Employment Law Newsletter – November 2019
- Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
- Redundancy: Trial period and dismissal
- Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
- Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
- Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
- Data Protection: ICO publishes new detailed guidance for Data Protection Officers
- Gender Balance: Hampton-Alexander Review’s fourth annual report published
- Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
- Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
- National Minimum Wage: Rates for April 2020 delayed by general election
- Tribunals & Courts: Closures over Christmas and New Year 2019
Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
In a decision that will make every employer roll their eyes, the EAT has recently decided that receiving a negative verification notice from the Home Office in response to an Employer Checking Service (ECS) right to work check request was not sufficient to allow an employer to withhold pay from an employee.
In the case of Badara v Pulse Healthcare Limited UKEAT/0210/18 the employer held an honest but mistaken belief that a non-EEA national (Nigerian) had to provide documentary evidence of their right to work, and this was a clause written into their contracts. Mr Badara was, in fact, entitled to an automatic right to work as a result of being a family member of an EEA national – the strict legal position irrespective of documentary evidence. Given this, when the employer requested an ECS from the Home Office, it should have provided a positive result, but for some reason came back negative. The employer therefore refused to provide Mr Badara with work and wages for fear of breaching the Immigration Asylum and Nationality Act 2006. The tribunal concluded that it was not unreasonable in the circumstances for the employer to rely on the ECS checks. However, the EAT disagreed because had the tribunal applied the ‘Additional Information’ section of the Right to Work guidance from the Home Office and the appropriate case law (Okuoimose v City Facilities Management Ltd UK EAT 2011) then it would have followed that the right to work would have been established, although the guidance states that a statutory excuse might not be established. The act of dismissal was prima facie indirectly discriminatory. The tribunal’s decision that the dismissal was justified could not stand and the employee’s claims for unlawful deduction from wages and indirect race discrimination were remitted to the tribunal for reconsideration.
A note for employers: despite the threat of the penalty provisions in the Immigration Asylum and Nationality Act 2006, Home Office guidance (and case law) states that an ECS check is not always enough to determine eligibility to work. If in any doubt, read all the guidance and seek professional advice.
Redundancy: Trial period and dismissal
In a redundancy situation, s.138 of the Employment Rights Act states that an employee is entitled to an automatic four week ‘statutory’ trial period in an alternative position if they have been dismissed as a result of redundancy, they accept an alternative role before the old one comes to an end, the new contract begins either immediately after the old role, or within 4 calendar weeks of the end of the old role, and the terms of the new contract differ from the original contract. This means that if there is no dismissal (or notice of dismissal) from the old role, then there can have been no statutory trial period.
In the case of East London NHS Foundation Trust v O’Connor  UKEAT 0113_19_2910, Mr O’Connor was told in March 2017 that due to a reorganisation, his role of Psycho-Social Intervention Worker was going to be ‘deleted’ with effect from 3 July 2017, putting him at risk of redundancy. He was offered an alternative role on a trial basis as Care Coordinator, starting from 3 July 2017. There was a disagreement as to whether this was suitable alternative employment, following which Mr O’Connor pursued a grievance. When that proved unsuccessful, the employer re-offered him the Care Coordinator position, which he declined. Mr O’Connor was dismissed in December 2017.
Mr O’Connor claimed he was owed a redundancy payment but the employer refused. It argued that the statutory trial period had ended on 9 August 2017 and the Care Coordinator role was a suitable alternative employment which Mr O’Connor had unreasonably refused. Thus, he was not entitled to a redundancy payment.
The EAT upheld the tribunal’s finding that Mr O’Connor had not actually been dismissed in July, and that the deletion of his role did not, in fact, amount to notice of dismissal – there being no rule of law which said so. The tribunal found that it was a matter of considering all the facts and circumstances to establish what happened. In this case, the evidence pointed to Mr O’Connor having started a trial in July without having been dismissed, which happened in December. The result was that this matter was remitted to the tribunal to consider the question of whether it was in fact dismissal by way of redundancy and therefore what payment may be due.
Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
The European Court of Human Rights recently handed down its decision in López Ribalda and others v Spain. The matter concerned a supermarket where the manager noticed some inconsistencies between the stock level and the sales figures, running into thousands of Euros over a number of months. The manager launched an internal investigation and installed CCTV cameras, some visible and other hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. The employees were told that the manager suspected theft and about the installation of the visible cameras, but not the hidden ones. Prior to this, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked.
The CCTV did indeed show how the thefts were being carried out, which tallied with the stock reports and till receipts. The management informed the employees’ union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. Fourteen employees were dismissed with immediate effect, including the five applicants, of whom three signed settlement agreements in which it was agreed no criminal proceedings would be brought against them and other employment claims would be waived by both sides. Only the manager and the union representative watched the CCTV footage.
The five applicants then brought unfair dismissal claims against the supermarket. The applicants objected to the use of the covert video-surveillance, arguing that it had breached their Article 8 right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings. The employer opposed the proceedings brought by the 3 employees who had signed settlement agreements but those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.
The Spanish employment tribunal found that any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights – an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. Courts are supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In this case, it had found that the covert CCTV had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Spanish Constitution. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful. Further, there had been no evidence of coercion or manipulation by the employer regarding the settlement agreements.
The Grand Chamber of the European Court of Human Rights held by a majority of 14 to 3 upheld the decisions of the lower courts that a fair balance had been struck and the intrusion was proportionate because the employer had legitimate reasons. No violation of the Article 8 right to respect for private and family life had occurred. Not being informed in advance that they would be recorded did not violate the employees’ Article 8 right to private life. The Court held that employees should have a limited expectation of privacy at work on a supermarket floor (a public area) and found that the employer had taken steps to confine the circulation of the recordings to a very limited number of people. The surveillance was limited to ten days, had stopped once the responsible employees had been identified, and the recordings were targeted at a small group of individuals.
The three dissenting judges, however, were concerned by the
growing influence and control that technology has in our world, and more particularly, the collection and use of our personal data in our everyday activities. As a living instrument, the Convention, and therefore the Court, not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for the private life of individuals.
Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
It is often the case that when it comes to an employer offering an employee a settlement agreement, they agree to pay the costs of that employee taking advice. A common fee is £500+VAT. In order for the agreement to be fair, the employee needs to be given the opportunity to discuss the effect of signing a settlement agreement which in effect means they waive all rights to pursuing any claims against the employer in future.
In the case of Solomon v University of Hertfordshire  UKEAT 0258_18_2910, one of the EAT judges made an obiter comment at the end of the judgment, basically saying that £500+VAT was not enough for an employee to take full advice on settling their claim:
… We think it clear that the advice which the Claimant could expect to receive for this sum (or any sum remotely like it) would only relate to the terms and effect of the proposed settlement and its effect on her ability to pursue her rights thereafter (see section 203(3) of the Employment Rights Act 1996). Any advice as to the merits of the Claimant’s claim and the likely award of compensation would require reading and consideration on a quite different scale. So even if the Claimant had sought advice, she would still have had to make her own lay assessment as to the merits of her claim and the likely award of compensation. The ET said, in paragraph 10 of its reasons, that the offer of £500 plus VAT was for a solicitor “to advise on the merits of a settlement”. If so, the offer was wholly unrealistic.
This may be something to bear in mind when considering settlement agreements, given the amount of the settlement and the potential claims that may be involved. This case concerned a figure of £50,000 regarding claims of unlawful discrimination, victimisation and sexual harassment.
Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
In 2017, the case of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979, set out a two -stage test for determining the question of what is in the “public interest” for whistleblowing claims (i.e. to enable the disclosure to be a qualifying disclosure within s.43B(1) of the Employment Rights Act 1996, making it a “protected disclosure”). The test states that (1) the claimant must believe, at the time of making a disclosure, that it is in the public interest, and (2) that belief must be reasonable. This is a subjective belief, about which that person must be asked directly at tribunal so that they can be cross-examined. It is up to the tribunal to consider the evidence and make findings as to subjective belief and the reasonableness of that belief.
