Newsletter January 2018


I wanted to start the year with an early Newsletter and use it as an opportunity to wish all readers very best wishes for 2018.

There are only a small number of cases reported here, but each is quite significant in its own way.

Happy New Year!

Darryl Evans
T: +44 (0)7771 725341

Right to paid annual leave carries over indefinitely

The European Court of Justice (ECJ) has held that a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment/engagement, if he/she has been discouraged from taking that leave because it would have been unpaid. It is not necessary for the worker to have to take leave and then sue for holiday pay – the holiday is not lost if it was not taken because it would have been unpaid.

In addition, there is no limit on the amount of leave that could be carried over in this type of case. An employer that does not allow workers to take paid leave must bear the consequences.

This decision will have serious implications for businesses which have been misclassifying workers as independent contractors, as those workers could have the right to claim many years of unpaid holiday pay. For example, look no further than all of the companies operating in the "gig economy" who are facing claims for worker status from many staff, as recently reported frequently in my Newsletters.

This decision could have implications for those seeking to claim under-payments of holiday pay, such as those whose holiday pay excluded commission pay or regular overtime payments. UK case law has, for example, suggested that a break of three months during which there were no shortfall payments would act as a cut off of claims for the earlier period but query now whether that is the case. Similarly, will the two year limit on the amount of back pay which may be claimed in such cases, as enacted by the UK Government, be compatible with EU law? (King v The Sash Window Workshop Ltd and another C-214/16.)

Discrimination cases and the burden of proof – as you were

In August I reported the decision of the Employment Appeals Tribunal (EAT) in Efobi v Royal Mail Group Ltd which changed fundamentally the widely understood position on the burden of proof in discrimination claims. The Court of Appeal in Ayodele v Citylink Ltd and another (2017 EWCA Civ 1913) has now said that that decision was wrong.

The restored orthodoxy is that it is first for the claimant to establish facts which infer that there could be discrimination, after which the respondent, to defeat the claim, must show that there was another explanation for the treatment of the claimant. The EAT’s view that an overall assessment of the facts was needed, with no initial burden on the claimant, was wrong.

Employer liable for employee's data protection breaches

Supermarkets chain Morrisons has been held vicariously liable when one of its employees deliberately published on the internet, and sent to three national newspapers, personal data belonging to almost 100,000 of his fellow workers. His action, born out of a grudge against his employer, was criminal but Morrisons also faced claims by over 5,500 of those affected for breach of statutory duty under the Data Protection Act 1998, the misuse of private information and breach of confidence.

The rogue employee, an IT manager, had been given access to the data as part of his role. However, the data was disseminated from his home, on his personal computer, outside working hours and with the deliberate intent of harming Morrisons.

As in all vicarious liability, the key question was whether the employee's actions had been in the course of his employment, meaning closely connected to his authorised duties. The High Court held that they were. The manager had been entrusted with the data, and received it and copied it as part of his role. The court said its subsequent publication was part of a seamless and continuing sequence of events.

Perhaps unsurprisingly, including because of the potential sums at stake, Morrisons plans to appeal. (Various claimants v Wm Morrisons Supermarket PLC 2017 EWHC3113 (QB).)

Pure self-interest rules out qualifying disclosure

In Parsons v Airplus International Ltd (UKEAT 0111/17) the EAT has supported an employment tribunal’s finding that an employee who raised compliance issues purely out of concern for her own potential liability did not make a qualifying disclosure that she reasonably believed to be in the public interest. She did not, therefore, qualify for whistleblowing protection.

The facts are worth summarising as in these types of cases they are critical and often very instructive.

Ms Parsons was a qualified non-practising barrister employed by Airplus as Legal and Compliance Officer. She suggested that the company had breached various different legal obligations, such as not having a consumer credit licence (when it was far from clear that the company was required to have one). In each case she made it clear that she was concerned about her own personal liability for any breaches and as a result her job title was changed to Analyst for Regulatory Affairs and Contract Management.

Nonetheless, following what the company alleged to be an insufficient improvement in her performance and conduct, it dismissed her, referring to her as a ‘cultural misfit’. She claimed automatic unfair dismissal for having made protected disclosures.

The tribunal was satisfied that what caused Airplus concern was not the information that Ms Parsons raised but her inability to give rational and cogent reasons for her belief in the company’s non-compliance, her failure to investigate the background, and her irrational fixation on, and fear of, her personal liability. This conduct was, said the tribunal, genuinely separable from the disclosure.

The EAT rejected her appeal. One issue it addressed was the public interest test. It recognised that a disclosure does not have to be made entirely in the public interest in order to be protected – a self-interested disclosure may still qualify. However, the tribunal found on the facts that Ms Parsons’ disclosure was in nothing but her own interest. Therefore, it could not have been in the public interest.

Whistleblowing claims are rarely defeated on the basis that no protected disclosure was made. In that respect, this might be an exception and most whistle-blowers may instinctively avoid any suggestion that they are doing so only for self-preservation (or at least have the wit to do so). Much more often the case turns on whether there was a causal link between the protected disclosure and the dismissal. Once again that was the case, with the tribunal drawing a distinction between her allegations and the manner in which, and her conduct around, making them.

Pre-termination negotiations

Readers may be aware that, provided the requirements of section111A of the Employment Rights Act 1996 are met, negotiations with a view to an agreed termination of employment may be excluded from evidence in any claim for unfair dismissal. Well, here is an exception to that rule.

Mr Basra responded to a without prejudice offer letter from his employer, BJSS, by email which stated "today will be the last day at BJSS". He then stopped attending work and later brought a claim for unfair dismissal.

BJSS argued that there was no dismissal - employment had ended by mutual agreement or, because of the terms of the email, resignation. Mr Basra denied resigning and said that he had been dismissed at a later date.

The tribunal excluded BJSS's offer letter from evidence on the grounds that is was protected under s111A but the EAT held that that was wrong. The statutory exclusion only applies to negotiations taking place before employment has terminated. It followed that it cannot be invoked until date of dismissal has been determined. As the offer was relevant to that determination it was admissible. (Basra v BJSS Ltd UKEAT/0090/17.)

Perceived disability – discrimination or not?

Chief Constable of Norfolk v Coffey (UKEAT/0260/16) concerned a police officer who was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment.

In 2011 she had been taken on by the Wiltshire Constabulary despite her hearing loss being marginally outside the range set down by the Home Office for police recruitment. It gave her a practical functionality test which she passed and she went on to work on front-line duties.

When she later applied to Norfolk Constabulary her hearing was again identified as ‘just outside the standards for recruitment strictly speaking’ but the assessor recommended that she undergo an ‘at work’ test. This recommendation was not carried out and her request to transfer was declined. It was not, said the Norfolk Constabulary, appropriate to step outside the required standard given the risk of increasing the pool of officers on restricted duties.

In her employment tribunal claim she did not allege that she actually had a disability. Rather, she maintained she had been treated less favourably because she was perceived to have a disability, i.e. a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities.

The tribunal considered that the only way to interpret the risk of her ending up on restricted duties was that she was perceived to have a potential or actual disability which could lead to the Constabulary having to make adjustments to her role as a front-line police officer. Since this perception was the reason for refusing her transfer, the tribunal upheld the discrimination claim.

The EAT found these conclusions to be justified and the Constabulary’s appeal was rejected.

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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