Employment law 2017 review: another year over...

18 December 2017




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A year dominated by the shadow of Brexit. Despite legislative developments being placed firmly in Brexit's shadow, the courts have made this a landmark year for employment law. The defeat of the Government's 2013 introduction of tribunal fees is now a constitutional law case study being taught to thousands of law students around the country.

Not merely a landmark but a historic judgment. The Supreme Court in in R (on the application of UNISON) v Lord Chancellor, gave the Lord Chancellor a lesson on the constitutional importance of the rule of law. The Supreme Court reminds the Government:

"At the heart of the concept of the rule of law is the idea that society is governed by law… Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other."

As for tribunal fees, their introduction was unlawful on the basis they had the effect of preventing access to justice and were indirectly discriminatory.

The Supreme Court also stated "employment law is characterised by a relatively high level of complexity and technicality". This has been repeatedly illustrated this year with important judgments in areas including whistleblowing, worker status, holiday pay, discrimination and national minimum wage.

We leave the enormity of the Government's defeat on tribunal fees to constitution law lectures for the moment and instead reflect on our pick of the 2017 employment case law lessons to remember.

  • Whistleblowing: The Great British [Interest] Off; Master [behind the] chef; Ramsay's [Workplace] Nightmares
  • Worker Status: Cake Boss
  • Holiday: I'm a worker get me [holiday pay]; The X[tra] Factor
  • On Call Time: The [Sleeping] Night Manager
  • Agency Workers: The Constant [Agency Worker]
  • Termination: Have I got [old] news for you; The Only Way is [not Suspension]; Never Mind the [Process Label]; Would I lie to you?
  • Contract: The Apprentice - You're fired; Temptation Island
  • Restrictive Covenants: Strictly come [drafting]
  • Trade Unions: Countdown; 8 out 10 [Union Members]
  • Tupe: Outnumbered; Peter Kay's [Information] Share
  • Equality: On Her Majesty's [Civil] Service; Dr [Computer says] No; A View to a [pre-existing vulnerability]; [Prove] and Let [Unprove]; The [Part time] World Is Not Enough; License to [Ban?]; The Man with the Golden [Enhanced pay]; Quantum of [Risk]
  • Data Protection: Big Brother; Hunted [Information]
  • The 2017 Awards (drum roll please)…

Whistleblowing

Back in June 2013, the Public Interest Disclosure Act 1998 was revamped. Significant new provisions were introduced. The changes included a new requirement that the individual has a reasonable belief that they are making the relevant disclosure in the public interest, extension of the definition of 'workers' for whistleblowing purposes, and co-workers' liability for victimisation with corresponding employer vicarious liability.

This year we have learnt just how significant or not these changes have been.

The Great British [Interest] Off

At the time the revamp was introduced, the public interest test change was expected to have the biggest impact. Would the change bring an end to individuals benefitting from whistleblowing legislation when relying on a self-serving disclosure of a breach of their own contract of employment?

Like the hype regarding the move of the Great British Bake Off from the BBC to Channel 4, yes there is a change but the impact of the change is far less than anticipated.

In July the Court of Appeal agreed that an employee fulfilled the public interest test, despite his primarily personal motivation in doing so. His disclosure regarded alleged manipulation of profit and loss accounts by his employer that negatively affected his and 100 other senior mangers' commission payments. The tribunal had identified a number of features that made it reasonable to regard his disclosure as being in the public interest as well as in his personal interest, specifically:

  • the number of employees affected;
  • the nature of the wrongdoing, which involved large sums of money;
  • the nature of his employer's business; and
  • the fact that it was deliberate.

The Court of Appeal decisions suggest that the introduction of the 'public interest' requirement may not be as significant a change as many commentators anticipated. Even in cases where the individual is primarily concerned with their own self-interest, there is potential for the individual to establish a belief that it is made "in the public interest", by referring to concern for colleagues who may find themselves in a similar positon. 'The public' for these purposes do not necessarily need to be outside the employer's workforce (Chesterton Global Ltd (t/a Chestertons) v Nurmohamed).

