Human Resources Briefing – September 2023

Podcast: Artificial Intelligence and HR

Since the invention of the Internet, no technological development has received more attention than artificial intelligence (AI). ChatGPT is just the most well-known of a series of highly advanced computer systems that promise to revolutionize the way we all work (or threaten our very existence). Human resources and in-house employment legal teams must grapple with these rapidly evolving technologies that impact the entire employment lifecycle. In this month’s podcast, Employment Associate Amy Powell and Legal Technology Manager Oliver Jeffcott join Matthew Ramsey to discuss this fascinating field. Listen to their discussion.

Discrimination: What are “all reasonable steps”?

Our August article on sexual harassment discussed the government’s proposals to reform harassment and sexual harassment laws. One important change is the creation of a clear duty on employers to take all reasonable steps to prevent harassment by third parties and sexual harassment in the workplace. Although the Equality and Human Rights Commission provides some useful guidance on what taking all reasonable steps actually looks like (and we have an updated version of that guidance) We hope that the new law will be enshrined once it completes its consideration in Congress), and there are relatively few court decisions on this subject. This makes recent employment tribunal decisions particularly interesting. The employer has an equal opportunity, anti-harassment policy, a zero-tolerance approach to violations, encourages reporting and investigation of concerns, and has forwarded the policy to the agency supplying the workers. The court found that all of this was commendable, but not sufficient to show that all reasonable steps had been taken to prevent a claim of discrimination on grounds of gender reassignment (in this case). It wasn’t.

As examples of other steps that could and should have been taken, the court listed (among others):

• Keep your policies up to date.
• Focus on inclusion, not just equality.
• Ensure staff read and understand policies, including regular training on equality, diversity, inclusion and inclusive communication.and
• Setting up employee groups and networks (such as BAME and LGBTQ+ staff networks) for employees and their allies from those groups.

Employers here were so large and had such good resources that the same assessment of what was reasonable wouldn’t necessarily be made for small businesses. Nevertheless, this decision requires that all reasonable steps be taken to go beyond putting policies in handbooks and that employers of all shapes and sizes, in all industries, need to be proactive. It emphasizes that it is something.

Non-Disclosure Agreement (NDA): Use and Abuse

The unusually restrictive NDAs exposed in the Harvey Weinstein scandal are forcing lawyers and clients to re-evaluate how they use NDAs, nondisclosure clauses, and nondisparagement clauses, especially in settlement agreements. Regulators have not been slow to set their own expectations, with both the SRA (Solicitors Regulation Authority) and the FCA (Financial Conduct Authority) drafting information on what can and cannot be included. It provides detailed guidelines. The SRA has now published the results of a survey of a range of law firms into the use of NDAs. The most important thing to note is that the lawyer and HR team drafting the settlement agreement should be familiar with her SRA’s warning notice requirements regarding NDAs. Although the SRA clearly only governs lawyers and law firm HR teams, the warning notice guidance applies to all sectors. For financial services, teams will also need to consider the FCA’s own rules regarding whistleblowing and settlement agreements.