This is my last Newsletter before the Leave/Remain vote on 23 June.
You may be wondering, in the context of voting, whether a Leave decision would send me back to school to learn a whole new array of employment laws. Alternatively, would it result in my having nothing to do as rules are systematically repealed and my Butterworth Employment Law Handbook 2017 edition duly arrives in a slim A4 envelope (at a much reduced price?)? Will I be voting Remain in order to keep myself in work?
Employment law received an airing in a recent Newsnight edition, which focused on what a post-Brexit UK might look like. Specifically, did the complaints about Brussels red tape signify potential deregulation of the labour market? The Brexit advocate said not, perhaps unwilling to suggest to the lower-paid / working age Brexit voters that they would be voting for a loss of their employment protections.
Despite the politics of it, I am sure that what she said would be the case. Many employment laws – unfair dismissal, minimum wage – are nothing to do with the EU. Other areas such as discrimination laws are surely untouchable in 21st century Britain. Maybe the Working Time regulations would be looked at, but we already have the 48 hours per week opt-out anyway. Perhaps some elements of TUPE would be reviewed. The Agency Workers Directive is another possible target, given the disproportionate number of agency staff we have in UK compared with elsewhere in Europe.
But enough for me to be underemployed? I don’t think so. And, of course, we may vote to Remain.
Back in the present, discrimination cases related to religion and belief seem to be the theme of the month.
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But first: the European Parliament has voted in favour of a new General Data Protection Regulation, which will replace the EU Directive on which the much loved Data Protection Act 1998 is based. Many requirements will remain the same, but there will be some differences. The main change will be the introduction of more stringent rules on obtaining consent from individuals, including employees, regarding the use of their personal data.
This may mean that a general consent clause in a contract of employment will not be sufficient. Instead, a separate data protection consent document, unconnected to the contract, may be needed.
The new Regulation will not come into force before 2018, so there is plenty of time to prepare.
In Department for Transport v Sparks and others (2016 EWCA Civ 360) the Court of Appeal upheld a High Court decision that an absence management policy contained in a staff handbook, which included a ‘trigger point’ number of absences which could lead to formal absence management, had been incorporated into an employee’s contract of employment. This meant was that the employer was not able to vary the terms of the absence management policy, to lower the ‘trigger point’, without the agreement of the employees.
Whether a particular policy is contractual will turn on the specific facts of each case. What did the wording of and surrounding the policy actually mean? Was a binding commitment created? The takeaway is that a policy of this kind is capable of being contractual if the documents can be construed in that way. Hence it is always important to ensure that the contractual (or non-contractual) nature of the policies in a staff handbook is made clear. Usually policies such as absence management are expressed to be non-contractual so that (a) amendments can easily be made and (b) the employer will not be acting in breach of contract if it does not comply with every policy requirement.
Incidentally, the Court also stated that, where a handbook exists only in electronic form, it was far from satisfactory that various versions of it had been irretrievably deleted on updating. Previous versions should have been retained in case there is an argument over which version was applicable to a particular employee or in a given situation.
Based on the circumstances of the case of Garamukanwa v Solent NHS Trust (UKEAT/0245/15), the Employment Appeals Tribunal (EAT) decided that Article 8 of the European Convention on Human Rights did not prevent the employer from looking at an employee’s emails to a work colleague.
Mr Garamukanwa, a manager with the Trust, had had a personal relationship with a nurse. He then suspected that she had formed a relationship with another colleague (who happened to be female, which I suspect got his back up further). Management started to receive anonymous malicious emails from fictional email addresses. The nurse became concerned that Mr Garamukanwa was harassing and stalking her.
The Trust investigated, in the course of which it was given evidence by the police who were also considering the matter. The Trust concluded that Mr Garamukanwa was the sender of the malicious anonymous emails, and so they dismissed him for gross misconduct.
In his claim for unfair dismissal (which failed), he argued that he should have been protected by Article 8 because his emails were private. The Employment Tribunal rejected this, stating that, as the emails had an impact on the workplace, he was not entitled to the protection of Article 8. This view was supported by the EAT which also noted that the emails had been sent to the work addresses of the recipients. Mr Garamukanwa could have no reasonable expectation of privacy in these circumstances.
As a footnote, query whether the police should have passed evidence to the employer and therefore whether the employer should have taken it into account.
The EAT had to consider whether the dismissal of a teacher, Ms Pendleton, amounted to indirect religious discrimination. Her husband, the headteacher of another local school, was convicted of downloading indecent images of children and voyeurism. She had stood by him and was dismissed as a result.
She succeeded in her unfair dismissal claim, but she also claimed that her stance was necessary because she was a practising Anglican Christian and had reached her decision in the light of her marriage vows, which according to her faith were made in the presence of God.