Master [behind the] chef

The 2013 change that has had a very significant impact this year is the introduction of co-worker liability for victimisation with corresponding employer vicarious liability.

Where an employee is dismissed, it will be automatically unfair if the principal reason for the decision to dismiss was that they made a protected public interest disclosure. But what if the decision-maker is being manipulated by another? In the case of Royal Mail Ltd v Jhuti, the dismissing officer was unwittingly misled by the employee's line manager. The Court of Appeal confirmed that in the context of a whistleblowing unfair dismissal claim, even where manipulation has taken place, it is only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss that is relevant. Unfair or even unlawful conduct on the part of individual colleagues or managers is immaterial unless it can properly be attributed to the employer. But there is a twist…

While there may be no unfair dismissal, the individual (i.e. the manipulator) behind the detriment suffered will be open to a 'dismissal consequent on detriment' claim with the employer potentially vicariously liable (subject to any reasonable steps defence).

Whether the statutory provisions allow a 'detriment' claim to be brought, where the detriment complained of is dismissal, is controversial. However both the Court of Appeal in Jhuti and the Employment Appeal Tribunal (EAT) in International Petroleum Ltd v Osipov held this year that 'dismissal consequent on detriment' claims are possible.

Ramsay's [Workplace] Nightmares

Also on the whistleblowing front, we have learnt that it is irrelevant that an employer genuinely believed that an employee's disclosure did not amount to a protected disclosure (Dr Beatt v Croydon Health NHS Trust). While this sounds straightforward, determining whether a protected disclosure has been made can prove tricky when dealing with, shall we say, those with 'difficult' and 'challenging' personalities in what the tribunal described as a 'dysfunctional' work environment.

Worker Status

Uber, Deliveroo, CitySprint, Pimlico Plumbers, the list goes on… Whether individuals are independent contractors or workers for employment law purposes continues to be a hot topic. Since the 2016 landmark tribunal decision that Uber drivers are workers (despite Uber's best efforts at drafting bamboozling contractual clauses) there has been a growing list of new claims and appeals.

Referred to as the gig economy cases, what the various cases have in common is a business model under which operatives are intended to appear to clients of the business as part of the business. However, at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor, rather than employer and employee or worker.

Cake Boss

We began the year with Smith v Pimlico Plumbers. Here, the Court of Appeal upheld the EAT's decision that a plumber, who was self-employed for tax purposes, was nevertheless a 'worker' for unpaid holiday pay and unlawful deduction of wages claims and an 'employee' under the equality legislation extended definition.

The Court of Appeal agreed the tribunal correctly concluded that the plumber was under an obligation to provide his services personally as there was no express or implied right of unrestricted substitution or delegation. Also, Pimlico could not be considered to be a client or customer of the plumber's business but was better regarded as a principal. The individual plumbers were an integral part of Pimlico's operations and subordinate to Pimlico.

Interestingly the Court of Appeal held a conditional right to substitute (in the sense of being limited or occasional) is not necessarily inconsistent with personal service.

The 'worker v independent contractor' debate continued with a number of courier cases (CitySprint, Addison Lee etc.) and in November the eagerly awaited EAT Uber decision (Aslam v Uber BV and ors) landed. The EAT upheld the tribunal's high profile decision that drivers engaged by Uber are not self-employed, but instead are 'workers' legally entitled to the national minimum wage (NMW), paid annual leave, and whistleblowing protection. The EAT confirmed that the tribunal was entitled to reject Uber's arguments that it was not a transport provider, but merely a technology platform providing an app which self-employed drivers could use.

The EAT also approved the tribunal's finding that the amount of control Uber exercises means any driver who has the app switched on, is within their authorised territory, and is able and willing to accept assignments, is working for working time and NMW purposes.

Much of Uber's appeal was based on challenging the tribunal's disregard of the contractual documentation Uber had put in place which it argued prevented a worker relationship existing. Rejecting Uber's argument, the EAT reiterated that tribunals must have regard to the reality of the situation looking beyond contractual labels. Uber also argued that an agency arrangement, whereby it acted as agent between the drivers and passengers, is common in the private vehicle hire industry. The EAT agreed that was a potential business model, but disagreed that was the true business model operated by Uber. As found by the tribunal, the drivers were key to Uber's transport business and indeed marketed as part of the business.

