A round-up of the most significant employment law cases to be published over the last month including more definitions between workers and self-employed contractors, indirect discrimination and harassment, unfair dismissal and TUPE.
- Worker Status: Supreme Court rules Uber drivers ARE workers
- Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
- Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
- Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
- Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
- Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
- Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
- Intellectual Property: Employer owned copyright relating to software
- COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
- COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
- Flexible Working: CIPD calls for flexible working to be day-one right for employees
- Mental Health: Commission reveals £8,400 mental health income gap in the UK
- Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
- Pensions: Pension Schemes Act 2021 gains Royal Assent
Worker Status: Supreme Court rules Uber drivers ARE workers
As we reported last month, the Supreme Court heard the case of Uber BV and others v Aslam and others on 21 and 22 July 2020 but has only recently published its judgment. The two questions before the initial tribunal were:
- Do the drivers whose work is arranged through the Uber app work for Uber under workers’ contracts (and so qualify for the national minimum wage, paid annual leave and other workers’ rights), or do they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent (and therefore do not qualify for any of these rights)?
- If drivers work for Uber under workers’ contracts, then were the drivers/claimants working under such contracts whenever they were logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips; or were they working only when driving passengers to their destinations?
The Court of Appeal had upheld the decision of the tribunal and found, by a majority, that Uber drivers were workers, and not independent contractors, and therefore were entitled to the statutory rights afforded to workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. The Supreme Court judges unanimously upheld this decision. It also found that they were working from the time they switched on the app.
In reaching their conclusion, the Judges highlighted the following points which all indicated that Uber was in the more dominant position, like an employer, and unlike in a self-employed contractor situation where there is more equality:
- Uber sets the fares for each ride the drivers carry out and the drivers are not permitted to set their own prices as they would if they were self-employed.
- Uber sets the terms and conditions of using its service.
- Drivers face penalties for cancelling or not accepting rides – sometimes preventing them from working, such as being unable to access the app for a limited time.
- Uber has significant control over the way that drivers work, as they face a rating system. Should a driver’s Uber rating fall below a certain level they face penalties or termination of their contract.
- Uber takes active steps to prevent drivers and passengers from having an agreement outside of the Uber app.
Additionally, the case once again highlights that in determining whether a worker or self-employed contractor situation exists, it will always examine the reality of the actual relationship between the parties over whatever documentation may have been prepared between them.
The Court also decided that the drivers became ‘workers’ from the time they switched on the app and were available to work in their designated area, to the time they switched off the app. This means there will now be a significant number of minimum wage, backpay and holiday pay claims made against Uber. It will undoubtedly open the floodgates for other ‘gig-economy’ workers to make claims against employers.
Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
An application for judicial review of the Self-Employment Income Support Scheme (SEISS) on the basis that it was indirectly discriminatory has been rejected by the High Court. Under the SEISS, grants were awarded to self-employed individuals based on average trading profits in the three full tax years preceding 2019/20. The application was brought by a self-employed mother and a maternity rights charity, The Motherhood Plan. They argued that the SEISS breached Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1, in two ways:
- It was indirectly discriminatory to calculate grants based on average trading profits in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to.
- Applying Thlimmenos v Greece  ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court was not persuaded that there was any indirect discrimination. The disadvantage complained of was not caused by the SEISS itself; rather, it flowed from an absence of or reduction in past income. There were no hidden barriers to eligibility and it was not harder for women on maternity leave to quantify their earnings than for others. The fact that some claimants received lower grants than others reflected the fact of lower earnings in past years; in the context of the SEISS with its stated purpose, the reasons for the lower earnings in past years were irrelevant.
In relation to Thlimmenos, the Court noted that the claimants’ arguments would be to demand redress under the SEISS in relation to their unique situation in the past. There was no authority to support the proposition that uniqueness or difference in the past is a basis on which to require different treatment in the present, such that failure to accord that different treatment amounts to unlawful discrimination. Even if there had been discrimination, the court found that this would have been justified. The government had a broad margin of appreciation in this context and the design of the SEISS was not manifestly without reasonable foundation. Additionally, the government had not breached the public sector equality duty in section 149(1) of the Equality Act 2010.
Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
In Allay (UK) Ltd v Gehlen  UKEAT/0031/20 the EAT has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on section 109(4) of the Equality Act 2010. The employment tribunal was entitled to find that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale“, there was evidence that the training was insubstantial and that employees had forgotten it. It was also appropriate to find that a further reasonable step could have been to offer refresher training. Therefore, the employer could not show that all reasonable steps had been taken.
There are few reported cases that consider the reasonable steps defence. This case illustrates that in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately, it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination.
Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
In, Cumming v British Airways plc  UKEAT/0337/19 the EAT has held that, when determining whether a provision, criterion or practice (PCP) was indirectly discriminatory against women due to their greater childcare responsibilities, the tribunal should consider whether the PCP put women at a particular disadvantage, not whether the PCP applied to all employees in the pool equally. British Airways plc had a policy that aircrew who took three days’ unpaid parental leave would lose one paid rest day that month. Ms Cumming argued that the PCP was indirectly discriminatory against women, as a higher proportion would take parental leave than men. It was common ground that the correct pool for comparison was all aircrew with childcare responsibilities. An employment tribunal rejected her claim on the basis that the PCP applied equally to all aircrew so there was no particular disadvantage to women.
The EAT held that this was an error of law. The fact that the PCP affected all employees who took parental leave in the same way did not mean that there was no particular disadvantage to women. Not all employees with childcare responsibilities would take parental leave. There was statistical evidence to show that more female than male aircrew took parental leave and therefore more women were adversely impacted by the PCP. Further, in Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice  UKSC 27, Lady Hale observed that women tended to “bear the greater responsibility for caring for the home and family than…men“. The tribunal had therefore failed to consider whether more women were put to a particular disadvantage by the PCP than men in the same circumstances. The EAT remitted the case to a fresh tribunal.
Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
In Chalmers v Airpoint Ltd and others  UKEATS/0031/19 the EAT has upheld a tribunal’s decision that an employee’s comment in her written grievance that the employer’s actions “may amount to discrimination” was not sufficient in the circumstances to amount to a protected act under section 27(2)(d) of the Equality Act 2010 for the purposes of her victimisation claim. The employee’s statement related to the fact that the employer had arranged a Christmas event on a date she could not attend. The EAT held that the tribunal was entitled to take into account the factual context surrounding the allegation. The employee worked in the human resources field and was articulate and well-educated. The use of the word “may“, and the failure to refer explicitly to sex discrimination, could be contrasted with the fact that the employee had complained in clear terms about other matters. Further, the tribunal had found that no discrimination had occurred in relation to the Christmas event and, on the day of the event, the employee had expressed her dissatisfaction to the managing director but had not complained of discrimination.
While a tribunal was not required to interpret the words used by an employee literally and there would be circumstances in which the use of equivocal language would amount to a protected act, this would depend on the context and the tribunal’s assessment of the evidence, including whether the employee was the type of person likely to express themselves cautiously. On the evidence before it, the tribunal was entitled to conclude that an allegation of sex discrimination had not been made, the word “may” usually signifying doubt or uncertainty, and given her background and experience, the employee’s failure to refer to sex discrimination was intentional.
Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
The EAT has overturned an employment tribunal’s finding that two disclosures made by a consultant solicitor about alleged overcharging by the firm for which he worked, had not, in the solicitor’s reasonable belief, been made in the public interest, and so were not protected disclosures under the whistleblowing legislation.
