REUTERS | Maxim Shemetov

Employment highlights: December 2017

Employee data and monitoring. The ECtHR has held that a University’s installation of surveillance cameras in student auditoriums violated Article 8 of the ECHR. Privacy must be interpreted broadly, to include the right to lead a private social life, which applied in this case because lecturers not only taught, but interacted with students in the auditoriums.

The High Court has found that an employer can be vicariously liable for the deliberate and criminal disclosure of personal data by an employee. As the first ever data breach class action, the case will have a far-reaching impact on data controllers who may face substantial financial liabilities.

Trade unions. The EAT has held that an employer’s attempt to bypass a recognised trade union by negotiating directly with its employees amounted to an unlawful inducement. The EAT confirmed that even if only one term of employment is determined by direct agreement it will be sufficient to amount to an unlawful inducement.

Meanwhile, Sir Ken Knight has published his Independent Review of Electronic Balloting for Industrial Action. Sir Ken recommended thorough testing of the measure to ensure it could withstand outside interference and manipulation. Sir Ken also proposed the appointment of independent auditors to provide impartiality throughout the end-to-end balloting process. The government has not set a date for its response.

Termination of employment. The EAT has held that an employment tribunal had erred in excluding evidence of pre-termination negotiations in an unfair dismissal claim. As the exclusion only applies to negotiations taking place before employment has terminated, it cannot be invoked until the effective date of termination has been determined.

Transfer of undertakings. The EAT has held that an outstanding equal pay claim can count as arrears of pay for the purposes of an insolvency claim from the National Insurance Fund (NIF). Claimants are entitled to up to eight weeks’ pay (subject to the statutory limit on a week’s pay) from the NIF, with liability for any excess transferring to the new employer if there is a relevant transfer.

An Advocate General has decided that there was no transfer of an undertaking when a service terminated and was resumed by another contractor after five months, even though the same premises, instruments and resources were used by the new contractor.

Whistleblowing. The EAT has held that an employee who raised a compliance issue out of concern for her own potential liability did not make a protected disclosure. She had no reasonable belief in the public interest and the reason for her dismissal was in fact the rude manner in which she communicated her concerns and her other conduct including her inability to work with others or take on board what they had to say.

Immigration. On 7 December 2017, the government announced changes to the Immigration Rules which will mostly come into force on 11 January 2018. The European Commission has also published a Q&A on the common understanding between the UK and EU on the rights of UK and EU citizens post-Brexit.

Brexit. The government has published two sets of draft regulations which illustrate how the powers under clause 7 of the European Union (Withdrawal) Bill may be used to correct employment law post-Brexit.

In other news, the government has revealed that it still has £31 million to refund following the full roll-out of its scheme for refunding tribunal and EAT fees and has outlined its strategy to address the workplace, welfare and the health system (including changes to the Fit for Work Service in England and Wales). Uber’s “leapfrog” application to appeal directly to Supreme Court has been refused, Addison Lee has been accused of “blacklisting” a worker who sued a rival company for workers’ rights, Ryanair’s working practices will be scrutinised by two parliamentary committees, and 16,000 workers will receive over around £1.7 million in minimum wage arrears. The UK’s largest company, Shell, has published its report showing a 22% gender pay gap, Clydesdale and Yorkshire Bank is seeking to address its 37% pay gap by linking executive pay to the achievement of diversity targets, and the EHRC is consulting on its draft enforcement strategy for pursuing large private, voluntary and public sector employers who fail to comply with the GPG Regulations. The EHRC has also urged companies to do more to tackle sexual harassment at work. A Green Paper has been published by the FRC on proposed revisions to the UK Corporate Governance Code and the government has also published its response to the call for evidence on the taxation of employee expenses. Lastly, the Law Commission has published its 13th Programme of Law Reform and has pledged to review Employment law hearing structures and the Immigration Rules.

In our blog, Diya Sen Gupta examines who owns the emails sent by employees from their work email accounts, and Colm Kelly evaluates the significance of contractual substitution clauses in determining worker status in two recent gig economy cases.

Next month

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