CAC determined that the riders, known as 'roos', were self-employed. Critically, the CAC concluded there was a genuine substitution clause which meant roos did not undertake to do personally any work.

Integration in the business appears to be a factor of increasing importance in the current wave of worker status cases. Mr Mullins (the owner of Pimlico) criticised Mr Smith for wanting to have his cake (perhaps, dare we say, a 'plumb' pudding) and eat it - to take the tax benefits of self-employment but also want the protection of some employment laws. Setting to one side the general misunderstanding by employers that employment status for tax purposes (with two options: employee or self-employed) equates to employment status for employment law purposes (with three options: employee, worker or self-employed), Pimlico (and Uber) could equally be accused of wanting to have its cake and eat it: a business/marketing model under which operatives appear to customers as part of the business, but at the same time seeks to maintain, as between itself and its operatives, that there is a legal relationship of client and independent contractor, rather than employer and worker.

Further appeals are on their way.

Holiday

I'm a worker get me [holiday pay]

It is now well established that the prohibition on carry-over of untaken annual leave contained in the Working Time Regulations 1998 does not apply where a worker is 'prevented' from taking their annual leave due to sickness absence or family related leave. Is a worker also 'prevented' from taking their annual leave in circumstances where an employer has wrongly classed an individual as an independent contractor, therefore denying any right to take paid holiday? Does carry-over equally apply in such cases?

These are the questions the Court of Justice of the European Union (CJEU) considered this year in Sash Window Workshop Ltd v King. And the answer is…yes, a worker is 'prevented' from taking their annual leave in circumstances where an employer has wrongly classed an individual as an independent contractor, therefore denying any right to take paid holiday.

As for whether carry over applies, again the answer is…yes.: Carry-over must be allowed and is not limited to a period of say 15 or 18 months as has been held by the courts in relation to those 'prevented' from taking leave due to ill-health. It is for employers to get 'worker status' correct. Unlike situations where prevention is due to the worker's ill-health, an employer that does not allow a worker to exercise his right to paid annual leave must bear the full consequences.

Where employers incorrectly treat workers as independent contractors, they could find themselves faced with unpaid holiday claims going back a number of years, in Mr King's case 12 years.

Up until now the potential for workers to bring claims for a number of years of unpaid holiday has been restricted. Previously claims for unpaid statutory holiday were pursued through the back door as an unlawful deduction of wages claim rather than a statutory working time claim. However, following the Bear Scotland litigation and the introduction of the Deduction from Wages (Limitation) Regulations 2014 access to this back door is severely restricted. The CJEU has now pointed out that a front door for back pay claims via a statutory Working Time Regulations route has been open all the time.

This case takes on added significance in light of the rise in worker status cases. For example Smith v Pimlico Plumbers concerns a seven year working relationship.

The X[tra] Factor

What constitutes 'normal remuneration' for calculating holiday pay has again featured as a hot topic this year. Do we finally have some certainty?

The EAT in Dudley Metropolitan Borough Council v Willetts and Others confirmed that entirely voluntary overtime worked 'sufficiently regularly' falls within the concept of 'normal remuneration'. In this case, the EAT had no difficulty in concluding that a payment was 'normally' made if paid over a sufficient period of time (in this case several years) on a regular basis, say for one week each month or one week in every five weeks, even if it is not paid more frequently or even each week. Fluctuations in the amount paid would be catered for by the 12 week average.

So 'normal pay' is that which is 'normally received'. Focusing on whether overtime is or isn't 'voluntary' is irrelevant. The key is regular receipt.

As regards commission payments, British Gas appear to have finally thrown in the towel in Lock v British Gas after the Supreme Court refused permission for further appeal. So, regularly earned results-based commission payments must be included in calculating holiday pay for the first four weeks of annual leave. As is the case for overtime, the key is regular receipt. A note of relief for employers, the principles from this case do not translate to a scenario where a worker receives a single, large, results-based annual bonus.