The EAT held that her unfavourable treatment was as a result of her religion. It also held that the employer’s stance could not be justified as a proportionate means of achieving a legitimate aim, partly because the School had adduced no evidence to support its argument. (Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School UKEAT/0238/15.)
In Wasteney v East London NHS Foundation Trust (EAT 0157/15), the EAT rejected a religious discrimination claim by a born-again Christian who was accused of imposing her religious views on a Muslim junior employee. The junior employee complained that she felt that Ms Wasteney was ‘grooming’ her by praying with her and inviting her to church services.
The Trust dealt with this as serious misconduct, regarding her as blurring professional boundaries and subjecting a junior colleague to improper pressure and unwanted conduct. Ms Wasteney was given a final written warning, which was downgraded on appeal to a first written warning with a recommendation of training.
As a result she brought claims of direct discrimination and harassment on the ground of religion or belief. The Employment Tribunal rejected her argument that the disciplinary sanction was ‘oppressive’ such as to amount to harassment. She appealed to the EAT which supported the Tribunal’s view. The reason for the disciplinary action was that the junior colleague had made serious complaints. This was a permissible basis for rejecting the claim.
One of the potential ways for a claimant to make a disability discrimination claim is by alleging that he or she has been treated unfavourably because of something arising in consequence of a disability.
Mr Risby was a paraplegic who relied on a wheelchair. His employer had decided to move a course he was due to attend to a venue which was inaccessible to him. As a result, he lost his temper and subjected a junior mixed race colleague to what was clearly an offensive and racist tirade. He was dismissed as a result of this outburst and claimed unfair dismissal and disability discrimination.
Mr Risby’s tendency to lose his temper was a personality trait unrelated to his disability, but the EAT decided that the situation only arose as a result of his disability. He was therefore able to get over the initial hurdle of demonstrating that the moving of the course was unfavourable treatment arising in consequence of his disability.
The case has therefore been remitted back to the Employment Tribunal so that it can decide whether Mr Risby can demonstrate that his dismissal could not be justified as a proportionate means of achieving a legitimate aim. Given the terms of his tirade (not spelled out here) I don’t hold out much hope for him. Nonetheless, the case establishes that the hurdle to jump to establish that an act arises in consequence of disability is a low one. (Risby v London Borough of Waltham Forest UKEAT/0318/15.)
NThe Court of Appeal has confirmed that the same test of territorial jurisdiction applies to employees who wish to make discrimination claims under the Equality Act 2010 as to those employees wishing to bring claims under the Employment Rights Act 1996 (such as unfair dismissal).
The test, deriving from the well-known Serco case, is broadly being consolidated into the question whether there is a sufficiently strong connection with the United Kingdom to warrant UK law as applying to the claimant’s case.
Here, two Afghan nationals working as interpreters for the British Armed Forces in Afghanistan tried to bring discrimination claims under the Equality Act. The Court of Appeal held that they could not. Their only connection with the UK was that they were employed by the UK government, but all other aspects of their employment were linked to Afghanistan. The link with the UK was too weak to overcome the general principle that jurisdiction is generally determined by place of employment. (R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs and another  EWCA Civ 438.)
In Arthur J. Gallagher (UK) Ltd and others v Skriptchenko and others (2016 EWHC 603 (QB)) the High Court ordered that confidential information on computers belonging to the employer’s former employees should be destroyed by an independent third party, because those ex-employees could not be trusted to seek out and delete the relevant material themselves.
The court was at first reluctant to do this because it could not find any previous authority for ordering the destruction of such material, but part of the order was that copies of the information would be preserved by that independent party in case it was subsequently found to have been wrongly removed.
The Department for Business, Innovation and Skills has ‘called for evidence’ on whether post-termination restrictions in employment contracts act as a barrier to employment, innovation and entrepreneurship.
These clauses are often included in employment contracts for deterrent effect, even if actual enforceability is uncertain. The concern is whether they hamper the efforts of start-ups and small businesses to hire the most talented people. The Government is seeking views on whether such restrictions have a stifling effect on innovation.
The results of the survey will be fed into the Innovation Plan, which is due to be published later this year.
I do not always add an ‘And finally’ feature, but those of you who missed the story about the French employee claiming £280,000 for being a victim of ‘bore out’ – the antithesis of ‘burn-out’ – need to be brought up to speed.
His argument is that his employer has systematically removed all the exciting bits of his job and just left him with ‘mind-numbingly dull tasks’, all with the aim of avoiding having to make him redundant and fork out the legendary levels of French redundancy pay.
In UK we would be looking at this through a constructive dismissal lens, perhaps contemplating whether there is such a concept as ‘constructive redundancy’. A ‘bore out’ claim would be a lot easier. Maybe if we stay in the EU…..