Key employment law cases: December 2019

Whistleblowing: motivation of person other than decision-maker could be attributed to employer, Royal Mail Group Ltd v Jhuti (SC)

Royal Mail Group Ltd v Jhuti – Supreme Court – 27 November 2019

The Supreme Court has made clear that if an employee (in the hierarchy of responsibility above the employee, such as their line manager) deliberately hides the real reason for dismissal behind an invented reason which the decision-maker adopts (such as pretending it is performance-related rather than for whistleblowing), the reason for the dismissal is the hidden reason rather than the invented reason.

The facts of this decision are quite rare. The judgment acknowledges that “instances of decisions taken in good faith, not just for a wrong reason but for a reason which the employee’s line manager has dishonestly constructed, will not be common”.

However, there has also been another “manipulation case”, Cadent Gas v Singh, which is consistent. In that case, the motivation of someone other than the decision-maker (a manager who resented the claimant’s trade union activities) was attributed to the employer.

Read our full insight on this decision.

TUPE: protection applies to workers as well as employees

Dewhurst v Revisecatch Ltd t/a Ecourier – Employment Tribunal - 26 November 2019

An employment tribunal has ruled that TUPE applies to ‘workers’ as well as ‘employees’. The ruling turns on a number of legal definitions. The Acquired Rights Directive (from which TUPE is derived) defines employee as “any person who […] is protected as an employee under national law”. In UK domestic law, such as the Equality Act 2010, the term ‘employee’ is used to describe both employees (in the technical sense) as well as workers. In the same way, the Tribunal ruled that the definition of ‘employee’ under TUPE must be interpreted broadly and the words “or otherwise” could be construed to cover workers. Otherwise it would be absurd.

As a Tribunal decision, it is not binding. Many employers will want confirmation from an appeal court before making radical changes to their practices. But this is not the first time that the Tribunal has made such a ruling: a similar judgment was handed down in 2013 in the case of McCririck v Channel 4.

Team moves: High Court dismisses claims for alleged poaching

Alesco & Ors v Ardonagh & Ors - High Court

The High Court has dismissed claims brought by insurance brokers, the Gallagher group, against its rival, the Ardonagh group, for alleged unlawful poaching of senior staff and business contracts. The Judge ordered Gallagher to pay £3.1 million towards the legal fees of defendant Ardonagh. The case highlights the risks inherent in bringing this type of litigation. John Tiner, chairman of Ardonagh, stated publicly that: “this case has … tarnished the [international insurance] industry’s reputation through the revelations of the abusive and racist language used by the claimants”. Due to the hard-fought nature of the case, likened to rivalry between football teams, the Court took a cautious approach to the evidence. The judgment highlights the perils of “carefully crafted” witness statements which are too closely aligned and inconsistent oral evidence which did not match the statements. There is also interesting commentary on the credibility of witnesses, contrasting one which was “quick to anger” and another who gave evidence “in a measured and analytical way”. Ultimately the Court must look for the truth “back-stage” and place emphasis on the contemporaneous evidence.

Equal Treatment Directive: homophobic comments made on the radio by a senior lawyer could breach discrimination law even where no active recruitment process nor identifiable victim, according to the Advocate General

NH v Associazione Avvocatura per i diritti LGBTI-Rete Lenford - Advocate General - 31 October 2019

The Advocate General has given an opinion that a comment made by a senior lawyer on Italian radio that he would never hire a gay person to work at his law firm amounted to unlawful discrimination under the Equal Treatment Framework Directive.

The claim was brought by an association for LGBT lawyers, rather than any specific victim. It was originally brought before the Italian courts, where the lawyer was ordered to pay damages of €10,000. The Advocate General considered that the comment might discourage people from the protected group from applying for employment and was therefore contrary to the Directive. It was open to national legislation to permit an association with a legitimate interest to initiate proceedings in the absence of a specific victim. There might be wider implications for the UK if the opinion is followed by the ECJ.

IR35: BBC exerted sufficient control over “freelance” presenter to establish employment relationship

Christa Ackroyd Media Ltd v HMRC – Upper Tribunal - 25 October 2019

Christa Ackroyd, who used to present TV programme “Look North in Yorkshire”, was held to be an employee of the BBC rather than a self-employed contractor. As a result, she was liable for £420,000 in income tax and NICs contributions. Ackroyd is among a number of people who the BBC required to work for them via a personal service company. The Upper Tribunal took the view that the BBC had sufficient control over her work to establish an employment relationship. It determined what stories were covered, when she worked, who she interviewed, and edited her materials. As a result, IR35 was held to apply.

The decision is topical as many employers prepare for the IR35 tax reforms due to be rolled out in April 2020, despite promises from politicians that they would review the proposals post-General Election. Under the new rules, employers will have to decide whether contractors should have tax and NICs deducted through PAYE if they could be deemed an employee.

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.