On Call time

The [Sleeping] Night Manager

Treatment of 'sleep-in' shifts for national minimum wage (NMW) purposes is an area that can often cause confusion. Where a worker is required to work a number of 'sleep-in' night shifts at the employer's premises, and be available in case of an emergency, does the full night shift constitute 'working' for the purposes of the NMW? Alternatively, is the worker only 'working' for NMW payment purposes when they are awake to carry out any relevant duties? The point is particularly significant in the care sector where sleep-in duties commonly arise.

In three combined appeals of Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake the EAT considered the issues around 'sleep-in' shifts and answered:

"A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case."

In other words the dreaded, "it depends on the facts of the case". From the multifactorial evaluation conducted on the facts of the three cases, it appears tribunals will find workers are 'working' the entire sleep-in shift even when sleeping where:

  • the employer is under a statutory or contractual duty to have a worker on the premises at all times;
  • the worker is unable to leave the premises at any time during the shift; and/or
  • the worker has a degree of responsibility for personally performing duties when needed and making judgments about what is required over and above merely having to call out emergency services.

Agency Workers

The Constant [Agency Worker]

In Jones v Birds Eye, the employment tribunal remind us that following the 2013 EAT decision in Moran v Ideal Cleaning, the number of agency workers potentially falling within the provisions of the Agency Workers Regulations 2010 is significantly less than originally anticipated. Not all agency workers are covered, it is only those supplied to work temporarily. Those placed indefinitely (meaning open-ended in duration) are not placed 'temporarily' and therefore outside the scope of the Agency Workers Regulations (AWR).

In addition, employers should not be criticised for carrying out a genuine workforce reorganisation to ensure compliance with changes to legislative requirements. A 'sham' suggests an arrangement created to give the appearance that the rights and obligations as between the parties are different to the reality of the situation. The establishment of a role filled by real people to fulfill a genuine business need does not equate to a 'sham'.

Termination

Have I got [old] news for you

When and to what extent can employers take account of previous warnings when deciding to dismiss? Generally, an employer will be acting unreasonably in relying on an expired warning as the principal or deciding reason to dismiss. However, this legal principle has some fuzzy grey edges. This year we have had two examples of grey areas working in an employer's favour:

  • In Stratford v Auto Trail VR, the EAT found a dismissal was fair even though the employer initially decided that a disciplinary offence merited a final written warning. In the circumstances of the case, the employer was able to rely on 17 previous expired warnings and its belief that given this history there would be future conduct issues.
  • In NHS 24 v Pillar, a nurse was dismissed for a patient safety incident (PSI). Two previous PSIs had been addressed solely through training and development. The EAT overturned the tribunal's finding that consideration of the previous PSIs made the decision to dismiss unfair. These were not expired written warnings and the employer had not created any expectation that future incidents would not be treated more seriously.

The Only Way is [not Suspension]

In Agoreyo v London Borough of Lambeth, the High Court reminds employers that suspension is not a neutral act and should only be imposed with care. In this case, the use of suspension as part of the disciplinary process amounted to a breach of trust and confidence as it was a default positon imposed as a knee-jerk reaction. This does not mean that suspension will inevitably result in a breach of trust and confidence, but rather that it is a serious step and thought should be given to whether it can be avoided.

Suspension may be appropriate where, for example, there is a potential threat to the business or other employees or it is not possible to properly investigate the allegation if the employee remains at work.

Never Mind the [Process Label]

During a redundancy exercise is there a difference between reducing three roles to two or restructuring to eliminate three roles and create two new roles? Does it matter?

When it comes to judging the reasonableness of the selection criteria used, it does matter. There is a subtle difference between allocating staff to newly created roles and selecting staff to remain in a dwindling number of roles. For the former, the employer has a greater degree of flexibility in using subjective selection criteria, in the latter the employer must follow a more objective selection process (Green v London Borough of Barking & Dagenham).

Would I lie to you?

