Employment News – Case Update March 2022
A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.
- Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
- Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
- Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
- Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
In, Nursing and Midwifery Council v Somerville  EWCA Civ 229, the Court of Appeal has confirmed that an “irreducible minimum of obligation” is not needed to establish worker status under the Working Time Regulations 1998 (WTR 1998). Mr Somerville, a panel member chair of the Nursing and Midwifery Council’s Fitness to Practice Committee, worked under an overarching contract. This contract did not oblige the Nursing and Midwifery Council (the Council) to offer hearing dates to him, and he was under no obligation to accept any dates offered to him. Applying Uber BV and others v Aslam and others  UKSC 5, the court found that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he was a worker when he was actually working.
In addition, the fact that Mr Somerville could withdraw from an individual agreement to attend a hearing even after he had accepted a particular date did not change the Court of Appeal’s view. He entered into an individual contract for an individual assignment which existed until terminated and had to be read alongside the overarching contract. If an individual contract was not terminated and he chaired a hearing, he would, in the language of section 2(1)(b) of the WTR 1998, have worked under a contract personally to perform services. There is no indication that there must be a distinct, super-added obligation to provide services independent from the provision of the services on a particular occasion. When deciding whether a specific agreement to provide services on a particular occasion amounted to a worker’s contract, the fact that the parties were not obliged to offer, or accept, any future work was irrelevant.
The Court of Appeal’s decision confirms what was previously understood to be the position, that an “irreducible minimum of obligation” is not an essential requirement for worker status. The analysis of the Uber Supreme Court decision also adds to the often-fraught discussion of what it means to be a worker. That said, the Court of Appeal’s decision is clear: where an individual is, in fact, working or providing services personally under a contract, a finding of worker status can be made even where no overarching contract imposing an obligation to provide and accept work exists.
Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
In Fentem v Outform EMEA Ltd  EAT 36, the EAT has held that is bound by the decision in Marshall (Cambridge) v Hamblin  ICR 362. Accordingly, where an employer invokes a clause in an employee’s contract enabling it, following the employee’s resignation, to terminate their employment immediately by making a prescribed payment calculated by reference to the unexpired period of the employee’s notice, there is no dismissal under section 95(1)(a) of the Employment Rights Act 1996.
Despite reaching this conclusion, the EAT expressed misgivings about the decision in Marshall. It was strongly inclined to view Marshall as wrong and could see nothing in the reasoning that supported the conclusion that there was no dismissal in that case.
However, the EAT could only depart from its own decisions in the narrow circumstances set out in British Gas Trading v Lock  ICR 503. These include where the earlier decision was not merely wrong, but manifestly wrong. It was the outcome or proposition of law for which the decision stood that had to be the focus of consideration. If there is an argument that can reasonably be advanced in defence of the outcome that is itself not manifestly wrong, then the legal outcome could not be said to be manifestly wrong.
In this case, the employer relied on authorities concerning a scenario in which an employee’s termination date was brought forward with their agreement following their dismissal. The employee argued that these were not relevant because he had not agreed to his termination date being brought forward. The EAT accepted that these authorities may not inform the approach to the issue, but it could not say that they obviously would not. Further, it might be arguable that a contractual provision could have the legal effect that, following a resignation, the employer could cause the employment to end sooner than the date given by the employee, even without the employee’s agreement, by making a contractually-prescribed payment by reference to the unexpired notice period, in a way that only alters how and when the resignation takes effect.
Since these points could not be said to be obviously unarguable, the decision in Marshall could not be said to be manifestly wrong. Therefore, the EAT could not depart from it.
Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
In Brake and another v Guy and others  EWCA Civ 235, the Court of Appeal has dismissed an appeal in unsuccessful proceedings for misuse of private information and breach of confidence which arose in relation to a former employee’s personal emails that were sent from a business email account. The email account was used to receive enquiries about the employer’s services.
Baker LJ’s leading judgment emphasised that the success of privacy and confidentiality claims turned on the specific facts, and considered that it had been open to the judge at first instance, HHJ Paul Matthews, to find as he did. In particular, he said that it was telling that the former employee (who was the claimant in the proceedings) had shared access to the email account with two colleagues, and that her employer had set up personal accounts in the names of each of the employees at the same time as it created the business account. Baker LJ also agreed with the first instance judge that, had there been a reasonable expectation of privacy or circumstances of confidence, disclosure of the emails by the defendants for the purpose of obtaining professional advice would not have breached privacy or confidence and, even if it had, damages would have been limited.
The only point of disagreement with the earlier judgments related to HHJ Paul Matthews’ decision to split out the issue of the “iniquity defence” (that is, the public interest defence, which the judge had held was available in relation to privacy and breach of confidence claims where the defendant accessed the information unlawfully), leaving it until after his trial of other matters. Baker LJ considered that any fraudulent conduct on the part of the claimant was likely to be relevant to whether there was a reasonable expectation of privacy or duty of confidence and, if there was, whether they had been breached. He concluded, however, that this had not been determinative in the present case.
This judgment provides some guidance on ensuring that an employer will have full access to emails sent via a business account. In particular, it may be advisable to create individual email accounts for each employee who operates from the central business email address and to require them to limit private emails to the account set up in their name.
Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
In Warburton v The Chief Constable of Northamptonshire Police  EAT 42, the EAT was had to consider whether the tribunal had asked itself the correct question when deciding whether or not the claimant had suffered a detriment, and if not, which was the correct test to use.
The claimant had applied to be a police officer with the Northamptonshire Police force. In his application email he referred to what was accepted as being a protected act, namely, proceedings he was bringing in another employment tribunal against another police force (Hertfordshire Constabulary) alleging unlawful discrimination on the grounds of disability. He had made an application to join that force, which resulted in an offer which was subsequently withdrawn. The claimant was later told by the respondent that his application form had not been accepted.
The claimant pursued a claim for victimisation. The respondent’s argument for why the claimant’s application had not been successful was not due to the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed. The tribunal found in favour of the respondent and the claimant appealed.
The appeal was predicated on the basis that the employment tribunal had erred in law by misstating the test for victimisation, and the four other claims flowed from this.
The EAT held that the tribunal had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is from the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary ICR 337: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” The EAT concluded that detriment is to be interpreted widely in this context and it is what a reasonable worker might think, not just the view of a tribunal, to satisfy the test. Therefore, it was not particularly difficult to establish a detriment for these purposes and but the EAT also found that the tribunal had also not applied the correct legal test to the causation or “reason why” question. The appeal was allowed and the victimisation claim was remitted for rehearing.
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