Key employment law cases: November 2019

Privilege: Court of Appeal rules that email was privileged

Curless v Shell International Ltd – Court of Appeal - 22 October 2019

In a decision many will welcome, the CoA ruled that an email sent by a lawyer to Shell about the dismissal of an employee, Curless, was covered by legal advice privilege. The email contained advice that a genuine redundancy exercise could be used as an opportunity to dismiss Curless who had made complaints of disability discrimination. The CoA disagreed with the EAT that privilege was lost because there was a strong prima facie case of iniquity. Instead, it took the view that the email was “day in, day out” advice for employment lawyers and that the advice was not underhand or iniquitous. Nonetheless, employers are reminded to take care with privileged communications, marking them appropriately.

See our Insight.

Intellectual property: £2 million compensation for employee-inventor

Shanks v Unilever plc & ors - Supreme Court – 23 October 2019

The Supreme Court has awarded an employee-inventor £2 million for an invention which was of “outstanding benefit” to his employer. The Claimant in this case, Professor Shanks, invented a blood glucose measuring device for use in diabetes testing kits whilst working for a subsidiary of Unilever. Unilever patented the invention, which earnt them over £23 million in royalties. When he claimed against Unilever, the Supreme Court found in his favour and awarded him £2 million, a 5% share of the outstanding benefit. The case provides guidance on how to assess whether an invention is of outstanding benefit. Employers should ensure that they have appropriate provisions in employment contracts to make clear how IP rights in their work is owned and should also consider fair compensation for inventors to avoid this type of litigation.

See our Insight.

Third-party harassment: employers not liable

Bessong v Pennine Care NHS Foundation Trust – Employment Appeal Tribunal - 18 October 2019

The EAT has confirmed that an employer is not liable for failing to prevent third-party harassment, save where its reaction (or lack of it) was because of a protected characteristic. In this case, an employee of a hospital was physically assaulted and racially abused by a patient and claimed that the hospital had failed to take appropriate steps to prevent it.

However, employees have limited protection in this scenario: as the law currently stands, employers are not liable for failing to prevent harassment by third parties, such as customers, visitors or patients unless the reason for their failure to act is the person’s protected characteristic. This did not used to be the case – but the third-party harassment provisions under the Equality Act 2010 were repealed in 2013.

Watch out for updates on this: the Government has been consulting on introducing new third-party harassment provisions and the outcome is awaited.

Investigations: removing opinions from investigation report not unfair

Dronsfield v The University of Reading – Employment Appeal Tribunal – 02 October 2019

The EAT has agreed that it was not unfair to remove evaluative opinions from an investigation report on advice from their in-house lawyer. Dronsfield was a professor at the University and dismissed for gross misconduct after admitting to having a sexual relationship with a student. An investigator and member of HR investigated the allegations and produced a joint report. Early drafts of the report were reviewed by their lawyer, who recommended that it should be limited to factual findings and whether there was a prima facie case to answer.

As a result, certain opinions (including that there was no evidence that his conduct had been immoral or scandalous) were removed. The Tribunal considered this to be fair and reasonable, and the EAT agreed. The case is a good reminder of what should be included in an investigation report: factual findings and whether there is a prima facie case to answer. Evaluative opinions should be left to the disciplinary panel

Covert surveillance: no breach of privacy

López Ribalda & ors v Spain- European Court of Human Rights – 17 October 2019

The European Court of Human Rights (ECHR) has ruled that installing CCTV to monitor whether employees were stealing was not a breach of privacy. This Spanish case involved a supermarket chain which used hidden cameras to obtain footage of cashiers stealing from the tills and used that footage in the Tribunal as evidence. The five cashiers who were caught argued that the surveillance was a breach of their right to privacy and violated their right to a fair hearing. The ECHR considered that the surveillance was proportionate, taking numerous factors into account, including that it took place in a public area, the duration was limited, and that there were legitimate reasons due to ongoing losses. Nonetheless, employers should be mindful that covert surveillance must be carefully considered and proportionate, and usually only where there is no less intrusive way of tackling the issue.

Discrimination: doctor’s objection to transgenderism not capable of protection

Dr David Mackereth v The Department for Work and Pensions & Anor – Employment Tribunal – 02 October 2019

A Christian doctor who was dismissed for refusing to address transgender patients by their preferred pronoun or title was not discriminated against. Whilst it was not disputed that his Christianity was protected as a religious belief under the Equality Act 2010, his particular beliefs that God only created males and females, that a person cannot choose their gender and his objection to transgenderism were incompatible with human dignity and in conflict with the fundamental rights of others, and so could not be protected. In practice, whilst employers must protect employees’ rights to manifest their religious beliefs, this does not extend to inappropriate expressions of religious beliefs in the workplace.

For more key employment law updates from us:
• read our insights on key developments over the last month
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government
• scroll through our key dates timeline showing recent and anticipated changes to employment law, and
• attend our upcoming events or catch up on training.