This year we have had reminders of the principles that come into play in relation to dismissals based on breach of the implied contractual term of trust and confidence:

  • In Rawlinson v Brightside, the EAT point out that the term of trust and confidence implied into all employment contracts must include an obligation not to deliberately mislead. This does not mean an employer is under a broader contractual obligation to volunteer information, such as a reason for dismissal. However, where the employer has provided a reason for dismissal, it must act in good faith. In other words, it must not give an untrue reason.

The EAT also reminds, that employees as well as employers can rely on facts that only came to light after the dismissal. Although Mr Rawlinson resigned believing the implied term of trust and confidence was breached for a different reason that did not matter. The employer was in breach of contract at the time entitling Mr Rawlinson to rely on that breach in his wrongful dismissal claim.

As the old adage states, 'honesty is always the best policy'.

  • In Adesokan v Sainsbury's, the Court of Appeal reaffirmed the principle that negligence can amount to gross misconduct justifying an employer's decision to dismiss without notice. Dereliction of duty can in some circumstances (particularly in relation to senior employees) damage the relationship of trust and confidence. Whereas dishonesty or other deliberate actions can be gross misconduct, so too can gross negligence, which similarly damages the relationship and warrants immediate dismissal. Intentional wrongdoing or dishonesty is not required.

Contract

As employers increasingly take on more apprentices and sponsor students in their degree studies, we have two useful cost reminders:

The Apprentice - You're fired

Apprentices employed under contracts of apprenticeship have enhanced protection from early termination of contract as compared to ordinary employees. Apprentices are entitled to damages for loss of earnings and training for the remainder of the term and for loss of future career prospects. Damages can therefore be significant. In Kinnear v Marley Eternit Ltd, an apprentice was awarded £25,000 when his four year apprenticeship contract was terminated after less than two years for redundancy.

Once hired, even Lord Sugar may want to think twice before saying 'you're fired'.

Temptation Island

In a case before the Privy Council referred by the Trinidadian courts, the court considered a student loan repayment clause under which repayment to the employer was waived if the employee worked for a further five years. The Court held that by necessity, there is an implied term that, if the employer did anything of its own initiative to prevent the employee from providing those five years' service (justified dismissal for repudiatory breach excepted), repayment of the loan would similarly be waived.

Whether taking voluntary redundancy amounted to the employer preventing the employee from working depended on the circumstances. Unfortunately for the employee in this case, taking the tempting voluntary redundancy offer was the wrong decision, leaving him with a hefty student loan repayment. The employer had not prevented the employee from working when accepting his application for voluntary redundancy as the employee knew there was a good chance that if he had not applied for voluntary redundancy he would not have been selected for compulsory redundancy.

Restrictive Covenants

Strictly come [drafting]

The Court of Appeal in Tillman v Egon Zehnder remind employers that a restrictive covenant will be void for being in restraint of trade unless the employer has a legitimate interest to protect and the protection sought is no more than is reasonably necessary having regard to the interests of the parties and the public interest.

In this case, the Court of Appeal set aside an injunction upholding a six-month non-compete restrictive covenant. The restriction sought to prevent the employee from being concerned or interested in any competing business for a period of six months from termination. Crucially, it did not contain an express limitation allowing the employee to hold a minor shareholding in a competing business for investment purposes. Given that the phrase 'interested in' included holding one share in a publicly quoted company, this rendered the restriction impermissibly wide, and therefore void.

Unfortunately for the former employer, it made no difference that the former employee had any intention to hold such an investment and simply wanted to rely upon this restriction being too wide to render the covenant as a whole unenforceable enabling her to join a competitor. As the Court stated:

"It may be said to be unmeritorious that Ms Tillman can rely on the theoretical width of the post-termination covenant to include a shareholding when she does not intend to acquire any shareholding in any competitor and wants to work for a competitor which she could have been restrained from doing if the clause were more carefully drafted. But the law which avoids contracts in unreasonable restraint of trade is based on the wide public policy. …. In those circumstances the merits of individual cases must inevitably take second place."

Strictly speaking, only careful and precise drafting will do!