In Dobbie v Felton t/a Feltons Solicitors  UKEAT/0130_20_1102 the EAT found that the guidelines set out by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979 had not been properly considered. If the solicitor held a genuine and reasonable belief that his disclosures were in the public interest, that did not have to be his predominant motive in making them. If he reasonably believed that he was disclosing information that tended to show the firm was overcharging the client, in breach of the Solicitors Accounts Rules or other regulatory obligations, the disclosures did not cease to be protected merely because they were made in the context of concerns about the client’s prospects of recovering litigation costs from its opponent. The tribunal had limited its reasoning to consideration of only one of four relevant factors in Chesterton: the numbers in the group whose interests the disclosure served. This had led the tribunal to determine that it was a private matter between the client and the firm. The tribunal had not considered whether the protection of one client alone could have constituted the protection of a “section of the public“.
A disclosure of information relevant to only one person can be a matter of public interest, such as in the case of a one-off error in the medical treatment of a patient. In this case, the disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.
The tribunal had also applied the wrong legal test for causation in concluding that the solicitor’s disclosures had had little influence on the firm’s decision to terminate his consultancy agreement. The correct test was whether the disclosure had a material influence on the firm’s decision to terminate the agreement. If the making of one or both of the protected disclosures was an effective cause of the termination, a detriment would be made out, even if the agreement would have been terminated in any event.
Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
In Northbay Pelagic Ltd v Anderson  UKEATS/0029/18 the EAT has held that an employer was not entitled to dismiss an employee who was conducting surveillance in the workplace, noting that the employer had failed to conduct a balancing exercise between the right to privacy and the employee’s desire to protect his confidential information. The employee had set up a camera to monitor whether anyone had entered his office to access his computer. However, the case was remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis he failed to follow a management instruction.
The EAT also held that if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be “sealed off” from one another. It further highlighted the need to ensure evidence is adduced from relevant witnesses, suggesting the employer’s failure to do so in this case may have led to the tribunal preferring the employee’s evidence over that of the employer.
Intellectual Property: Employer owned copyright relating to software
In Penhallurick v MD5 Ltd  EWHC 293, the Intellectual Property Enterprise Court found in favour of the defendant, MD5 Ltd, in copyright infringement proceedings, granting a declaration that MD5 was the owner of copyright in various literary works relating to software created by the claimant, Mr Penhallurick, who was MD5’s employee from November 2006 until April 2016.
The works in issue were various versions of the software, a graphical user interface and a user guide. The judge’s decision on ownership, and therefore infringement, turned on whether each of the works was created in the course of Mr Penhallurick’s employment with MD5.
Judge Hacon said that it was clear from the evidence that making the software was the central task for which MD5 was paying Mr Penhallurick at the relevant times. Where there was such a strong and primary indication, the fact that some of the work was done in his home and using his own computer would not make any difference to the fact that it formed part of his employment duties. All versions of the software were created by Mr Penhallurick with the knowledge and encouragement of MD5 and in return for payment, and all were directed to making and improving the software product sold by MD5. MD5 was therefore also the first owner of copyright in all the versions. Copyright in these (along with copyright in the other works in issue) was also assigned to MD5 under an intellectual property clause in an agreement between the parties made in November 2008. MD5 was therefore the owner of copyright in all the works. The fact that Mr Penhallurick had identified himself as the copyright owner on each version of the software and in the user guide did not create any presumption of ownership under section 104 of the Copyright, Designs and Patents Act 1988.
The judge granted a declaration of MD5’s copyright ownership in relation to all the works in issue, other than two pleaded works which he had found to be of doubtful existence and of no relevance to the claim.
COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
The TUC, Amnesty International and dozens of other organisations have called on the Equality and Human Rights Commission (EHRC) to investigate the alleged disproportionate equality impact of the government’s response to the COVID-19 pandemic, particularly on women and minority groups. In response, the EHRC said that “While government focuses on the current crisis we do not consider it appropriate to use our legal powers“. However, it added that it will seek input and monitor the government’s response to the ongoing inequality and human rights issues, and “where necessary take the appropriate action“.
