EAT approves use of indiscriminatingly inappropriate banter? Not really (UK)

Office BanterIf I told you that calling a colleague with links to the Traveller community a “fat ginger pikey” might not be harassment, you would be forgiven for picking up the phone to the Solicitors’ Regulation Authority. That is, however, one of the points we can take away from the EAT’s decision in Evans v Xactly Corporation Limited, and it is difficult to fault the legal reasoning.

Mr Evans was employed as a sales representative by Xactly, a global software company. He was dismissed after 11 months on performance grounds and brought proceedings for harassment, victimisation and disability discrimination, all of which failed. Of particular interest are the harassment claims. The specific incidents he relied upon were being called said “fat ginger pikey”, “salad-dodger”, “fat Yoda” and “Gimli” (the latter being the dwarf from Lord of the Rings, so I’m told) during the course of his employment.

Evans claimed that references to his weight amounted to disability-related harassment (he has type 1 diabetes, which, he claimed, caused his weight to increase). The “pikey” reference was apparently race-related, given Evans’ close links with the travelling community (both Romany Gypsies and Irish Travellers are protected as ethnic groups under the Equality Act). The comments were unwarranted, he said, and had caused him distress.

A slam-dunk claim, right? Not quite.

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Prepare to have your say on the UK’s future immigration system

How will your business be affected by restrictions on hiring EEA nationals from 2021?  The Government has said it will publish an immigration White Paper in the coming weeks. This should provide details of its intended post-Brexit immigration policy. We are hoping that businesses will be given a formal opportunity to comment on the proposed policy and raise concerns. Given that the proposals are likely to have a significant effect on future EEA migration to the UK, our Business Immigration team will be supporting clients and contacts to understand and respond to the White Paper. If your business is concerned about the UK’s future immigration system, register your interest with us now and we will send further guidance on the proposals in the White Paper and how to respond to it, once it is published. In the meantime, given that businesses may only have a brief window to respond to the White Paper, we have listed some key points to consider now with a view to including these as part of any meaningful representations (whether you choose to submit these through us or independently). Further details can be found here.

How some Poles get to celebrate 100 years of independence

November 11 is Polish Independence Day. In what historians refer to as the partitions, Russia, Austria and Prussia gradually annexed parts of Poland, so that it ultimately disappeared from the map of Europe altogether for 123 years, only reappearing as an independent nation in the aftermath of WW1, in 1918. On this day each year Polish people take part in a variety of events such as military parades, “national runs” wearing the official state colours, 100-push-up challenges for gym lovers and other lunatics, fairs and many other activities. They also indulge by tradition in baked goose with apples. Inevitably some get carried away and choose to celebrate more enthusiastically, in ways not always fully appreciated by the law enforcement agencies (though let us not spoil the moment by dwelling on that).

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Direct line to remedy for whistleblowers – co-workers could be on the hook and it won’t be cheap! (UK)

Admittedly, an employee is more likely to bring a claim against their employer; after all, usually it is the one with the cash. But as last month’s case of Timis and another v Osipov shows, that need not always be the case.

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Unanimous Supreme Court:  ADEA Applies to All State Employers, Regardless of Size

In its first opinion of the 2018 term, the U.S. Supreme Court held in Mount Lemmon Fire Dist. v. Guido, No. 17-587, slip op. at 1-7 (November 6, 2018) that the Age Discrimination in Employment Act (“ADEA”) applies to all political subdivisions of states, regardless of size, rejecting an argument that the 20-employee jurisdictional threshold applicable to private employers also applies to state government employers.

Background

In Mount Lemmon, the employer, a political subdivision of the State of Arizona, laid off two firefighters, both of whom were over age 40.  The two employees sued the Fire District under the ADEA, which prohibits covered employers from discriminating against employees and applicants on the basis of age.  The ADEA applies to private employers, provided the employer employs 20 or more employees.  The ADEA also applies to states and political subdivisions.  However, the language of the statute relating to state employers does not specifically reference the 20-employee requirement:

“The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State….” Continue Reading

Employee Data Subject Access Requests in the UK: Part 4 – how to deal with mixed data

In part 1 of this blog series, we asked how employers facing a Data Subject Access Request (DSAR) should be dealing with ‘mixed data’ cases, i.e. when a third party’s personal data is intertwined with that of the requester?

Mixed data comes in many forms; for example, an email from John to a colleague saying what he really thinks about Mary’s performance would contain both John’s personal data (his opinion) and the personal data of Mary (information is no less data for its being opinion rather than (necessarily) fact). Another example of mixed data is found in the recent case of Dr B v General Medical Council (GMC), where an investigation report contained the personal data relating to both a Doctor and that of his patient (more on that case below).

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Common Themes and Key Points From Our Retail Brexit Trade Briefing (UK)

Last week our Retail Industry Group hosted a ‘Retail Brexit Trade Briefing.’ There was a very lively discussion delving into the opportunities and challenges that Brexit may have for the retail trade. The main concerns of delegates included:

  • How to retain EEA nationals (many businesses reported having a high percentage EEA workforce)
  • How to attract and retain EEA nationals in a period of high employment and in what is perceived by many as a ‘hostile’ immigration environment
  • What can we do to fill roles post Brexit
  • Will we see wage inflation as we struggle to fill roles

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Doing Business In California – When Can an Out-of-State Employer’s Non-Compete Provision Stand?

Most companies doing business in California are aware of California’s long-standing public policy in favor of employee mobility over an employer’s ability to impose a provision prohibiting an employee from going to work for a competitor post-termination, which is embedded in California Business & Professions Code Section 16600.  Particularly where the employer is headquartered outside of California, in a state where non-competes are enforceable under the appropriate circumstances, some employers have attempted to implement choice-of-law clauses in employment agreements with California employees that purport to require any dispute between the parties to be governed not by California law, but rather by the law of a state more favorable to the enforcement of non-competes.  As a general rule, California courts steadfastly refuse to enforce such clauses, stating that the strong public policy and statutory prohibition against non-competes in California overrides any contractual provision designating another state’s law as controlling as to the validity of a non-compete clause.  That said, if the employment agreement also includes a forum selection clause requiring any dispute to be heard in another state, some California courts do permit the action to be transferred to another state, leaving the employee to rely on the courts of that state to apply California choice-of-law principles to find the non-compete provision invalid. Continue Reading

Webinar: From #MeToo to Marijuana and Everything in Between: An Update on US Employment Law in 2018

Webinar

Squire Patton Boggs presents a webinar to provide an overview of the past year’s most significant labor and employment decisions and emerging areas of the law in the United States.

On 5 December 2018 at 4 p.m. GMT (5 p.m. CET, 11 a.m. EST, 8 a.m. PST) Jill Kirila, our US Labor & Employment Practice Group Leader, will highlight employment law court decisions and legislative and regulatory changes, as well as offer insight on forthcoming decisions and practical tips to help you manage your workplace.

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Employee Data Subject Access Requests: Part 3 – DSARs and proportionality – limiting the search (UK)

Some DSARs can be wonderfully straightforward:

“Can I have a copy of my personnel file?”

“Absolutely, here you go”

“Can I have a copy of the notes from my appeal hearing?”

“Of course, all yours. Any time”

However, a large number of DSARs submitted by employees are far more taxing:

“Can I have all personal data you hold about me since I started working here 10 years ago”

“Erm” [panic sets in, cold sweat envelops HR Manager.]

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