In the recent case of Ibrahim v HCA International Ltd  EWCA Civ 2007, Mr Ibrahim was an interpreter at a hospital. He asked his employer to investigate rumours that he had breached patient confidentiality, as he wanted to clear his name and reputation. The hospital investigated his complaint but his complaint was rejected and he was later dismissed. He brought several claims to the tribunal, among which was that he had suffered a detriment following making a protected disclosure. The tribunal dismissed his whistleblowing claim on several grounds, one of which was that he had not made it in the public interest but to clear his own name. The EAT agreed, finding that Mr Ibrahim had held no subjective belief in the public interest. Additionally, the judge confirmed that breach of a legal obligation under section 43B(1)(b) of the ERA 1996 can be broad enough to include tortious duties such as defamation and those statutory duties contained in the Defamation Act 2013. It was immaterial that Mr Ibrahim had not used the word ‘defamation’ himself.
Mr Ibrahim took the matter to the Court of Appeal. The Chesterton two-stage test had been handed down after the tribunal hearing but before the judgment, and so Mr Ibrahim claimed the tribunal had not applied the test correctly. The Court of Appeal found that the tribunal erred in that it should have specifically asked him about his subjective belief, although in this case, it was probably down to the timing of the case. In addition, a further onus was on the tribunal to ensure he explained his case as he was unrepresented. The decision in Chesterton made clear that motive and genuine belief in public interest are not the same thing. Mr Ibrahim had not said anything about public interest, which hampered his case, but did not dispose of the point. His appeal was therefore allowed and the case remitted back to the same tribunal to hear evidence from Mr Ibrahim and for consideration of this point.
Data Protection: ICO publishes new detailed guidance for Data Protection Officers
The Information Commissioner’s Office (ICO) has recently published a new set of detailed guidance on ‘Special Category Data’. This guidance is targeted at:
- those people for whom the existing Guide does not provide the answers you are looking for; or
- those needing a deeper understanding of the conditions for processing special category data to help you comply in practice;
- Data Protection Officers; and
- those with specific data protection responsibilities in larger organisations.
Special Category Data is a collection of types of personal data which are likely to be more sensitive, and which are therefore entitled to receive extra protection, for example: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; health, sexual orientation, etc.
This guidance contains practical examples of special category data and its processing requirements and is arranged in four sections:
- What is special category data?
- What are the rules on special category data?
- What are the conditions for processing?
- What are the substantial public interest conditions?
It goes into detail regarding the general prohibition on processing special category and the ten exceptions to the prohibition referred to as the conditions for processing special category. The guidance emphasises the importance of identifying special category data and approaching it carefully. If your purpose is not covered by any of the processing conditions and you cannot obtain valid explicit consent, you cannot process the special category data.
Gender Balance: Hampton-Alexander Review’s fourth annual report published
On 13 November 2019 the Hampton-Alexander Review announced it has published it fourth Annual Report on improving gender balance in FTSE leadership. The original report was published in 2016 and set a target of getting a minimum of 33% women’s representation on the boards and on the leadership teams (meaning those who either sit on a company’s executive committee or directly report to members of that committee) of FTSE 350 companies by the end of 2020. According to this year’s annual report, this has been the strongest year of progress since targets were first set:
- FTSE 100 on track to reach the 33% target for women on boards ahead of the 2020 deadline.
- FTSE 250 made strong gains during the year and with sustained effort, will also meet the 2020 deadline.
- Women now hold 32.4% of FTSE 100 board positions (up from 30.2% in 2018), but 51 FTSE 100 companies have not yet achieved the 33% target.
