Disputes 2018: Employment litigation

2018 is likely to see an increase in employment disputes, with the obligation to publish gender pay reports and scrutiny of the role of Non Disclosure Agreements (NDAs).

In brief

  • The obligation to publish gender pay reports for large employers is likely to see an increase in equal pay claims and enforcement action by the Equality and Human Rights Commission (EHRC).

  • The scrutiny of the use of non-disclosure agreements as part of settlements of employment claims may see pressure for legislation over their use, and more employees willing to breach them, following the Weinstein scandal.

  • Appeals in early 2018 of two decisions on shared parental leave pay will clarify what will constitute discrimination.

Gender pay reporting

Most will know that the deadline for publishing the first data set is 04 April 2018 for large employers in the private sector, and many will have seen the Financial Times investigation and report on the accuracy of some published figures. With the publication of this information, it is likely that we could see an increase in disputes relating to gender pay both internally through pay grievances, collectively and via equal pay claims.

The EHRC has published a consultation paper (open until 02 February 2018) identifying how they plan to take enforcement action. These proposals, as well as the interest we have seen already in examining reported figures, demonstrate the need for employers to take care when collating figures for publication. 

Shared parental pay 

In July 2017, we reported on the case of Ali v Capita in which an employee won a discrimination claim because he received less shared parental leave pay (SPLP) than a woman on maternity leave. A previous case reached the opposite conclusion at tribunal in 2016 (Hextall v Chief Constable of Leicestershire Police). Both are going to the Employment Appeal Tribunal and we are expecting decisions early in 2018.

If the Ali decision is upheld, employers that offer less pay during shared parental leave than maternity leave may find that employees are citing the decision in Ali in support of any challenge to this practice. Employers should watch out for the appeal decisions in both Hextall and Ali and take advice accordingly.

Non-disclosure agreements

On Thursday 05 October 2017, a story broke in the New York Times that alleged Harvey Weinstein had been sexually harassing women for decades; this case sparked a reaction unlike any before. Almost 20 years ago, Zelda Perkins, Weinstein’s former assistant, signed a non-disclosure agreement in relation to allegations of sexual assault against Mr Weinstein. She broke her silence late last year, in breach of the gagging order, and called for a review of how non-disclosure agreements are regulated.

Employers frequently require employees not to disclose details of allegations and Employment Tribunal claims when signing settlement agreements. But might the law change as a result of Ms Perkins speaking out? And might other employees now feel obliged to speak out in breach of non-disclosure agreements and clauses? Employers will need to consider carefully whether non-disclosure clauses remain advisable and how they wish to approach any breach of such clauses.

Abolished Tribunal fees

Finally, employers will be aware that on 26 July 2017 the Supreme Court declared Tribunal fees to be unlawful (since they were introduced) because they hinder access to justice. As a result, Claimants no longer need to pay a fee to make an Employment Tribunal claim, which has led to an increase in the number of claims being made and currently seems to be resulting in a backlog of cases before the Employment Tribunal.

What it means for you

The employment law landscape shows all the signs of becoming more litigious in 2018. Employers will need to be alive to relevant decisions of the Court of Appeal and the Employment Appeal Tribunal, but also monitor the public debates concerning gender pay equality and the use of non-disclosure agreements. Employment practice may be shaped as much by public sentiment as by developments in the law in 2018.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.