Key employment law cases: February 2020

Legal Advice Privilege: Court of Appeal confirms legal advice must be dominant purpose

Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) – Court of Appeal – 28 January 2020

The Court of Appeal has ruled unanimously that a person claiming legal advice privilege (LAP) must show that the dominant purpose of the communication was to obtain or to give legal advice, rather than it simply being a purpose. This is already the case in several other common law jurisdictions. The decision provides welcome clarity on the principles of LAP and is particularly important for those carrying out disclosure review exercises in litigation and data subject access requests.

The decision was borne out of a dispute between Jet2.com and the Civil Aviation Authority (CAA), after correspondence was leaked to the Daily Mail. Jet2.com sought disclosure of drafts of a letter which had been leaked and other associated documents. However, the CAA claimed that the documents were privileged because their in-house lawyers advised on the drafts. The CoA agreed with the High Court that the documents were not privileged.

The judgment helpfully reiterates the key principles of legal advice privilege. As part of the decision, the CoA considered the situation where you have emails sent to multiple addressees, including some (but not all) lawyers. The CoA reiterated that if the dominant purpose is to obtain or to give legal advice, the email will be privileged. If the purpose of the email is to obtain commercial advice or views, it will not be. The CoA also confirmed that just because an email is privileged, an attachment to that email may not be and the two must be considered separately.

Unfair dismissal: Probation Officer fairly dismissed for failing to disclose personal dealings with social services

Q v Secretary of State for Justice – Employment Appeal Tribunal - 10 January 2020

The EAT has agreed with the tribunal that it was fair to dismiss Probation Officer, Q, for failing to disclose to her employer that she was considered by Social Services to pose a risk to her teenage daughter and that her daughter was placed on the child protection register. Q was dismissed for deliberately failing to report the matter in circumstances where she was aware that she was required to do so, following a similar previous episode and warning.

The EAT found that the tribunal had properly considered the impact on her right to private life (under Article 8 of the European Convention on Human Rights). However, it took the view that due to the nature of the Probation Service’s work and its relationship with local authorities, the decision to dismiss was not a disproportionate infringement of her right to private life and her dismissal was fair. The EAT agreed that the incidents in her private life were capable of bringing the Probation Service into disrepute and could undermine public confidence in it.

Equal pay: Samira Ahmed wins equal pay claim against BBC

Samira Ahmed v BBC –Employment Tribunal – 10 January 2020

In this high profile case, the tribunal ruled that the work done by Samira Ahmed on Newswatch and Jeremy Vine on Points of View was equal work, and that the BBC failed to show that the difference in pay was due to any other factor other than gender. Samira Ahmed brought the equal pay claim after discovering that Mr Vine was paid £3,000 per episode compared to her £440 per episode.

The Tribunal concluded that Ahmed’s work on Newswatch was the same or broadly similar to the Jeremy Vine’s on Points of View. They both presented a fifteen-minute pre-recorded programme, in magazine format and it was presenter-led. In both cases, the producer wrote the script. Whilst Points of View had a lighter tone, the differences were minor and did not impact the skills or experience required to present the programmes. Unsurprisingly, the Tribunal as not impressed that “a glint in the eye” or the need to be “cheeky” was pleaded as a skill or experience.

The case is quite specific on the facts, but it highlights the importance of clear and transparent processes when setting pay. In particular:

• The judgment emphasises that material factors can’t be ‘backdated’ – the evidence needs to show that anything pleaded as a material factor was in the mind of the decision maker when pay was being set/negotiated.
• The judgment is critical of BBC for not calling those who were responsible for deciding and negotiating pay as witnesses.

Discrimination: Tribunal publishes written reasons in ethical veganism case

Casamitjana v League Against Cruel Sports – Employment Tribunal – 03 January 2020

We reported last month that the tribunal ruled that ethical veganism did meet the legal test to be protected as a philosophical belief under the Equality Act 2010. Read our case summary. The tribunal has now published the written reasons for its decision.

The facts of the case show that the Claimant’s belief was genuinely held, was more than an opinion or viewpoint and had a weighty and substantial effect on his everyday life. In addition to a strict vegan diet, he did not wear clothes containing animal products, only worked in the field of animal protection, avoided relationships and social gatherings with non-vegans, avoided products involving animal testing, and avoided public transport where possible to avoid crashes with wildlife. His belief was considered to attain a certain level of seriousness and did not conflict with the rights of others.

> Read our full Insight.

Interim injunctions: High Court grants injunction lifting employer's suspension

Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust – High Court – 19 December 2019

In this recent decision, the High Court granted an interim injunction, permitting a solicitor to return to work to perform most of her duties. Harrison was a solicitor employed by the NHS Trust. She was suspended due to concerns about her handling of a clinical negligence claim, without being given details of the allegations. She was subsequently diagnosed with stress. She was then asked to return on restricted duties, and when she refused, she was suspended for refusing to obey an instruction. Harrison sought an injunction arguing that she was reinstated with permission to undertake all her normal duties. She argued that the Trust had breached their implied duty of trust and confidence, and that her health suffered as a result.

Her application for an injunction was granted. Following the principles set out in American Cyanamid, it was held to be strongly arguable that the way she was treated amounted to a breach of the implied duty of trust and confidence. There was arguably no reasonable and proper cause for the suspensions: there was no evidence that resuming most of her normal duties would harm the NHS Trust (she voluntarily agreed not to undertake clinical negligence claims). On the other hand, there was evidence that suspending her from work had damaged her health. The balance of convenience therefore favoured granting the injunction.

The case is a useful reminder that employers, particularly in industries (such as financial services) where suspension or particular disciplinary action has a significant impact on the individual’s reputation, should be mindful of the legal issues in relation to suspension and take care that suspension decisions are made properly.

> Read our full Insight

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.