Employment legal update #72

1. The King’s speech recently highlighted a number of key changes to employment law which the Labour government is seeking to bring in. These include:

• banning exploitative zero hours contract
• ending “fire and re-hire practices
• granting additional “day one” rights to employees
• changing the eligibility requirements for statutory sick pay
• making flexible working the default
• in most cases prohibiting the dismissal of new mothers for six months after they return to work
• establishing a new single enforcement body
• updating trade union legislation and collective bargaining in certain sectors.

However it was not confirmed whether all these would all be included in the new Employment Rights Bill. Also highlighted was:

• A draft Equality (Race and Disability) Bill to enshrine in law “the full right” to equal pay for ethnic minorities and disabled people, making it easier for them to bring equal pay claims. It will also introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees

There was also reference to further legislation which may also have an impact on employers although no specific detail was provided at this stage.

2. The Home Office has published an updated “Employer’s guide to right to work checks”. The updated guide includes:-

• Confirmation that the Home Office no longer requires employers to carry out repeat checks on holders of pre-settled status under the EU Settlement Scheme.
• Accordingly, a right to work check on holders of pre-settled or settled status granted under the EUSS is only required prior to the commencement of their employment.
• There is more context to the replacement of biometric residence permits with eVisas and when follow-up right to work checks are required.
• However the updated guidance has not confirmed the change to the definition of “supplementary employment” announced in Home Office: Statement of Changes to Immigration Rules and already set out in Home Office: Workers and Temporary Workers: guidance for sponsors: part 2 sponsor a worker. The new definition was broadened to encompass all occupations eligible for the route rather than being limited to shortage occupations or work in the same SOC code as the main sponsored role.

Employer and third-party agreement not applicable to employees

Adekoya v Heathrow Express Operating Co Ltd was an EAT case concerning a lifelong travel benefit for employees, including those who retired and who were made redundant with over 5 years’ service. There was a contractual entitlement to discounted rail travel for all employees, via an agreement between the respondent and a third party, to which the employees were not a party.

The agreement allowed the respondent and the third party to change or withdraw the terms which, in due course they did, changing them to be applicable only to employees whose employment commenced before 31 March 1996. Employees commencing after that date, would not be entitled to retain the benefit once they retired or were made redundant with more than 5 years’ service.

The employees concerned, all of whom had started after this date, were made redundant with more than 5 years’ service. When they were told that this benefit would not continue after their redundancy, they brought claims for breach of contract for failure to continue the discounted travel. This, notwithstanding that they were aware the benefit was provided by a third party, and agreement between the respondent and the third party was nowhere referenced in their contracts of employment.

The employment tribunal found that there was an implied term incorporating the terms of the agreement between the respondent and the third party (including the right to withdraw or amend the scheme) into the employees’ contracts of employment. Consequently, their claims of breach of contract were dismissed.

They appealed to the EAT. However, the EAT found that there was no basis for the tribunal to find that the terms between the respondent and the third party were incorporated into the claimants’ contracts. The employees were not aware of the agreement with the right to withdraw or amend the scheme, and there was no reference made to it in their contracts. The EAT concluded that the tribunal’s finding that the claimants, as employees dismissed for redundancy with five or more years’ service, had an incorporated contractual right to enjoy the benefit after dismissal could stand.

The important distinction here is that the agreement between the third party and the respondent was deemed not to have been incorporated into the claimants’ contracts; but the contractual right to benefit from discounted travel and retirement or redundancy, was found to be an incorporated term.

Employer direct liability for whistleblowing detriment and victimisation

In First Greater Western Ltd v Moussa, the EAT has upheld a tribunal decision that an employee was victimised in 2018 for doing a protected act in 2013, and was treated detrimentally for making a protected disclosure in 2012. The claims against the two individual respondents were dismissed, but the tribunal had held that there was “collective memory” within the employer which lasted throughout the intervening period and which resulted in the victimisation and detrimental treatment. This “collective memory” had permeated the employer and its HR team and influenced the way in which the claimant was treated.

The respondent argued that the tribunal should have followed the approach in an earlier EAT case whereby a decision-maker who did not have personal knowledge of a protected disclosure could not be materially influenced by it to make the decision that it did. Regarding victimisation, it said that the tribunal should have made findings about who knew what and when, as the 2012 disclosures and the 2013 protected act were not generally known to management.

The EAT noted that there is a great deal of case law about who caused, or did not cause, a dismissal, a detriment, an act of discrimination or an act of victimisation, and there is a risk of overthinking the issue of causation. Whether a detriment was inflicted “because” the claimant did a protected act or “on the ground that” the claimant made a protected disclosure was a matter of fact for the tribunal to decide.

The EAT concluded that there was nothing in the authorities to say that the tribunal’s decisions were wrong . An employer can be directly liable for whistleblowing detriment under the Employment Rights Act without vicarious liability.

