaps be more sensitive towards one of her introverted colleague’s need for more alone time without taking offence.

I am not suggesting personality tests are full-proof nor would I advocate for them to be used as recruitment tool for determining who should be appointed.  Instead, such tests can be used as part of the  on-boarding process when hiring new staff, or on a periodical basis such as at appraisals or promotions to see if people’s preferences have changed over time.

I would recommend that everyone take at least one personality test in life – even the greatest cynics.  At worse it could be a waste of 15 minutes whereas the benefits of better self-awareness could be manifold.

So try one –I would love to know your results!

 

Is politics the new office taboo?

At present political life is very binary: either you are a Remainer or Brexiteer, a fully-fledged member of the Alt-Right or a Social Justice Warrior.

For example, the EU Referendum result has highlighted huge divisions in the UK on a number of grounds including but not limited to age, social class and educational background. In fact families have been divided based on how members voted. President Trump’s Executive Order to suspend its refugee programme and ban entry to persons from 7 mainly Muslim countries is having a similar impact. Those in favour of the Executive Order are being accused of islamophobia and those against of not caring about national security: there is no room for grey.

Given the nature of the political discourse at the moment it is not difficult to envisage such debates creating issues in the workplace. For example, heated discussions on immigration and national security could lead to complaints of harassment, bullying and discrimination on the grounds of religion or belief contrary to the Equality Act 2010.

Further the law changed in 2013 so that no qualifying length of service is required by an employee who is dismissed because of (or the principal reason for dismissal is) their political opinion or affiliation. Will we see an increase of claims brought on this basis?

Consequently, not only can heated political debates create unhappy work environments; they can also lead to employment claims.

So what can employers do to minimise the risk of such disputes arising? I would recommend the following:

• Reminding staff of acceptable workplace behaviours: In addition to Disciplinary and Grievance procedures, staff should be required to review Equal Opportunity, Email/Social Media and Anti-bullying and Harassment policies. If no such policies exist they should be implemented. Employers should also offer training on these policies/procedures to ensure that all staff understand their contents to aid compliance.
• Effective use of such policies: In order for employers to be able to defend themselves from claims of discrimination on the grounds of vicarious liability, the above-mentioned policies need to be actually used. For example, if, an employer becomes aware of a member of staff posting an offensive message on social media which could bring it into disrepute, action must be taken (in accordance with the relevant policies) in a timely manner.
• Consistency is key: Further to minimise the risk of complaints of unfair treatment, employers need to ensure that they respond to all complaints in a consistent manner e.g. in accordance with the relevant policies.

So while we live in a period of peak political polarisation, staff should be reminded that in a work context they must exercise their freedom of speech judiciously. Otherwise this could lead to a spike of politics-related employment disputes.