Trade Unions

Countdown

The majority of the controversial provisions of the Trade Union Act 2016 came into force on 1 March 2017. Only six months in, we had our first High Court test.

Ballot papers must now indicate the period within which industrial action is expected to take place. Was a ballot paper stating dates to be announced sometime between 8 September 2017 and 18 February 2018 compliant? The High Court said yes. Considering industrial action must take place within six months of a valid ballot (unless extended by agreement) there is quite a wide window unions can use.

8 out 10 [Union Members]

In February the Court of Appeal agreed that a pre-existing recognition of a so-called sweet-heart union blocked a recognition application by an independent union. While holding action by the independent union itself was blocked under the legislation, the Court pointed out there was an alternative route. A de-recognition application could be made by an affected worker (PDAU v Boots Management Services). Having taken the rather large hint, in November the Central Arbitration Committee accepted an application had the required level of support within the bargaining unit to trigger statutory de-recognition (Parker v Boots Pharmacists' Association).

Also on the collective bargaining front:

  • The right to collectively bargain in respect of 'pay, hours and holiday' includes rostering arrangements (BALPA v Jet2.com).
  • Small bargaining units are possible. The requirement to avoid fragmentation is aimed at avoiding employers having to negotiate with more than one union, rather than prevent a union being recognised in respect of a very small pool of employees where no union is recognised in respect of the remaining majority of the workforce (Lidl v CAC and GMB).

Tupe

Following the 2006 overhaul of the Transfer of Undertaking (Protection of Employment) Regulations (TUPE), we finally have the first appellate level guidance on 'its principal purpose' under a service provision change (SPC) and on employee liability information (ELI) obligations.

Outnumbered

To establish a SPC there must be not only an 'organised grouping of employees' but also its 'principal purpose' must be the carrying out of the relevant activities. A question mark often arises where the outgoing provider received the majority of its work from one major client. We finally have some EAT guidance.

If an organised grouping comprises far too many employees than would be necessary for the activities in question, that suggests either not all the staff concerned were in fact assigned to it or the real purpose behind the organisation of the group was other than the carrying out of the relevant activities for the client (Tees Esk & Wear Valley's NHS Foundation Trust v Harland).

Peter Kay's [Information] Share

A transferor must give the transferee specified ELI including information on remuneration levels. When a transferor provided information that there was a non-contractual Christmas bonus that later transpired to be contractual, was the transferor in breach of its ELI obligations?

No said the EAT. While some of the required ELI required to be provided under TUPE is contractual, some is not. As such, there is no requirement under TUPE to label the entitlement as contractual or not (Born London v Spire Production Services). Buyer beware! There is no escaping the need for thorough due diligence.

Equality

On Her Majesty's [Civil] Service

Indirect discrimination is broadly concerned with an apparently neutral provision, criterion or practice ('PCP') which is not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people with a particular protected characteristic when compared with others who do not share that protected characteristic ("group disadvantage"). Where a PCP disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

This year the Supreme Court was asked whether for an individual to establish a prima facie case, it is necessary to show not only why the PCP had disadvantaged the group, but also why they as an individual have been disadvantaged.

There may be some cases where it is clear why the group was disadvantaged. However, in other cases, there may be no clear explanation as to why a group was affected by the interaction between the PCP and the protected characteristic.

The Supreme Court reminds us that indirect discrimination is a concept concerned with 'equality of results' rather than 'equality of treatment'. Where an employer's PCP results in a group disadvantage shared by those with a protected characteristic and the individual claimant also suffers from that disadvantage, than the claim will succeed unless the employer can objectively justify its PCP. It does not matter whether the claimant can prove the 'reason why' there is group disadvantage. It is enough that the disadvantage exists. In Essop and ors v Home Office there was strong statistical evidence that older, ethnic minority candidates had a poor success rate in the civil service exam, but why that is the cause is simply unknown.