This follows a report entitled ‘Unequal Impact? Coronavirus and the gendered economic impact‘ published this month by the Women and Equalities Committee. The report addresses a number of areas including labour market and employment, benefits and social security, young people, pregnancy and maternity discrimination, childcare, the extent to which gender equality has been embedded into policy responses to the COVID-19 pandemic, and how to improve equality data.
The report made wide-ranging recommendations, including that the government should:
- Remove the 26 weeks’ service threshold for employees to request flexible working arrangements.
- Publish the draft Employment Bill by the end of June 2021 and that the Bill must take into account the recommendations of the report.
- Introduce legislation in this parliamentary session to extend redundancy protection to pregnant women and new mothers.
The committee made further recommendations in relation to pay gap reporting. It urged that gender pay gap reporting be reinstated with reporting for the financial years 2019/20 and 2020/21 required in April 2021, and that the government should publish proposals for introducing ethnicity and disability pay gap reporting within six months.
The report highlights the need for equality impact analyses to be undertaken in relation to key schemes, such as the Coronavirus Job Retention Scheme and the Self-Employment Income Support Scheme.
COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
Personnel Today reports that a survey conducted by Small Business Prices, to mark this year’s partnership week (8-14 February), has revealed that apprenticeship starts fell by 45.5% overall since the beginning of the initial lockdown compared to the same period in 2019, with health and social care suffering the biggest blow with 11,063 (46%) fewer starts. Starts in administration, business management, and hospitality and catering apprenticeships were also adversely affected by the pandemic, suffering a fall in starts of 9,783 (62%), 7,031 (40%) and 5,411 (70%) respectively.
Flexible Working: CIPD calls for flexible working to be day-one right for employees
The CIPD has launched a new campaign calling for the right to request flexible working to be a day-one right for all employees and for employers to advertise jobs as flexible. This comes after its research found that 50% of employees surveyed did not have flexible working arrangements, such as flexitime and part-time working. Furthermore, 20% of respondents revealed that their organisation did not offer any flexible working arrangements.
While the survey also saw a huge increase in working from home amid the COVID-19 pandemic, CIPD noted that more than two in five employees were not able to work from home, largely due to the nature of their employment.
Mental Health: Commission reveals £8,400 mental health income gap in the UK
The Mental Health and Income Commission, a collaboration of businesses, trade unions and charities led by the Money and Mental Health Policy Institute, has published a report revealing that the UK’s current mental health income gap is £8,400. The Commission’s report, ‘Closing the gap‘, also found that one in five people with mental health problems in the UK have faced workplace discrimination.
In response, the Commission calls on employers and the government to introduce ameliorative measures and systemic reforms to reduce the pay gap and improve working conditions for workers with mental health problems. These include the right to flexible working for all employees during the COVID-19 pandemic, an increase in Statutory Sick Pay and a broadening of its eligibility criteria, as well as introducing a legal pay gap reporting requirement for larger companies to reveal the inequalities and discrimination faced by employees with mental health problems.
Notably, three in ten people with mental health problems experienced an income reduction during the pandemic. More generally, the Commission found that one in five respondents with mental health problems said that they had suffered workplace discrimination due to their condition, including being passed over for promotion or being made redundant. Further, more than two-thirds had their requests for reasonable adjustments rejected or only partly met.
Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
A research report published by the CIPD entitled ‘Inclusion at work: Perspectives on LGBT+ working lives’, has revealed that, over a twelve-month period, more than 40% of LGB+ workers and 55% of trans workers faced conflict in the workplace (use of the term LGB+ in the report’s findings relates to specific ways in which the research was conducted).
The report’s classifications of “conflict situations” include those in which workers were humiliated or undermined, faced discriminatory behaviour, or experienced physical or sexual assault. 18% of trans workers reported feeling psychologically unsafe at work (unable to be accepted, valued, or voice their concerns) and 16% of LGB+ workers felt the same way. This figure fell to 10% for heterosexual workers. The data revealed that trans workers are particularly unsafe in the workplace, with 12% of trans workers experiencing unwanted sexual attention at work and 2% experiencing sexual assault, and at least 50% of workplace conflicts experienced by trans people remaining unresolved.
