Perhaps the most eye-catching employment law news this month has been the decision in the European Court concerning the invalidity of the US Safe Harbour regime as a means of transferring data lawfully to the US. I have included as the last item in this month’s Newsletter a piece by my former colleague and an expert in data protection law, Olivia Whitcroft of law firm OBEP, on the consequences of this ruling.
Otherwise, there have been some interesting cases on discrimination and a reminder of the importance of following the law when undertaking large-scale redundancies.
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The Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s decision to award the maximum 90 days’ pay to affected employees where no collective consultation had taken place due to the employer’s ignorance of its legal obligations.
The governors of an independent school went through the full process of closing the school and dismissing the staff without taking any legal advice. Even though the failure to consult collectively was not deliberate, the failure to take legal advice was, and so the maximum protective award was made. Ignorance of the law was, indeed, no defence.
This case has been reported at around the same time that Dave Forsey, CEO of Sport’s Direct, faces criminal charges for failing to submit a form HR1 in relation to large scale redundancies at a site in Scotland.
Both of these situations are a reminder of the dangers of not complying with the consultation and notification duties in multiple redundancy situations. (E Ivor Hughes Educational Foundation v Morris & Others UKEAT/0023/15.)
The allegation against the employee in Royal Borough of Greenwich v Syed (UKEAT/0244/14) was that he used his work email account for personal communications during work time. He participated in an investigation meeting, but did not attend the disciplinary hearing or any further meetings as he was certified as unfit for work.
The Council gave him the option of making written representations, which he failed to do, and so the disciplinary hearing was eventually held in the presence only of his trade union representative. The outcome was that he was dismissed.
The EAT disagreed with the Employment Tribunal decision that it was a condition of a reasonable process that an employer must delay a disciplinary hearing for an unlimited time when the employee is certified as unfit for work. Such a condition was wrong, said the EAT. It sent the case back to the Tribunal to decide whether the employer had acted reasonably in the circumstances.
Many employers will face this common situation and will be heartened to know that it is possible to go ahead with disciplinary hearings in the absence of the employee, rather than having to wait indefinitely before making a decision.
That said, a reasonable employer will be expected to allow a reasonable period for recovery. If the absence looks to be lengthy and the hearing is to proceed, the employee should be allowed an opportunity to state their case in a variety of ways, for example by written representations, a telephone hearing or a hearing in the presence of their representative.
I am often asked to advise on situations in which an employer wishes to dismiss an employee whom it believes is falsely claiming to be sick. The best advice is to be cautious, because there is always the risk that the sickness is genuine and possibly even amounts to a disability.
That was exactly the scenario in Hall v Chief Constable of West Yorkshire Police (UKEAT/0057/15). The belief that the sickness claims were false was in fact mistaken and the employee was suffering a disability. The question considered by the EAT was whether this was capable of being discrimination on grounds of that disability, or was the link between the disability and the decision to dismiss too weak?
According to the EAT, it was not too weak. There only needs to be a loose causal link between an employee’s disability and any unfavourable treatment in order for an employee to establish a disability discrimination claim.
This bizarre concept sounds less strange when the facts of EAD Solicitors LLP and others v Abrams (UKEAT/0054/15) are considered.
Mr Abrams was a member of EAD, a law firm set up as limited liability partnership (LLP). As he approached retirement, he set up his own limited company, of which he was the sole director. This company replaced him as a member of the LLP and provided his services to it.
Mr Abrams went on providing services to EAD through his company beyond the date when EAD were expecting him to retire. They therefore objected to his limited company continuing as an LLP member.
As a result, Mr Abrams’ limited company made a claim of age discrimination, arguing that it was being discriminated against by virtue of its connection to Mr Abrams and, specifically, his age. The EAT has allowed this claim to proceed. Even though it was A’s age which was the issue, not a characteristic of the member of the LLP itself, the corporate member could still claim. The case is now back in the Tribunal for its merits to be considered.
The EAT has decided that an employee who lived at his place of work was not entitled to the National Minimum Wage during the night, even if he is on call. He was only entitled to the NMW for the hours during which he was awake and working.
The EAT took into account the fact that there was another night worker on duty and that, in practice, the employee is rarely called upon. (Shannon v Clifton House Residential UKEAT/0050/15.)