Dr [Computer says] No

Can online recruitment tests be indirectly discriminatory? Yes. The EAT this year held a requirement for all applicants to pass a multiple choice situational judgment test at the first stage of a recruitment process indirectly discriminated against an applicant with Asperger's syndrome. Acknowledging that whilst it would not be ideal to run two methods of assessment and there may be difficulties in comparing responses, these factors did not outweigh the prejudice to the applicant of not adapting the process. The EAT accepted this case was not one where the method of testing and competency itself were inseparable (Government Legal Services v Brookes).

A View to a [pre-existing vulnerability]

This year an employee was awarded £320,000 as a result of psychiatric injury caused by an employer's sex discriminatory treatment. Employers are reminded that when instructing experts they should always consider whether the individual had a pre-existing diagnosable disorder prior to the employer's wrongdoing. In addition the expert should routinely assess whether the individual had a pre-existing vulnerability and the chance that they would have succumbed to a stress-related disorder in any event.

In this case the individual did not have a pre-existing illness and the procedural history of the case did not allow the employer at a late stage to argue pre-existing vulnerability (BAE Systems v Konczak).

[Prove] and Let [Unprove]

In the Summer, the EAT controversially overturned the accepted orthodoxy saying that the shifting burden of proof rule that applies under the Equality Act 2010, did not put any burden on the claimant at all (Efobi v Royal Mail). But by November, the Court of Appeal restored the widely accepted interpretation that a claimant has to prove facts from which the tribunal could infer that discrimination has taken place. It is only if such facts have been made out on the balance of probabilities that the burden shifts to the employer to prove that - again on the balance of probabilities - the treatment in question was in no sense on the protected ground (Ayodele v Citylink).

The [Part time] World Is Not Enough

Section 15 of the Equality Act 2010 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.This year's Section 15 lessons include:

  • Was an employee treated unfavourably under an ill-health retirement scheme in assessing his pension on the part-time hours he worked as a reasonable adjustment during the last two years of his employment rather than the full time hours he had worked during the previous 10 years? The Court of Appeal has said no. There is a difference between being treated 'unfavourably' and 'less favourable treatment'. Treatment which is advantageous (ill health retirement was only an option for those with a disability) will not amount to unfavourable treatment merely because it could have been even more advantageous. (Williams v Trustees of Swansea University Pension & Assurance Scheme).
  • Where an employee has been off sick for a long time, even questionable evidence that the employee will be able to return to work soon should be fully investigated before making the decision to dismiss (O'Brien v Bolton St Catherine's Academy)
  • There is a two stage test to establish disability-related discrimination: First there must be something arising in consequence of the disability. Secondly, the unfavourable treatment must be because of that something. But to what extent does the treatment have to be because of the relevant something? The EAT says that to establish unfavourable treatment is 'because of' the 'relevant something', requires significant influence not mere influence (Charlesworth v Dransfield Engineering Services).

License to [Ban?]

It was difficult to not to be aware of the CJEU first judgments on religious discrimination last Spring. Press reports appeared on just about every news outlet, with some boldly stating 'Court holds employer headscarf ban not discriminatory'. This rather simplistic statement was not only too simple but actually misleading.

Yes the CJEU in the cases of Achbita v G4S Secure Solutions and Bougnaoui v Micropole Univers, found the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct religious discrimination. But such a prohibition may constitute indirect religious discrimination unless it is objectively justified by a legitimate aim.

Establishing a legitimate aim is usually the easy part. In these cases, wishing to show ideological and religious neutrality to its customers was accepted fairly easily by the Belgium and French courts. The tricky question of proportionality then comes into play.

These decisions build on the conclusion of the European Court of Human Rights (ECtHR) in Eweida v British Airways on legitimate aim, namely BA's right to uphold its corporate image. However, it should also be borne in mind that the ECtHR found in Eweida that, despite there being a legitimate aim, BA's policy was not objectively justified. Employers should not be encouraged to take these decision as permission to ban headscarves as ultimately the arguments about whether such a measure would be appropriate and necessary are circumstantial and finely balanced.

The Man with the Golden [Enhanced pay]

Can employers offer enhanced contractual maternity pay to mothers, but only statutory shared parental leave (ShPL) pay to fathers? At what point is maternity leave no longer designed to protect a woman's biological condition following pregnancy, or the special relationship between mother and baby, and instead becomes akin to childcare?

