The Business Exchange Swindon & Wiltshire Edition 44: Aug/Sept 2019 | Page 25

Angela West, Head of the Employment Department at Goughs Solicitors reviews the top three areas of Employment Law that everyone is talking about in 2019. commercial www.goughs.co.uk 1 Non Disclosure and Settlement Agreements (NDAs) Non Disclosure Agreements (NDAs) have been rarely out of the news. This is particularly true in the context of the hashtag ‘Me Too’ movement and the alleged harassment cases that accompany it. From an employer’s perspective however, NDAs are very common in many commercial deals because they are extremely useful for enabling business to be done, deals to move on, disputes settled and litigation avoided. For example if a company is developing a project, product or service it may want a key supplier or adviser to enter into a NDA so that it does not lose its commercial advantage with its idea. From an Employment Law perspective, non disclosure provisions are highly common in Settlement Agreements, with their purpose being to make it a fundamental contractual provision that confidentiality is maintained, thus preventing an employee (and if reciprocated, the employer) from discussing or disclosing the existence and content of the Agreement, and the circumstances leading to the Agreement being offered. 2 GDPR – An update and consequences of non-compliance The General Data Protection Regulations (GDPR) came into force on the 25th May 2018 and were very heavily promoted at the time. But what many people may not be as aware of is that the UK's new Data Protection Act 2018 arrived on the same date. Essentially the legislation recognises that through computer power we can now transfer, analyse and use massive amounts of personal and other data, so that the data itself has become an extremely valuable tradable commodity. Just over twelve months on has there been much of a change in the way we do business? The truth is that whilst the regulatory and legal environment has changed massively, a change in behaviour and culture will take much longer. However for those that have failed to make the required changes, the consequences can be quite significant. A wide range of interventions and fines have been imposed by the Information Commissioners Office (ICO) ranging from: The Government has recently announced in a written statement to Parliament that there is a need to address the potential abuse of NDAs. The plans, to be included in a consultation, could lead to new legislation that would significantly alter the way non disclosure provisions are drafted and enforced. If introduced this may well impact on an employers decision to enter into ‘Protected Discussions’ or Settlement Agreements generally. • Just under a £1,000 fine (including costs) for an employee accessing electronic clinical records of 228 patients and 3 staff members outside of their job role. • An £80,000 fine for an organisation for making marketing calls to 84,347 numbers registered with the Telephone Preference Service (TPS). • A fine of £500,000 for a leading social networking site for sharing data for political purposes. If you are an employer and are thinking about the pros and cons of drawing up a NDA or a Settlement Agreement and would like some advice on how best to move forwards please do get in touch and we will talk you through your options in a practical and pragmatic way. The examples above highlight the need to manage the risks posed by data theft, inadequate systems, unsupervised staff and a number of other key employment issues that you need to be aware of. At Goughs our employment lawyers work closely with many businesses, helping them understand and comply with GDPR rules and regulations. If this is an area of concern which you would like to discuss please do contact me today. As can be seen there is a lot of change expected in Employment Law. To keep abreast of these changes or to discuss any concerns you may have, please contact our employment team on 01249 444499, email [email protected] to subscribe to our employment e-alert bulletin or visit our website www.goughs.co.uk. 3 Drug and alcohol testing in the workplace We are often asked if such testing is lawful. Like most things if the action is not proscribed by law and the individual consents then the proposed action is lawful. So from an employer’s perspective provided the organisation carries out the testing in the appropriate way then your actions should be deemed reasonable. If you are thinking of carrying out testing you may wish to consider the points below: • Have a good business case for carrying out the testing. • Ensure that any information or data in relation to any testing is secure. • Ensure a safe place of work and safe systems of work for your staff. • Ensure that your staff are not a danger to themselves or others. • Set out a policy that deals with the business case and includes the areas mentioned above. In order to deal with situations where the threat of substance abuse may be a concern, then set out a policy that testing can be almost non-invasive such as urine and hair testing. If you are concerned about the possibility of substance abuse by your employees, inside or outside of the workplace, and you require more information please do not hesitate to contact our employment team today. And finally... Many commentators have speculated that this year we will see the biggest reform of Employment Law in 20 years. Much of this centres on the recent “Good Work Plan”, which sets out the Governments vision for the future of the UK labour market. Proposals include (to name but a few): • Changing the rules on continuity of service. • Reform of agency and zero hour workers rights. • Streamlining legislation regarding the employment status test. • Increasing the tribunal’s ability to fine employers who are demonstrated to show ‘malice, spite or gross oversight’ in breaching employment rights.