REUTERS | Maxim Shemetov

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. Continue reading

REUTERS | Michaela Rehle

Substitution and worker status

2017 has seen a series of cases concerning limb (b) worker status arising from the ‘gig economy’. Putative workers have claimed entitlements to be paid the minimum wage, holiday pay and so on, on the basis that they meet the definition of a ‘limb (b)’ worker, viz. a person working under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” (Section 230(3), Employment Rights Act 1996. See the similar definitions in the Working Time Regulations 1998, the National Minimum Wage Act 1998, Employment Relations Act 1999 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.) Continue reading

REUTERS | Thomson Reuters

Does an employer have a claim in property to the emails, or the content of emails, that were sent by employees from their employer’s email accounts?

The High Court recently considered this question in the context of an application for interim relief in a team move case. The draft order sought by the claimants (Capita and another) included a provision requiring the ex-employee defendants to forward to the claimants’ solicitors “copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)” (emphasis added). Continue reading

REUTERS | Russell Cheyne

Holiday pay and working time. In a decision with potentially huge ramifications for misclassified workers, the ECJ has held that workers who are wrongly told they have no right to paid holiday may carry their holiday rights over indefinitely, and be paid in lieu, on termination, for any untaken holiday over their entire period of employment.  In another working time case, the ECJ has followed the Advocate General’s opinion that that a weekly rest period may be given on any day during the seven-day reference period, and does not always have to be granted on the seventh day following six consecutive working days.

Discrimination by statutory bodies. The Supreme Court has held that an employment tribunal has  jurisdiction to hear a doctor’s discrimination claims against the General Medical Council (GMC). As the claim related to the merits of the decision (as opposed to its legality or the way in which the decision was reached), a tribunal provided the natural and obvious remedy. The Supreme Court also held that a Police Misconduct Panel does not have judicial immunity against a discrimination claim by a police officer. The decision has implications for other statutory bodies charged with hearing cases of professional misconduct.

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REUTERS | Ali Hashisho

In my last blog post, I considered the cases of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] UKEAT/0058/17 and the difficulties faced by both claimants and respondents in ‘tainted information’, or ‘Iago’, cases, where employers are manipulated into dismissing employees by their co-workers .

In this blog post I look at possible approaches for parties to take when bringing or defending such a claim. The right approach will vary depending on the particular employer and factual scenario.  However, the following are matters that should at least be considered by advisors in such cases, even if the sensible advice in some cases will be to reject them. For employers, some steps will have to be considered before any claim arises.

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REUTERS | Tobias Schwarz

‘Tainted information’, or ‘Iago’, cases, in which employers are manipulated into dismissing employees by their co-workers, have thrown up difficult questions for Tribunals in both whistleblowing and discrimination claims. The latest guidance has been given in two recent cases: Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] UKEAT/0058/17.

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REUTERS | Denis Balibouse

Discrimination. The ECJ has held that an employer’s failure to assess the workplace risks posed to a breastfeeding worker amounted to direct sex discrimination. The decision challenges the position of UK law which prevents a woman from bringing a direct sex discrimination claim if she has suffered a detriment related to breastfeeding. The ECJ has also held that a minimum height requirement for the Greek police was indirect sex discrimination which could not be objectively justified.  Particular physical aptitude was not necessary for all police functions and in any case height was not necessarily connected to physical aptitude.

The Court of Appeal has held that a faith school’s segregation of girls and boys amounts to direct sex discrimination against both sexes. Irrespective of whether boys and girls are equally disadvantaged, direct discrimination should be viewed from an individual perspective as opposed to comparing the treatment of one group to another. While not an employment case, this decision has implications for the definition of direct discrimination in employment cases.

The EAT has clarified the Court of Appeal’s ruling in CLFIS (UK) Ltd v Reynolds, holding that a decision, if made jointly, will give rise to liability under the Equality Act 2010 when there is a discriminatory motivation on the part of any of the decision-makers. Continue reading

REUTERS | Kai Pfaffenbach

In June 2017, the Employment Appeal Tribunal’s (EAT) decision in the University of Sunderland v Drossou EAT/0341/16 changed the established practice regarding how Employment Tribunals (ETs) approach the calculation of a week’s pay for compensation purposes.

Prior to Drossou, the convention was that a week’s pay under the Employment Rights Act 1996 (ERA 1996) did not include employer contributions to the employee’s pension – in the case of Payne v Port of London Authority ET/155560/89 it was found at the ET (and was not considered further when the case went to the EAT and the Court of Appeal) that the payment had to actually be received by the employee to be included in a week’s pay. Continue reading