- Litigation: Be wary of litigation privilege on documents
- Long term disability: Implied term that long-term disability benefit recipient should not be dismissed for incapability
- Disability discrimination: Stealing is an excluded condition
- Worker status: IWGB not able to undertake collective bargaining on behalf of Deliveroo riders
- GDPR: Draft guidelines on GDPR territorial applicability produced
- Disability and Mental Health: New government framework on Voluntary Reporting has been published
- Employment Tribunals: New online case system to be trialled
Employment Law Newsletter – December 2018
Litigation: Be wary of litigation privilege on documents
The Court of Appeal in WH Holding Ltd and another v E20 Stadium LLP  EWCA Civ 2652 has recently provided some valuable guidance on the scope of litigation privilege for documents. Documents which have as their dominant purpose obtaining advice or evidence with regard to litigation are capable of being withheld from disclosure (litigation privilege) to the Court but an application to withhold must be made. In this case, the respondent (E20 Stadium LLP) had asserted litigation privilege over six emails which had passed between board members and stakeholders. E20 claimed that the dominant purpose of the emails was a commercial proposal for settling the dispute during a time when litigation was a reasonable prospect. However, the claimants (WH Holding Ltd & Anor) made an application for the court to inspect these emails, albeit properly redacted, as they claimed there was more than one purpose to these emails. The Judge dismissed the application on the basis that they were protected by litigation privilege. The claimants appealed.
The Court of Appeal was concerned with whether litigation privilege extends to documents which are concerned with the settlement or avoidance of litigation where the documents neither seek advice or information for the purpose of conducting litigation nor reveal the nature of such advice or information.The Court allowed the appeal, holding that there was no authority or justification for extending the scope of litigation privilege to purely commercial discussions and rejected the submission that litigation privilege covered all documents brought into existence for the purposes of actual or contemplated litigation.
This judgment highlights that companies and their employees must remain vigilant regarding the nature and extent of their internal discussions of litigation-related matters, and the records they create of such discussions, keeping in mind at all times that documents could be required to be disclosed during the litigation process.
Long term disability: Implied term that long-term disability benefit recipient should not be dismissed for incapability
In Awan v ICTS UK Ltd UKEAT /0087/18/RN Mr Awan was a security agent employed by American Airlines (AA) at Heathrow Airport. Mr Awan’s employment contract provided that he was entitled to six months full sick pay and if still on sick leave after that time, would benefit from a long term disability benefit plan which would pay two-thirds of his base annual salary (less any State disability benefits) until the earlier of his return to work, retirement or death. His contract did not refer to an insurance policy or state that his entitlement to disability benefit was dependent on the rules of an insurance policy or the rules of a particular insurance provider. AA had a group income protection policy covering the provision of the long-term disability benefits to its employees. The policy provided that the insured employee would be entitled to benefits under the policy only so long as that person remained employed.
Mr Awan suffered from depression and went on sick leave. AA outsourced the security department to ICTS and the employer’s obligations under the plan transferred under TUPE.
Mr Awan was dismissed on account of capability. A tribunal found that there was nothing to stop the employer dismissing him while he was entitled to receive benefits. It held that the employer had acted reasonably and the dismissal had been fair. Additionally, the dismissal was a proportionate means of achieving a legitimate aim so that there was no unlawful disability discrimination under the Equality Act 2010. Mr Awan appealed.
The EAT held that the employment tribunal erred in its findings. It found there was an inherent contradiction between the employer’s contractual right to terminate on notice and the employee’s contractual right to disability benefits. Therefore, on a proper construction of the contract, a term should be implied that an employee entitled to receive long-term disability benefits under the plan could not be dismissed on account of his incapacity to work. The effect of that implied term was to limit the express contractual right to terminate on notice if it would frustrate the contractual entitlement to long term disability benefits. Whilst normally, a dismissal in breach of contract is not necessarily unfair, here the contractual position was very pertinent to judging the reasonableness of the employer’s actions. The issue of unfair dismissal was therefore remitted back to a fresh tribunal for reconsideration.
Such cases are fact specific and include a thorough examination of the applicable contractual terms. This case suggests that it would be risky for an employer to seek to rely on an express contractual right to terminate for incapacity where the contract also provides the employee with the contractual right to disability benefits or PHI.
Disability discrimination: Stealing is an excluded condition
In Wood v Durham County Council UKEAT/0099/18, 3 September 2018 Mr Wood had gone into a shop, put some items in a bag and left without paying for them. He was employed by Durham Council who dismissed him as a result. Mr Wood claimed this was disability discrimination because he suffered from post-traumatic stress disorder and dissociative amnesia, and it was this that had caused his shoplifting. The tribunal found that whilst Mr Wood was considered disabled due to these conditions, Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010states that a tendency to steal is a condition which is not considered to be an impairment and is therefore excluded. It was the stealing which had led to the dismissal and, as an excluded condition, Mr Wood was unable to rely on this for bringing his disability discrimination claim. His claim for unfair dismissal proceeded.