Failure to consider redeployment renders dismissal unfair

The case of Bugden v Royal Mail Group Ltd concerned an employee with a multitude of physical and mental disabilities which had resulted in a total of 297 days sickness absence in a 4 year period. When he was dismissed under the employer’s sickness absence procedure, he issued proceedings for unfair dismissal and disability discrimination. Both claims were dismissed by the tribunal and he appealed to the EAT, who upheld the appeal in relation to the unfair dismissal. This was on the basis that the employer had not considered redeployment when considering any alternatives to dismissal during the dismissal process. Under the employer’s own policy, redeployment was an alternative which should be considered.

However, when considering the issue of disability discrimination, the issue of redeployment as a reasonable adjustment did not feature and the claimant’s appeal against a failure to make reasonable adjustments was dismissed. There had been no mention of redeployment by occupational health in 2 reports or, during the dismissal process, by the employee; neither had this been pleaded. The EAT held that it would be an exception where a reasonable adjustment could be accepted when only raised in the final hearing itself, and only in limited circumstances would the tribunal be expected, of its own volition, to raise a particular adjustment with the parties during the hearing. Consequently, this appeal was not upheld.

Subject access request exemption applies where significant risk of intimidation

The High Court decision of Harrison v Cameron and another concerning subject access requests and the scope of the exemption, has only recently been published. Its interest lies in the analysis of the scope of access rights and several defined key terms and their related obligations under the UK GDPR.

The High Court held that a controller can rely on the ‘rights of others exemption’ under the Data Protection Act and refuse a subject access request to reveal the identities of those to whom data within the scope of the request has been disclosed, if there is a significant risk that those individuals could be intimidated by the individual making the request.

The key point in the case was the disclosure of a recording of a heated telephone conversation between the claimant and first defendant, in which the claimant made several threats of violence. Under the subject access request the claimant claimed the right, under Article 15 of the UK GDPR, to be told the identities of the individuals to whom the recording had been disclosed.

The controller refused to reveal the identities of those who had heard the recording, relying on an exemption in Schedule 2, paragraph 16 of the DPA 2018 concerning the rights of others in considering what should properly be disclosed under the request. This was upheld on the grounds of the threats made and intimidatory tone of some of the legal correspondence by and on behalf of the claimant, because of which the second defendant (ACL) had validly exercised its discretion (as the controller) reasonably to use the ‘rights of others’ exemption to shield the recipients from a significant risk of hostility.

The High Court also ruled that:-

• The ‘personal/household’ exemption under the GDPR did not apply to the recording and disclosure of the call, as this occurred in the context of a business relationship.
• The first defendant acted in the capacity of a director of ACL when he recorded the call and was not a controller. ACL was obliged as a controller to respond to the SAR and the claim against the first defendant was dismissed.

Maternity leave and redundancy

In Ballerino v Racecourse Association Ltd the EAT has overturned a tribunal decision dismissing the claimant’s claims of pregnancy discrimination and automatic unfair dismissal for having been dismissed whilst on maternity leave purportedly for redundancy.

The claimant commenced employment in 2018 and was pregnant when she started. Her role was ,as a financial accountant working 40 days a year. She commenced maternity leave a few months after joining. While she was on maternity leave the respondent created a new business and financial analyst role which was full time. As well as covering different areas, the role also covered the areas covered by the claimant’s role. The claimant was invited to apply for the expanded role but concurrently given a settlement agreement. Negotiations broke down and the claimant issued proceedings for pregnancy -related discrimination and automatic unfair dismissal.

The claimant argued that the new role was a suitable alternative and, under the Maternity Regulations, regulation 10, she should have been offered this role automatically by virtue of her being in the protected period. However, the tribunal rejected this argument on the basis that the new role was involving business analysis rather than the claimant’s role of financial accounting and therefore was not a suitable and appropriate alternative. The tribunal also found that the respondent had provided a viable non-discriminatory reason for creating the new role and this was not a mechanism designed to remove the claimant from the organisation.

The claimant appealed and the EAT upheld it. It found that the tribunal had not considered whether there was a genuine redundancy situation. The claimant had only been in her role 4 months and it was a relatively new role which had left insufficient time to properly decide whether or not it was a role that was needed or whether it should be tweaked in some way. It did not inevitably follow from the reorganisation, or the association’s requirement for different skills, that there had been a redundancy.

With regard to the discrimination claims, as the burden of proof had shifted to the respondent, the tribunal had to determine whether there was a viable non-discriminatory reason for the dismissal. Although the explanation was that she was redundant, the EAT found that the tribunal had not properly explored whether it was genuine redundancy and whether the need for financial accounting skills had properly ceased or diminished.

Trade unions can sue in defamation

Ever since the decision in Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd (EEPTU) there has been uncertainty as to whether a trade union can sue in defamation. In the case of Prospect v Evans, the High Court has now held that it can.

The High Court came to its conclusion based on the current rules on trade unions in the Trade Union and Labour Relations (Consolidation) Act 1992. While a trade union was not a body corporate, it had personality to bring an action in libel to protect its reputation. The same conclusion was reached from the analysis of the Trade Union and Labour Relations Act 1974, which the 1992 Act replaced, and on which the decision in EEPTU was based. The High Court held that the decision in EETPU was wrong and it was not necessary for a trade union to be a quasi-corporation to be able to have sufficient personality to sue in defamation.