A relatively recent change to the whistle-blowing laws limits protection to where the worker has a reasonable belief that disclosure is in the public interest. This change was aimed in part at excluding protection where the legal breach was essentially a private matter between employer and employee.
A couple of recent EAT cases may be cutting down the impact of that change by deciding that an employee can be protected for raising a contractual matter that affects a group of employees.
Mr Underwood worked as a driver for Wincanton until he was dismissed. He maintained he had made a protected disclosure when he and three other drivers wrote a letter complaining about unfair allocation of overtime. The letter suggested, albeit not very clearly, that overtime was being withheld from drivers who were regarded as particularly careful about vehicle safety and roadworthiness.
Was this ‘in the public interest’ or was it, as Wincanton maintained, in effect a collective grievance about a contractual matter?
The EAT pointed to a recent earlier decision that the ‘public interest’ requirement could be met by a relatively small group of persons, who could be employees of the same employer with the same interest in the matter as that raised by the claimant. In that previous case there was an allegation of fraud. Here there was a suggestion that health and safety was involved so the outcome should be the same – the public interest test was met. Whether it will be met where there is no issue such as fraud or health and safety is a matter for another case on another day. (Underwood v Wincanton plc UKEAT/2015/0163.)
If TUPE is to apply to a service provision change there must be an organised grouping of employees carrying out the activities in question.
A slightly unusual but probably far from unique situation arose in Inex Home Improvements Ltd v Hodgkins and ors (UKEAT/0329/14). Work on a project Inex had for one of its clients ended so Inex temporarily laid off some of the employees who had been working on the client contract, pending the next order from the client. However, during this lay-off period the client decided to cease working with Inex, and sourced their work from another contractor. Did the laid off staff transfer under TUPE?
In the Employment Tribunal the Judge ruled that as those employees were not working at the time of the transfer they were no part of an organised grouping and consequently could not transfer to the new contractor.
The EAT disagreed. It decided that it did not matter that they were temporarily laid off; they remained an organised grouping. Their employment should transfer to the new contractor. To hold otherwise would mean that it would be too easy to frustrate the intention of TUPE, which is to protect employees’ employment rights.
I doubt you missed the headline coming out of the recent Conservative Party conference that the Government is planning to extend shared parental leave to include grandparents. Its aim is to bring this in by 2018 following a consultation during the first half of 2016.
This will only affect working grandparents as non-working grandparents are unlikely to meet the eligibility criteria.
Clients grappling with the question of whether they should carry their enhanced maternity pay regime into shared parental pay should reflect on the consequences of this extension. If shared parental pay must be paid equally to fathers as well as mothers to avoid gender discrimination claims, would the exclusion of grandparents prompt allegations of age discrimination?
On 6 October 2015, the Court of Justice of the European Union (CJEU) ruled that the EU Commission's Safe Harbour Decision (2000/520/EC) is invalid. This means that EU employers who transfer employee data to the US can no longer rely on the fact that the recipient is listed on the US Safe Harbour register to guarantee that they have overcome legal restrictions on such transfers. This includes sending data to group companies, business partners or service providers located in the US.
The ruling has other implications, as the CJEU confirmed that any measures taken to overcome the restrictions are open to examination by national data protection authorities (including the Information Commissioner's Office in the UK) on a case by case basis. In addition, a key risk of data transfers to the US (whether or not the Safe Harbour scheme applies) is the potentially unfettered access to data by US public authorities.
Employers (including those who have not been not relying on the Safe Harbour) are therefore well advised to undertake a risk assessment of existing and proposed transfers of staff data outside the EU, particularly to the US. For transfers within the employer’s group, alternative measures, such as use of contractual terms or binding intra-group policies, may address the risks. Where an organisation uses a service provider to store or process employee data (such as a technology company), it should ensure it has a full understanding of where the data is going; even EU service providers may have servers or data storage facilities in the US or elsewhere. Appropriate solutions should be discussed with the provider (and some of the big providers based in the US are already offering contractual solutions in addition to Safe Harbour).
The UK Information Commissioner has advised organisations to "keep calm and carry on", indicating he will give organisations time for to find alternatives to Safe Harbour before taking enforcement action. On 15 October 2015 he was meeting with EU counterparts in Brussels to discuss a consistent solution across the EU.
Olivia Whitcroft, Principal of OBEP
Tel: 07887 423429