A round up of the latest HR and Employment Law updates and related stories.

CUSTOMER-FACING LANGUAGE EMPLOYEE REQUIREMENTS IN 2016

The consultations have recently ended (8^th December 2015) so we must now await the outcome regarding the latest English language requirements for workers.

The latest Immigration Bill proposes requirements that all “customer-facing” public sector workers will need to ensure “sufficient fluency in English or Welsh in public service delivery” with “a command of spoken English or Welsh sufficient to enable the effective performance of their role.”

The initial research has determined that there will be various benefits to this proposal including:-

– an increase in public confidence – citizens have the right to expect that customer-facing public sector workers will be able to comprehend their needs well and offer assurance that their requests will be dealt with quickly and appropriately.”

– “reducing communication difficulties” which will lead to “higher productivity and retention, as well as promoting integration outside of work.”

– safety and efficiency on the basis that the “effectiveness of one-to-one interactions… relies on trust, understanding and honesty.” The specific illustration of this provided was in healthcare where a “lack of fluency in English or Welsh, or reliance on other staff to interpret, inhibits effective care and service” such as a “misinterpretation of doses or symptoms” which have a “serious impact on patient safety.”

If the requirements become legislation then organisations, including the NHS and armed forces, will have to comply with a code of practice which will apply to both new and existing employees. Moreover, this will inevitably ultimately have an impact on those organisations which contract with NHS and eventually all employers with “customer-facing” employees.

Based on the current proposed code, employers will need to review their policies and procedures involving at least “customer-facing” employees to include:

Recruitment and selection

You will have to make sure that recruitment and selection is compliant which, for example, includes changes to advertising to ensure that candidates are aware of language requirement. However, this must of course be balanced against the requirements of the Equality Act 2010 to avoid any discrimination, together with the need to show consistency in all “customer-facing” roles. For example, you will need to take care to ensure that you don’t show bias towards those who speak English or Welsh as a first language and will still need to take into account any “reasonable adjustments” for those who have a disability which impacts on their speech (for example learning difficulties).

There will of course be a need for an objective specific evaluation of a candidate’s language skills against the job specification criteria.

This will result in changes to job descriptions to include language requirements for “customer-facing” roles.

Condition of the employment contract

Changes would have to be made to any employment contracts which do not already clearly stipulate a standard of fluency in English or Welsh are a requirement for the role

Training

As well as training for managers and interviewers, you will also need to ensure that all employees are aware of the requirements and consider the assistance available for existing employees.

Inevitably, you will also need to consider the implications of an employee’s failure to meet the standards of these requirements.

Whilst the results of the consultation are being processed experts believe it inevitable that some changes will be made, so this is one to bear in mind when it comes to reviewing your policies.

IS “BANKING” CONFIDENTIAL – BREACHING CONFIDENTIALITY?

The case of Farnan v Sunderland Association Football Club Ltd [2015] EWHC 3759 (QB) involved a court claim for damages for wrongful dismissal brought by Mr Michael Farnan against his employer, Sunderland Association Football Club Ltd (“Sunderland”).

The case related to various breaches of confidentiality by Mr Farnan which ultimately resulted in his dismissal from employment by Sunderland. Mr Farnan made two claims;
– one to an employment tribunal for wrongful dismissal and
– a court claim for damages for wrongful dismissal (including the fact that Mr Farnan was due a substantial bonus payment).

Mr Farnan had entered into an agreement with his employers which included a duty of confidentiality against disclosing confidential information obtained during his employment. One of the issues related to what was described as Mr Farnan “banking” confidential information for private purposes using his own or his wife’s email address.”

The court accepted that during his employment Mr Farnan emailed Mrs Farnan who provided him with administrative support at home. However, once Mr Farnan had concerns relating to his employment he started to email his wife with important confidential information and documents, such as the minutes of relevant meetings. Mr Farnan took the view that this was not a breach of this duty of confidentiality and that;

– it was “to protect his own interests in the event of a dispute” with his employers and
– one of his employer’s Board of Director’s (Mr Quinn) had advised him to “carefully file or “bank” all proof of the work I had done in procuring the IIA sponsorship for safekeeping in anticipation of this situation arising.” This, Mr Farnan said, satisfied a clause in his agreement which said that the use of confidential information could be authorised by the “board” and this is what had happened.

The court disagreed and dismissed Mrs Farnan’s claims. The Court found that Mr Farnan had breached his duty of confidentiality on several occasions, including the “banking” confidential information for private purposes using his own or his wife’s email address.”

Employers should now:
– check their confidentiality clauses to ensure that they are clear and
– where necessary inform employees and contractors of their duties and from whom specific advice can be obtained if there is any doubt as to the duty of confidentiality

SIGNIFICANT CHANGES TO ZERO HOURS CONTRACTS/WORKERS

January 11th 2016 sees significant changes to zero hours’ contracts/workers brought about by Section 153 of the Small Business, Enterprise and Employment Act 2015 which makes changes to the Employment Rights Act 1996 and accounts for the Exclusivity Terms in Zero Hours’ Contracts (Redress) Regulations 2015. The main changes mean that;

– Exclusivity clauses – clauses in a zero hours’ contract which prohibit zero hours’ workers from either doing any other work for someone else or requiring them to get permission/consent from their zero hours’ employer are no longer enforceable. zero hours’ workers cannot be unfairly dismissed “subjected to any detriment” for any failure to comply with any form of such an exclusivity clause

Any employers who have workers on a zero hour contract should:
– examine their existing contracts and delete exclusivity clauses
– make relevant changes regarding exclusivity clauses to any proposed contracts
– inform any zero hours’ workers who are subject to zero hours’ contracts with exclusivity clauses regarding the changes in legislation.

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