Worker status: IWGB not able to undertake collective bargaining on behalf of Deliveroo riders
In November last year we reported that the Central Arbitration Committee (‘‘CAC’’) had held that Deliveroo riders were not workers as defined by s296(1)(b) TULR(C)A 1992, as they did not have a contractual obligation to perform work personally. The union wanted to represent Deliveroo riders to negotiate on issues of pay, hours and holiday with the company but, because of this ruling which confirmed they were self-employed, IWGB was unable to apply for recognition to be entitled to conduct collective bargaining on their behalf. Instead, IWGB brought a judicial review of the CAC’s decision. The grounds for the judicial review were under Article 11 of the ECHR the right to freedom of assembly and association (including the right to form and join a union to protect his/her rights), which required an interpretation of s296(1)(b) TULR(C)A (a worker means a person who under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his) and the ‘‘personal service’’ element within that subsection, so as not to exclude the riders from exercising statutory rights to collective bargaining.
The High Court dismissed the judicial review stating that Article 11 was not engaged because all the ECHR case law about the right to collectively bargain concerned those within an employment relationship. Deliveroo riders do not have an employment relationship with Deliveroo therefore their human rights had not been breached. Even if Article 11 had applied, restricting statutory collective bargaining rights to workers with a contractual obligation of personal service was justified under Article 11(2).
GDPR: Draft guidelines on GDPR territorial applicability produced
On 23 November 2018, the European Data Protection Board (EDPB) published its guidelines on the territorial scope of the GDPR. These are available for public consultation and the EDPB is currently seeking comments on it – to be received by 18 January 2019.
Territorial scope for controllers and processors both inside and outside the EU is covered by Article 3 of the GDPR. This reflects the legislator’s intention to ensure comprehensive protection of EU data subjects’ rights and to establish, in terms of data protection requirements, a level playing field for companies active on the EU markets, in a context of worldwide data flows.
The guidelines cover four main topics:
- Application of the establishment criterion in Article 3(1)(i.e.what is meant by an establishment in the EU and what is processing in the context of the activities of an establishment. The EDPB clarifies that the place of processing is irrelevant and that the criterion applies separately to controllers and processors.)
- Application of the targeting criterion in Article 3(2)(i.e.non-EU processors and controllers cannot benefit from the one stop shop mechanism; mere processing of personal data of data subjects in the EU is not alone sufficient to trigger the GDPR obligations, there must be “targeting” for Article 3(2) to apply, plus factors to consider when the offering of goods and services is directed at EU data subjects, etc).
- Processing in a place where Member State law applies by virtue of public international law(i.e. GDPR applies to embassies and consulates of member states)
- Representative of controllers or processors not established in the Union(i.e. appointing representatives within the EU and exemptions).
Disability and Mental Health: New government framework on Voluntary Reporting has been published
On 22 November 2018, the Department for Work and Pensions and the Department of Health and Social Care published Voluntary Reporting on Disability, Mental Health and Wellbeing, a framework developed with large employers and experts to support employers to report voluntarily on disability, mental health and wellbeing in the workplace. It is part of the DWP’s drive to increase workplace transparency and its ten-year vision for reforming the relationship between work and health. This framework is a result of a recommendation from the Thriving at work: the Stevenson/Farmer review of mental health and employers.
Whilst the framework is aimed at large employers with over 250 employees there is nothing to stop smaller employers using it. It recommends that employers produce a narrative explaining the action they have taken to recruit and retain disabled employees and to support the mental health and wellbeing of their employees. It is hoped that by becoming more transparent with the use of recording and reporting information on disability, mental health and wellbeing, it may help improve employee engagement and retention, thus improving performance and productivity, better understand employees, access a wider pool of talent and skills through promoting inclusive and disability-friendly recruitment, retention and progression policies, better serve and connect with disabled customers and communities, which in turn helps capitalise on spending power, among other things.
Employment Tribunals: New online case system to be trialled
Speaking at the International Online Court Forum in London, Sir Ernest Ryder, Senior President of Tribunals, announced that the Employment Tribunal Service will trial a pilot of an online case running service. The system will enable cases to be conducted online from start to finish using online resolution and video hearings similar to those trialled in tax tribunals. It will reduce the number of working hours lost through attending court, though there will still be some face-to-face meetings required, and will be a big benefit to disabled people too. He said that the new system should also help them identify settlement opportunities, which will be its ‘key objective’ in the employment tribunal setting, and did not rule out machine learning to help judges identify key issues.
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