The CIPD has suggested a range of steps that organisations can take to improve support for LGBT+ staff in the workplace, including initiating company-wide education on inclusion, and the creation of safe spaces and networks for LGBT+ employees and allies.
Pensions: Pension Schemes Act 2021 gains Royal Assent
The Pension Schemes Act 2021 has completed its progress through the parliamentary procedure and received Royal Assent on 11 February 2021 in what the government has called “the biggest shakeup of UK pensions for decades”. The Act contains major changes for both defined benefit and defined contribution pension schemes, including new powers for the Pensions Regulator, and the regulatory frameworks for collective defined contribution schemes and pensions dashboards.
The majority of the Act’s provisions will be brought into force following subsequent statutory instruments and consultations that are expected in the coming months, although several sections containing regulation-making powers take effect from 11 February 2021. The headline issues are tougher powers for the Pensions Regulator, with two new criminal offences with a wide scope and include unlimited fines and up to seven years in jail. There will shortly be a consultation on how it will apply these new powers, with the aim for these to be in use by the autumn. Companies and trustees may need to seek legal advice to ensure they don’t fall foul of any of these new powers. There will also be a new regime for defined benefit contributions with detailed regulations aimed to be published in the second quarter of the year. Certain occupational schemes will need to address climate change risks and opportunities. Again, regulations are to be published. For individuals, there will be a new pensions dashboard. The aim is for this to be provided by the Money and Pensions Service by 2023.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
- Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
- Holiday pay: Part-year workers not subject to pro rata reduction
- Worker status: Out of hours GP is a worker despite using limited company
- Disability Discrimination: Tribunal must address all four limbs of the definition of disability
- Harassment: Conduct that creates an offensive or humiliating environment
- Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
- Information Commissioner’s Office: Brexit hub
- Data Protection: Subject Access Requests and Individual Rights – timescales changed
- Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
- Non-Disclosure Agreements: Law Society publishes new guidance
- Upskilling: Give me the chance to save my job
Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
In Barrasso v New Look Retailers Limited UKEAT/0079/19 the EAT had to consider how ‘employee shareholder status’ is terminated, as it is not provided for under the Employment Rights Act 1996 (‘ERA’). The concept of ‘employee shareholder status’ was introduced in 2013. It applies to those who are employed by a company in which they are issued £2,000 worth of fully paid up shares, having first agreed to be an employee shareholder and received information about the status, its rights and independent legal advice. Having the status means they retain some key employment rights but give up others (in return for the shares), such as the right to claim unfair dismissal or receive a statutory redundancy payment. S.205A of the ERA prescribes how one achieves this status but it silent on how it is terminated.
Mr Barrasso was employed as UK Managing Director by New Look until it was sold to another company and he was offered 7,000 shares in the parent company if he signed an Employee Shareholder Agreement (and met the criteria under the ERA), which he did. He was reassured by side letter (signed as a deed between the parties) that he would receive contractual benefits equal to the statutory employment rights he was giving up. He subsequently signed a new director’s service agreement (to standardise terms for all the directors) as a deed. This agreement contained a ‘complete agreement clause’ which purported to preserve the effect of the side letter (not mentioning the Employee shareholder agreement), whilst superseding all other agreements.
Believing that his employee shareholder status had been terminated by the service agreement when Mr Barrasso’s employment was terminated he brought a claim for unfair dismissal. The tribunal dismissed his claim on the basis that the service agreement made no reference to the employee shareholder status – therefore did not supersede it – and the side letter meant the statutory rights had been removed in favour of his contractual rights. He appealed to the EAT, who agreed with the tribunal’s findings. They also looked at how the status could have been terminated practically-speaking, given that the ERA is silent on this, citing examples such as: a new contradictory contract, or an agreement to sell back the shares. It was clear to the EAT however, that the intention of the parties was not to alter Mr Basrrasso’s employee shareholder status by signing his service agreement.
