Employment update | Top three in 3 minutes | 29 October 2019

1. Understanding and benefitting from a neurodiverse workforce

Understanding of neurodiversity is in its infancy, even though it is estimated that as many as 1 in 10 people are neurodivergent. This means most employers already have neurodiverse workforces, job applicants, customers and clients. Historically, attention has focused on the challenges posed by employing neurodivergent employees, rather than the valuable skills thinking differently can bring to a business. Creativity, lateral thinking and development of highly specialised skills are just a few of the positive attributes commonly displayed by neurodivergent employees. In a digital age of increased automation, neurodiverse employees have skills that will be needed by the workplace of the future; providing the innovation and creativity that thinking differently unlocks. Action Employers need to understand how to attract and support neurodivergent employees to fill skills gaps and meet future workplace requirements. Reviewing job descriptions, recruitment practices and promotional opportunities is a good starting point, as is publicising your commitment to supporting the neurodivergent community. There are also a number of straightforward adjustments that can be made to your working environment and roles and responsibilities to help any neurodiverse employees to do their best work. If you are interested in learning more, Employment Partners Danielle Kingdon and Paul Killen discuss the issues for employers to consider in this short video.

2. Take care with 'legally privileged' communications; and avoid careless conversations

Legal advice privilege allows an employer to obtain legal advice on what to do in a situation without fear that those communications will be seen by others, for example through disclosure in tribunal proceedings or as part of a data subject access request. Two recent cases have highlighted the importance of ensuring that privilege is maintained.

• Last year, in a concerning decision for employers and employment law advisers, the Employment Appeal Tribunal found that an email between two in-house lawyers lost its legally privileged status where it was interpreted as identifying a business reorganisation as an 'opportunity' for the employer to dismiss an employee who had made continuing discrimination complaints. Its purpose was found to be to deceive the individual and the employment tribunal, which was against public policy, and therefore not subject to legal privilege. Reassuringly, the Court of Appeal upheld the appeal, finding that the email simply contained the type of advice employment lawyers give 'day in, day out'; its purpose was therefore not contrary to public policy.
• The Employment Appeal Tribunal recently found that an employer that had waived privilege in respect of two documents (an email and note of advice), could not then seek to maintain privilege in respect of redacted comments by a legal adviser in a third document (a draft dismissal letter). They were all part of the same transaction and having waived privilege in respect of some parts, all three documents were discloseable. It was not open to the employer to cherry-pick from the communications those parts that were in its favour, and withhold the parts that were not, on the basis of privilege. 

Action The recent Court of Appeal decision provides comfort for employers and their advisers but still emphasises the care needed to ensure that legal advice privilege is not undermined; highlighting the potential repercussions, financial and reputational, when privilege cannot be relied on. Employers should also take note that the issue in that case – a 'cloaked' dismissal – appears to have been sparked off by a conversation overhead by the employee in a pub. Due to a lack of confirmed details, that conversation was not allowed to be used in the proceedings, but it does highlight the problematic role careless talk can play. Staff involved in confidential matters should be reminded of the expectations on them. Employers must also ensure that they seek advice before agreeing to waive privilege in any communications. Doing so may well have an unexpected knock-on impact for other documents.

3. Brexit: No Halloween exit but where are we now?

It is now clear that the UK will not be leaving the EU on 31 October 2019. The European Council has agreed to the UK's request to extend the Article 50 period to 31 January 2020. The formal EU written decision is expected today or Wednesday. It is reported that although the extension is to 31 January 2020, the decision will also say that if the Withdrawal Agreement is ratified sooner, the UK leaves on the first day of the month following completion of the ratification procedures. If the Withdrawal Agreement is ratified, what will that mean for employers? There will be a transition period following exit during which the current status quo will be preserved – workers will enjoy free movement in the EU and employers will still be bound by existing EU laws (including decisions of the European Court of Justice). At the end of the transition period, there have been widely publicised concerns by Labour and the unions that the Prime Minister's agreement constitutes a 'massive step backwards' for employment protections – with no legal commitment on future rights. The government has since confirmed additional provisions on workers' rights. Ministers would have to make a statement when any new UK Bill impacted on workers' rights, explaining its compatibility (or not) with EU standards; and Parliament would have a right to be told about any new employment rights introduced by the EU and an opportunity to vote on them. Indeed, the Prime Minister has indicated that that the UK could go further than the EU in terms of employment protection, including consulting on reducing the qualifying period for unfair dismissal from two years to one year and reforming the laws around changing terms and conditions on a TUPE transfer. However, it seems inevitable that despite the Prime Minister's statements of intention and with a longer timeframe for Parliament to consider the Withdrawal Agreement, employment rights will remain an area that is hotly debated with greater reassurances sought. Action Please make sure you are signed up to our Brexit Business Brief written by Osborne Clarke's Head of Knowledge, Nick Thody. Our specialist immigration team can also advise on the latest position for engaging non-UK nationals here and the rights of your UK workers overseas. It also seems likely that a general election will now be held sooner rather than later and will impact on the progress of Brexit and, depending on which political party is elected, may bring more significant reforms to our employment laws.   Did you miss last week's top three? Read the latest developments and please do contact us or your usual OC Contact for any further details.