- Women now hold 29.6% of FTSE 250 board positions (up from 24.9%), but 139 FTSE 250 companies have not yet achieved the 33% target.
- The FTSE 350 still has 2 all-male boards (5 in 2018) and 39 companies that have only one woman on the board, 28 of which have had only one woman for the second year running.
- Women now hold only marginally more chair, senior independent director and CEO roles. Across the FTSE 350 there are only 25 female chairs (5 in the FTSE 100), 80 female SIDs (20 in the FTSE 100) and 14 female CEOs (6 in the FTSE 100). There are only 74 female executive directors (30 in the FTSE 100), being 11% of executive directors in the FTSE 350.
However, it also reported that a step-change is needed for senior leadership roles below board level: 50% of all appointments next year need to go to women, or the 2020 target will not be met.
Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
The government’s Office for National Statistics has released its ‘Families and the labour market, UK: 2019’ report. It shows the employment rates of men and women with dependent children in the UK, based on data from the Labour Force Survey and Annual Population Survey. This year’s figures demonstrate that:
- The number of mothers in the labour market has reached 75.1%, a significant increase compared with 66.2% of mothers in 2000.
- The number of working fathers has increased from 89.4% in 2000 to 92.6% in 2019.
- Almost 3 in 10 mothers (28.5%) with a child aged 14 years and under said they had reduced their working hours because of childcare reasons. This compared with 1 in 20 fathers (4.8%).
- The proportion of parents who faced an obstacle fulfilling responsibilities decreased as the age of the child increased; from 34.9% of parents whose youngest child was aged between 0 and 4 years to 20.4% of parents with a child aged 11 to 14 years.
This is good news for employers who are arguably getting access to a broader talent pool with more mothers returning to work, and demonstrates how much employers need to be aware of how much family life impacts their workforce – both male and female.
Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
Nuffield Health, working with the University of Manchester and Manchester Metropolitan University, have published a whitepaper on ‘The effects of remote working on stress, wellbeing and productivity’. The opinions of over 7,000 employees were used to gather the data. The paper looks at the varied effects of remote working on different demographics and begins to explore the future of flexible working.
From the basis of the data, the paper has also made some recommendations for employers who do already, or want to, use remote working. These include:
- Having an organisation-wide policy on remote-working.
- Understanding that remote working requires significant management time to ensure it works effectively.
- Consideration of the impact of remote working on the mental health of employees.
- Avoiding the feeling of isolation by helping managers to foster social and professional interaction, and providing the sense of belonging to a bigger group.
- Giving workers training so that they are able to navigate remote working and get the most out of it.
- Developing a relationship of trust between managers and workers.
- Ensuring their working space is adequate, wherever it may be.
- Communication between employers and workers is key to many of these considerations for example, agreeing work hours.
This is an important read for all employers now that technology is enabling us to have more flexibility. A one-size-fits-all approach could be damaging as workers should be treated on an individual basis to ensure the best working relationship, getting the best out of people, which depends on their individual circumstances.
National Minimum Wage: Rates for April 2020 delayed by general election
The Budget is the usual forum for the government to announce the latest National Minimum Wage Rates which are due to take effect from the following April. This year’s Budget has been cancelled due to the general election. Usually, the Low Pay Commission presents its recommendations to the government at the end of October, following which the government sets out its response and confirms any changes thereto in the Autumn Budget.
With no place for the Chancellor to make his announcement, this may mean it is delayed until January 2020. If your business carries out pay reviews in early January this may mean setting wages without knowing whether you will be able to comply in April.
The Low Pay Commission’s (LPC) recommendations are not yet known but the CIPD have produced their submission to the LPC earlier in the year, which may provide food for thought.
Tribunals & Courts: Closures over Christmas and New Year 2019
Details have now been published by Her Majesty’s Courts and Tribunals Service (HMCTS) of the closures of courts and tribunals over the Christmas holiday period, including Crown Courts, Magistrates’ Courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and Tribunals. For more information see here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org