Holiday pay: Part-year workers not subject to pro rata reduction
The Court of Appeal has overturned the decision of an employment tribunal (Harpur Trust v Brazel  EWCA Civ 1402), finding that it should not have read words into reg.16 of the Working Time Regulations 1998. The tribunal had been wrong to read it as if it meant the annual leave entitlement of ‘part-year workers’ (people who work only part of the year) on permanent contracts should be capped at 12.07% of the annualised hours. The Court accepted that ECJ rulings may allow employers to use the Working Time Directive to pro rate the annual leave entitlements of part-year workers to that of full-year workers, but member states may implement better arrangements. There is no requirement in the Working Time Regulations to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably, it is simply a protection for part-time workers to not to be treated less favourably than full-time workers.
There is a lesson here: employers who employ the 12.07% approach to pay holiday to staff on zero hours permanent contracts should consider their potential exposure and their options. The calculation exercise required by regulation 16 of the WTR 1998, which involves identifying a week’s pay and multiplying it by 5.6 weeks, is straightforward and should be followed, even if it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay (in this case, 17.5%). How the 5.6 weeks’ holiday entitlement itself should be calculated for part-year workers remains unclear, however. As a direct result of this case, BEIS has removed its holiday pay calculator from its holiday pay guidance for workers without fixed hours or pay. BEIS are currently reviewing this.
Worker status: Out of hours GP is a worker despite using limited company
In Community Based Care Health Ltd v Narayan UKEAT/0162/18, Community Based Care Health Ltd (‘CBCH’) provided out of hours GPs to the NHS (each of whom had to be fully qualified and competent), and Dr Narayan provided her services as a GP through CBCH for a number of years. She worked a regular shift pattern but did not need CBCH’s permission to take leave or work elsewhere so there was no mutuality of obligation. She did provide her own equipment and indemnity insurance, and had to work personally for the company and could not send a preferred substitute instead. CBCH audited the services of the GPs it provided to comply with its NHS contracts. Dr Narayan began to use a limited company of her own to receive her payments but never informed CBCH of this fact, merely updated her bank details.
Following an issue with some telephone advice Dr Narayan had provided and a claim that she had unjustifiably swapped duties on short notice, CBCH decided it was no longer going to offer her work. Dr Narayan brought claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. CBCH claimed she was self-employed and neither an employee nor a “worker”. The tribunal disagreed.
The judge found that Dr Narayan was a worker under s.230(3)(b) of the Employment Rights Act 1996, despite the fact that she had used a limited company to receive payments for over a year without CBCH’s knowledge. CBCH had tried to argue that this had led it to unwittingly become one Dr Narayan’s company’s clients under the ‘undisclosed principal’ doctrine (i.e. if A makes a contract with Z in A’s own name, it is open to B at a later date to assert that the contract was made by A on B’s behalf and that B is the contracting party. This means that the resulting contract is between B and Z.) CBCH claimed that therefore it was contracting with Dr Narayan’s company, and not her. This was dismissed from the appeal because it had not been argued at first hand, but in any event the fact that the contract required a competent and suitably qualified doctor precluded a company from being the contracting party. Further, the judge found that the decision in Suhail v Herts Urgent Care UKEAT/0416/11 was not a good precedent he was bound to follow in this case, distinguishing it on the basis that Dr Suhail positively marketed his services to other clients. Dr Narayan, on the other hand, worked for one provider for a number of years on a regular shift pattern. The judge also found the evidence suggested Dr Narayan had been integrated into CBCH’s business. The EAT upheld the tribunal judge’s decisions and found no error of law.
