Key employment law cases: November 2020

Vicarious liability: employer not liable for employee's practical joke

Chell v Tarmac Cement and Lime Ltd - High Court (05 October 2020)

The High Court has upheld a county court decision that an employer was not vicariously liable for the actions of an employee whose practical joke (unintentionally) injured a contractor at work.

The Claimant, a site fitter, brought a personal injury claim against Tarmac Cement after one of its employees had, in an apparent practical joke, hit two "pellet targets" with a hammer close to his ear, causing a loud explosion and causing him to suffer a perforated eardrum, noise-induced hearing loss and tinnitus. The employee was subsequently dismissed.

The High Court followed the Supreme Court's decision in Morrison Supermarkets plc v Various Claimants: whilst the incident happened in the workplace, the employee's actions were unconnected with any instruction given to him in connection with his work and did not advance the purpose of his employer in any way. The High Court held that it was expecting too much of an employer to devise and implement a policy or site rules, which descend to the level of horseplay or the playing of practical jokes. The employer was not therefore vicariously liable for his actions.

Discrimination: gender fluid employee awarded £180,000 in compensation

Ms R Taylor v Jaguar Land Rover Ltd - Employment Tribunal (02 October 2020)

In this landmark case, a gender-fluid employee has received £180,000 in compensation following its recent judgment that gender fluid and non-binary people were protected from discrimination on grounds of gender reassignment under the Equality Act 2010.

Ms Taylor, who prefers to use the female pronoun, worked as an engineer for JLR for nearly 20 years. She previously presented as male before identifying as gender fluid in 2017 and dressing in women's clothing. She claimed she was subsequently subjected to insults from colleagues and abusive jokes, as well as issues with using the toilet facilities and lack of managerial support. After resigning in 2018, Ms Taylor brought claims for harassment, direct discrimination and victimisation on the grounds of gender reassignment and sexual orientation.

The Tribunal ruled in her favour on the basis that she was protected under section 7 of the Equality Act 2020 (a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex). The reasons for the judgment were given orally - and written reasons will be provided in due course. JLR has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.

Data protection: H&M fined €35.3 million for storing "extensive" employee data

On 2 October 2020, H&M was issued a fine of €35.3 million for storing "extensive details" about hundreds of its employees in Nuremburg in Germany, in breach of the GDPR.

The Hamburg Commissioner for Data Protection and the Freedom of Information (the "Regulator") found that since at least 2014, H&M had been collecting and storing extensive personal data about its employee's personal lives. This included information relating to employee's vacation experiences, symptoms of illness, diagnoses, family issues and religious beliefs. This data was collected via "Welcome Back Talks" after an employee was absent (even for short absences), and informal talks with supervisors. The data was then recorded (in a high level of detail) onto H&M's computer system where it was accessible by up to 50 managers. The data was kept up to date over a long period of time showing the development of the relevant issues for each employee. The data was used for evaluation of employees and to obtain a detailed profile of employees for measures and decisions regarding their employment.

The fine is largest financial penalty imposed in Germany under the GDPR (and the second largest ever imposed under the GDPR). H&M has also agreed to pay out compensation to employees who worked at the Nuremburg site for at least a month since May 2018.

Whistleblowing detriment: imposing new contract was one-off not a continuing act

Ikejiaku v British Institute of Technology - Employment Appeal Tribunal (01 October 2020)

The EAT has ruled that imposing a new employment contract is a one-off event with continuing consequences and not a continuing act for the purposes of bringing a whistleblowing detriment claim. It also ruled that the Tribunal should have considered an uplift in compensation due to a failure to follow the ACAS Code as the making of a protected disclosure could be a grievance.

The Claimant was a senior lecturer. In 2015, he reported that he had contacted HMRC regarding his employer's failure to pay tax and NICs on his behalf. He was subsequently told that he was self-employed and provided with a new contract to reflect this. He then continued teaching for two years before making a further complaint that he had been told to pass a student who had been cheating. He was dismissed the following day, allegedly due to a reduced requirement for lecturers. He claimed automatic unfair dismissal (section 103A ERA), which was upheld, and whistleblowing detriment (under section 47B ERA), which was ruled out of time.

On appeal, the EAT agreed that his detriment claim was out of time. Whistleblowing detriment claims must generally be presented within three months of the act complained of, but this can be extended where the detriment is continuing. Taking into account previous case law, the EAT said that a typical example of a continuing act would be a policy or rule where continuing decisions have to be made. This was not the case here - it was a one-off act, albeit with continuing consequences, and it had been reasonably practicable for him to present his claim within the three-month time limit.

However, the EAT allowed his appeal in relation to the Acas uplift on the basis that the protected disclosure made on the day before his dismissal could amount to a grievance, to which the Code applies. The case has been remitted to the Tribunal for reconsideration.

Age discrimination: use of internal Talent Pool was indirectly discriminatory

Ryan v South West Ambulance Services - Employment Appeal Tribunal (06 October 2020)

The EAT has held that an employee was subject to indirect age discrimination when excluded from applying for a promotion because she was not in the employer's internal "Talent Pool".

The Claimant works for the Trust as a Learning and Development Officer and she was in her mid-sixties at the time of the matters complained of. The Trust had developed a "Talent Pool" to help quickly fill management positions without needing to advertise and interview external candidates. Employees were put into the Pool if either (i) they were exceeding expectations in the appraisal process, or (ii) through a self-nomination process. The Claimant was not put into the Pool via the appraisal process, nor did she self-nominate. Around September 2017, she applied for two promotions but was not considered for either because they had already been filled by individuals from the Pool. The Claimant claimed indirect age discrimination, alleging that the use of the Pool put those aged 55-70 at a disadvantage and that, as a 67 year old, she suffered that disadvantage.

Whilst the Tribunal found that the Pool did cause a group disadvantage to employees aged 55 and above, it was not the cause of her individual disadvantage - which was her own failure to apply to the Pool. It also held that the PCP could be justified as appropriate succession planning for an emergency response organisation. However, the EAT said that the Tribunal was wrong in its analysis: she was personally disadvantaged because she was not considered for roles that she would otherwise have been. It also said that the Tribunal failed to consider evidence regarding what would have happened if she had applied to the Pool, and there was nothing to prove it was not because of her age. It also disagreed that the PCP was objectively justified because it failed to properly consider the effect, reason and need for it, for example lesser measures.

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