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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 Lt d 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".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.