Disability Discrimination: Tribunal must address all four limbs of the definition of disability
In Parnaby v Leicester City Council UKEAT/0025/19/BA Mr Parnaby suffered depression brought about by work-related stress and was dismissed because of his long-term sickness absence due to work related stress (a capability issue). Mr Parnaby claimed this dismissal was in fact disability discrimination and/or potentially unfair. The tribunal found him not to be a disabled person for the purposes of the Equality Act 2010 (“the Act”) though it did accept that he suffered an impairment that had a substantial adverse effect on his ability to carry out normal day to day activities but held this was not long-term. In particular, the tribunal noted that Mr Parnaby had suffered work related stress for six months, but that it had ceased following his dismissal, therefore the effect was not ‘long-term’ (i.e. 12 months or more) for the purposes of paragraph 2 Schedule 1 of the Act. Mr Parnaby appealed.
The EAT allowed the appeal. It held that the tribunal had erred in not addressed all four limbs of the definition of disability contained in the Act. Mr Parnaby had suffered depression brought about by work-related stress which affected his ability to carry out his day-to-day activities – his impairment. The act of discrimination claimed was the dismissal. At that time, his impairment had not lasted for 12 months (s.2(1)(a) of Sch1 to the Act) and was therefore not ‘long-term’. However, the tribunal considered that by removing the source of his impairment (his job) then the likely future impairment and its impacts would cease. The EAT held that the tribunal should have looked at whether it was likely to last twelve months or might recur in the future (i.e. could well happen = more probable than not). It was not for the tribunal to make assumptions about the time-limited nature of his impairment. On this basis the claim was remitted back to tribunal to be reheard.
Harassment: Conduct that creates an offensive or humiliating environment
In Raj v Capita Business Services Limited & Ward EAT0074/19/LA the EAT considered the first tribunal’s dismissal of Mr Raj’s claims of unwanted conduct either of a sexual nature or unwanted conduct relating to his sex, pursuant to s.26 of the Equality Act 2010 (the “Act”). The issue was that the claimant had felt uncomfortable when his female manager massaged his shoulders in their open plan office. Whilst the tribunal found this to be unwanted conduct which created an offensive environment for him, it found that on balance, the evidence provided brought them to the conclusion that whilst the conduct was unwise and uncomfortable but not related to gender, but more likely due to misguided encouragement. This part of the claim failed.
On appeal, the EAT considered the two-stage burden of proof test set out by s.136 of the Act and explained in Igen v Wong  ICR 931. The first stage is that the claimant prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent committed an unlawful act of discrimination. The second part is only applicable if the first stage is met, and then puts the burden of proof onto the respondent who must prove he/she did not commit that unlawful act. The EAT agreed with the tribunal’s finding that in this case, the claimant fulfilled stage one – it was agreed that there was conduct that was unwanted, thereby producing “an intimidating, hostile, degrading, humiliating, or offensive environment for him”. However, the remaining issue for stage two was whether this conduct related to the claimant’s gender. The tribunal found the evidence to show a prima facie case that this conduct related to his gender to be very limited. The appeal was on the basis that the tribunal had erred in law by not approaching the test properly but the EAT did not agree; the burden of proof had not shifted to the respondent and, in any event, the explanation given by the respondent had been accepted.
Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
This is a warning case to employers involved in litigation. In Kasongo v Humanscale UK Ltd UKEAT/0129/19 the claimant brought claims of unfair dismissal and discrimination related to pregnancy and maternity. Part of the employer’s strategy was to waive its legal advice privilege (i.e. communications between a client and their solicitor which are confidential and come into existence for the purpose or giving or receiving advice about what should prudently or sensibly be done in the relevant legal context) because certain documents arguably demonstrated that it did not know about the claimant’s pregnancy at the time it was considering dismissing her. The documents comprised a draft dismissal letter prepared by the solicitors from which the solicitors notes and comments had been redacted (it was agreed that the letter itself was not legally privileged, but the redacted parts were) and two earlier documents. The issue was whether the disclosure of the two earlier documents meant that the redacted parts were no longer protected by privilege, and therefore if the tribunal had erred in its decision as to which documents were protected by legal advice privilege.