Whether an employer, who fails to match maternity pay enhancements, will face a successful discrimination claim from a man on ShPL has been the baby elephant in the room for some time. This year a tribunal in Ali v Capita Customer Management Limited found that disparity in policies offering enhanced contractual maternity leave pay to female employees but only offered statutory ShPL pay did directly discriminate against a male employee. However at the end of 2016 a different tribunal came to the opposite conclusion (Hextall v Chief Constable of Leicestershire Police). Whether Ali or Hextall will be upheld on appeal we wait to see.

Quantum of [Risk]

Employers have a legal obligation to assess the potential workplace risks to the health and safety of pregnant or breastfeeding employees or their babies. The CJEU has held that where a risk assessment is carried out there must be an examination of the individual situation of the worker to establish whether the health and safety of her and her child is at risk. Failure to conduct such a risk assessment must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and constitute direct discrimination on grounds of sex.

Employers should take note that a generic assessment of the workplace, jobs and the general state of health of the average female worker who is pregnant, recently given birth or who wishes to breastfeed is unlikely to amount to a satisfactory risk assessment. Employers should also remember a risk assessment for a worker who is pregnant will not inevitably have the same result for that worker while she is breastfeeding.

Data Protection & Employee Privacy

While businesses prepare for the EU General Data Protection Regulation introducing changes from May 2018, this year on the data protection and employee privacy front:

Big Brother

The Grand Chamber of the ECtHR reminds employers they should make employees aware of any monitoring of their communications (Barbalescu v Romania). Despite newspaper headlines this year, this decision by no means champions employee privacy in the workplace at all costs.

Reasonableness and proportionality remain the most important factors in the balancing act between the competing interests of employers and employees. Employers can still access private communications on work networks but only where there has been an element of pre-warning, the reason for the intrusion is a legitimate one and the actual intrusion is proportionate. Accessing actual content of private communications should not be done where it is sufficient to only show private use took place to establish breach of an employer's computer usage policy.

Hunted [Information]

Following two Court of Appeal judgments this year, the Information Commissioner's Office updated its Subject Access Code of Practice. In particular:

  • The disproportionate effort exception cannot be used to justify a blanket refusal of a subject access request (SAR). It is not open to a data controller to avoid substantive compliance by simply saying that it would be too expensive or time-consuming to fulfil. As the Court pointed out in Dawson-Damer v Taylor Wessing LLP, the cost of compliance is the price data controllers pay for processing data.
  • Whether or not a requester has 'collateral' purposes (that is, other than seeking to check or correct their personal data) for making the SAR is irrelevant. As the Court pointed out in Ittihadieh v 5-11 Cheyne Gardens, the legislation does not limit the purpose for which a data subject may request their data.

The 2017 awards (drum roll please…)

The 'cunning plan' Award

and the winner is…The Independent Workers Union of Great Britain (IWGB)

…despite the failure of last year's cunning plan to get worker status recognition for Deliveroo couriers, the IWGB has not been put off. It is now trying cunning plan II, seeking union recognition from an end user of outsourced workers. If successful this could have significant implications introducing a concept of joint employment for collective bargaining purposes.

The 'best use of literature' Award

and the winner is… Lord Justice Underhill

… for including in the Court of Appeal's judgment in Royal Mail Ltd v Jhuti, references to Iago, the manipulator in Othello.

The 'best use of old legislation' Award

Honourable mention goes to… Lord Clarke in Hartley and ors v King Edward VI College which turned on the application of the Apportionment Act 1870

But the hands down winner is… Lord Reed

… for using not merely old, but ancient legislation going back as far as the Magna Carta 1215 in giving the Lord Chancellor a lesson on the importance of the rule of law in the tribunal fees challenge.

The 'nice try' Award

and the winner is… Fidessa PLC

… for arguing that an employee returning to work after maternity leave must physically return to work for at least a day before taking accrued annual leave in order to have "returned to work" within 12 months. As held by HHJ Eady QC, that was "plainly not right".


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