New guidance on agency workers, guidance on confidentiality agreements and Employment Tribunal statistics are covered in October's Quick fire.

Guidance on confidentiality agreements

New guidance has been published by the Equality and Human Rights Commission (EHRC) to clarify the law on confidentiality agreements and how these can be used in discrimination cases.

The guidance, aimed at employers and employees, follows recent government proposals to regulate the use of workplace confidentiality clauses (see our previous Quick Fire item). In its response to a March 2019 consultation on the use of such clauses, the government had promised new guidance to clarify the law and set out good practice.

The guidance concerns the use of confidentiality agreements that could stop a worker speaking about any act of discrimination, harassment or victimisation which contravenes the Equality Act 2010. It will assist employers in understanding how and when they can use confidentiality agreements legitimately, including in a settlement agreement or a COT3, and when such agreements will not be enforceable.

As good practice, the guidance suggests that employers should consider on a case by case basis whether a confidentiality agreement is needed. If a template settlement agreement is used, confidentiality clauses should not be included in the template as standard but only when there is a clear reason for needing one. The wording should not go beyond what it necessary and appropriate in the circumstances of the case. The guidance also suggests that large employers and those who use a significant number of settlement agreements should keep a central record, to allow them to monitor potential systemic discrimination issues in their organisation.

Latest Employment Tribunal statistics

The Ministry of Justice has published the latest employment tribunal quarterly statistics for the period April to June 2019. The number of single claims has increased by 14% compared with the same period in 2018, with the outstanding case load increasing by 19%. Of most concern to tribunal users, the mean age of cases at the time of disposal increased by five weeks to 33 weeks. This certainly reflects our experience of the time it is taking for cases to be listed and heard by tribunals.

Annual statistics for the year 2018/19 have also been published, showing that a total of 121,111 claims were accepted by employment tribunals compared with 109,685 in the previous year. The level of compensation for unfair dismissal and all forms of discrimination, with the exception of age, has decreased. The median award for a successful claim of unfair dismissal was £6,243, down from £8,015 in the previous year. For disability discrimination (where the highest awards of compensation are often made), the median award was £12,156, down from £16,523.

New guidance on agency workers

The Department for Business, Energy and Industrial Strategy has issued revised guidance on the Agency Workers Regulations 2010 (AWR), aimed at hirers of agency workers and the recruitment sector.

The guidance has been updated to reflect the repeal of the Swedish derogation, which takes effect from 6 April 2020. This derogation has allowed an exemption from the equal pay provisions under the AWR for agency workers who are engaged under a permanent contract of employment by the agency and who are paid between assignments. As part of government reforms under its ‘Good Work Plan’, this derogation will no longer be available.

Additional guidance has been published on the new requirement for employment businesses (agencies) to provide agency workers with a ‘Key Information Document’. This is intended to give agency workers more immediate access to key pay-related information before agreeing terms with an employment business. This requirement will also take effect from 6 April 2020.

This article is from the October 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.