The EAT held that the tribunal had erred in failing to address or rule on one of the three documents. All three documents were part of the same transaction of providing legal advice about the dismissal of the claimant and, given the nature and purpose of the disclosure, the EAT held that fairness required that the redacted part of the letter concerning the reason for the claimant’s dismissal also be disclosed. The reason being that it would be unfair to allow the respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. Cherry-picking the parts one discloses is therefore impermissible. The appeal was allowed and the EAT ordered that the redactions be removed and the full letter be included in the trial bundle for evidence at the hearing.
Information Commissioner’s Office: Brexit hub
The ICO has put together a ‘Brexit hub’ containing checklists, FAQs and guidance to help organisations of every size in case prepare for a no-deal Brexit. A good place to stay up to date with how your business manages its data protection duties. You can also sign up to their service to receive regular emails which will let you know about any updates to the guidance.
Data Protection: Subject Access Requests and Individual Rights – timescales changed
In August, the Court of Justice of the European Union ruled on a Dutch case which considered timescales under Regulation No 1182/71. Following this ruling, the Information Commissioner’s Office has updated their guidance on timescales for responding to subject access requests (SAR), and other individual rights requests.
The effect of the ruling is that the timescale has now changed to reflect the day of receipt as ‘day one’, as opposed to the day after receipt. For example, a SAR received on 3 September should be responded to by 3 October.
Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
Following recent reforms made to the National Referral Mechanism (NRM) (a government framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support), the Home Office issued new Modern slavery victims: referral and assessment forms. The forms allow staff at designated First Responders Organisations to refer potential victims of modern slavery or human trafficking to the NRM.
The recent reforms to the NRM include:
- The Home Office created a single, expert unit to handle all cases referred to it to handle decision making about whether somebody is a victim of modern slavery. This replaces (and is completely separate from) the case management units in the National Crime Agency and UK Visas and Immigration.
- All negative Conclusive Grounds decisions will now be reviewed by an independent panel of experts, to increase the scrutiny such cases receive.
- The NRM process will be supported by a new digital system, enabling easier referrals, data capture and analysis, aimed at improving prevention and law enforcement.
For more details on which organisations form part of the First Responders list, see the government website.
Non-Disclosure Agreements: Law Society publishes new guidance
Following our reporting of the Women and Equalities Committee’s review of the use of Non-Disclosure Agreements in discrimination cases, the Law Society has now published a brief guidance leaflet called ‘Non-disclosure agreements: what you need to know as a worker’. This is just as helpful to employers as it summarises both the things employers cannot stop workers from doing and explains the restrictions commonly imposed on workers prior to signing the NDA.
This has been published as part of the Law Society’s new legal education initiative to assist the public understand their rights.
Upskilling: Give me the chance to save my job
PwC has recently published a new study called ‘Upskilling Hopes and Fears’, based on a survey of 22,000 people globally, of whom 2,004 were UK adults in the age range 18-65 (retirees were not included). Their findings show that 73% of workers would welcome the opportunity to expand their knowledge of new workplace technology while 54% of those questioned said they would be happy to learn new skills or completely retrain in order to improve their future employability. But many UK workers say their employers are not offering opportunities to upskill. People fear automation in a growing digital world will lead to fewer jobs and this lack of investment in the workforce is breeding mistrust of employers among workers.
The research also highlights disparities in upskilling opportunities by gender, education, and age:
- Over half (54%) of men surveyed say their employer is giving them the chance to learn new skills, as opposed to only 45% of women. Over half of women (55%) say they are offered no opportunities at all.
- 56% of university graduates say they are offered them, whereas only 41% of those educated to school leaver level say the same.
- 64% of workers aged 18-34 say they are offered opportunities, compared with 48% of 35-54 year olds and 41% of ages 55 and over.
These results highlight the need for organisations to look seriously at offering upskilling opportunities for staff – particularly in the UK where three-quarters (73%) of workers would take the opportunity to better understand or use technology if they were given the option by their employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.