Employment Law Alert UK – April 2022

Litigation Process

• Applications for the anonymisation and redaction of documents to face greater scrutiny. Mr Frewer claimed that he had been dismissed for making disclosures showing that Google had engaged in anti-competitive behaviour by favouring two major clients in the travel industry. At a Preliminary Hearing, the Tribunal granted an anonymisation order in relation to all of Google’s clients’ names and agreed that it could redact any information it felt was commercially sensitive from the disclosure documents. The EAT criticised the approach taken by the Tribunal concluding that the Tribunal failed to identify the proper legal basis for the orders made. The EAT said it was an error of law to make the order in relation to Google’s clients without considering the competing rights of Article 6 (right to a fair and public hearing) and Article 10 (right to freedom of expression) on the one hand and any issues of commercial confidentiality on the other. Similarly, the anonymisation order in relation to commercially sensitive information had been granted without carrying out the necessary structured analysis and to identify the appropriate rules or principles that applied. Both matters have been remitted to the Tribunal. Claimants may cite this case to challenge proposed redactions; a helpful reminder that any redactions should be proportionate and capable of proper justification. (Frewer v Google UK Ltd & Ors)

• EAT rules that Tribunal erred in denying the provision of documents requested by a journalist. The EAT has ruled that it was in the interests of open justice for Guardian News and Media Ltd to have more and ongoing access to copies of skeleton arguments, witness statements and documents referred to in a Tribunal judgement, with Judge Tayler stating that "The press have an important role in reporting the judgments of courts and tribunals. It is in the public interest that they have the necessary information to be able to do so fairly and accurately.” Employers are likely to be concerned about the impact of copies of materials from Tribunal decisions becoming (and remaining) available to the press, including some time after the hearing. This should be borne in mind when going through disclosure, redaction, bundle preparation and in preparing skeleton arguments and witness statements. (Guardian News and Media Ltd v Dimitri Rozanov & ors)

• Specific disclosure requests require specific justification. Miss Dodd brought a claim alleging that she was subject to a detriment and constructively unfairly dismissed for making protected disclosures about fraudulent furlough payments and mis-selling. She made an extensive specific disclosure request to evidence the wrongdoing following general disclosure. The EAT has upheld the decision of the Tribunal and refused the vast majority of the specific disclosure requests made by the Claimant. The EAT held that although evidence of the underlying wrongdoing could be relevant, the Tribunal was not wrong to focus on whether the Claimant believed that her disclosures were in the public interest, rather than the underlying wrongdoing. There was extensive criticism in both the Tribunal and EAT judgments of the vastness of the Claimant’s request, especially given that much of it post-dated her alleged protected disclosures. (Miss A Dodd v UK Direct Business Solutions Limited & Mr S Moselmi)

• Employment Tribunals Presidential “road map for 2022-23” updated to apply from 1 April 2022, with reduced reliance on video hearings. The Presidents of the Employment Tribunals in England and Wales and in Scotland have published a new road map which indicates a preference for reducing reliance on video hearings– the majority of hearings are still taking place on a fully remote basis. The document also outlines how the HMCTS reform programme will affect Employment Tribunals.

• New Vento bands from 6 April 2022. New ET Presidential Guidance on Employment Tribunal awards for injury to feelings outlines the following updates to Vento bands:

  • A lower band of £990 to £9,900 for less serious cases.
  • A middle band of £9,900 to £29,600 for cases which do not merit an award in the upper band.
  • An upper band of £29,600 to £49,300 for the most serious cases.
  • Amounts in excess of £49,300 can be awarded in the most exceptional cases.

Employment contract/status

• Employee not “dismissed” where employer made PILON payment after employee’s resignation. The EAT has confirmed that (for now) it remains that an employee will not be deemed to have been “dismissed” where a PILON payment is made after an employee resigns. Mr Fentem resigned from his employment on 16 April 2019, giving nine months’ notice. His last day of employment was due to be 16 January 2020. On 19 December 2019 he was paid in lieu of the remainder of his notice period bringing his employment to an end on that date. Marshall (Cambridge) v Hamblin is authority for the proposition that invoking a PILON after an employee’s resignation does not amount to a dismissal under section 95(1)(a) ERA 1996. Despite its misgivings with the reasoning underpinning the decision in Marshall the EAT could not conclude that the decision in Marshall was “manifestly wrong”. A decision on permission to appeal is awaited from the EAT. (Fentem v Outform EMEA Ltd)

• No requirement for "irreducible minimum of obligation" for worker status. The Court of Appeal has upheld the decision of the EAT in May 2021 that "mutuality of obligation" is not a prerequisite for worker status to be established under the Working Time Regulations 1998. In reaching its conclusion the Court of Appeal applied Uber BV and others v Aslam and others [2021] UKSC 5 (read our Insight) noting that the fact that an individual is entirely free to work or not, and does not owe a contractual obligation when not working does not preclude them from being a worker. (Nursing and Midwifery Council v Somerville)

Privacy

• Supreme Court holds that publication of details about a criminal investigation before charge infringed privacy. This case explores the tension between privacy interests of an individual under investigation but not charged with a crime, with the rights of the press to publish information of public interest. Bloomberg had published reports about an executive under criminal investigation in the UK. The executive sued Bloomberg successfully for the mis-use of private information. Bloomberg’s appeal was dismissed at the Court of Appeal and the Supreme Court. The Supreme Court held that Bloomberg had infringed the right to privacy in publishing a news article containing confidential information regarding the fact they were under criminal investigation. A person under criminal investigation has (prior to being charged) a reasonable expectation of privacy in respect of information relating to that investigation. It was common ground between the parties that there could be no reasonable expectation of privacy once someone is charged with a criminal offence due to the open justice principle. But there are broad public policy reasons to protect individuals from irreparable reputational damage which prevent identifying individuals prior to charge. NB: this was “the legitimate starting point”, but not a legal rule, let alone an irrebuttable presumption. This was a case where there was a reasonable expectation of privacy; this stemmed from significant protections afforded under Article 8 of the European Convention on Human Rights. From a practical perspective, employers should take steps to protect the identity of employees under criminal investigation prior to charge, even within their organisation. (Bloomberg LP v ZXC)

• No reasonable expectation of privacy or confidentiality over company email account. The Court of Appeal has upheld the decision of the High Court that personal emails sent from a company email account were not private or confidential. The personal emails sent from a business account lacked the necessary quality of confidence and no duty of confidence was owed by the employer. The case concerns the ownership of the business "enquiries" email account which the claimant claimed that she had used as her own at work since 2015. The case affirms that the burden of proof in establishing a reasonable expectation of privacy lies with the party asserting it, rather than a presumption of privacy which the defendants in this case would be required to rebut. In reaching the view that the email account was not private and confidential the Court of Appeal took account of the fact that: (i) the email account was used by more than one individual; (ii) the company owned the account and held the password; (iii) personal emails not stored separately or marked private in the account; and (iv) a separate account was set up in the employee’s name (the inference being that this other account was intended for personal use). The judgment contains useful practical guidance on measures employers can take to ensure they have legitimate access to all emails sent via a business account. It cites the Bloomberg decision (above), in particular that the general tendency to regard certain information eg relating to health and finances as giving rise to a reasonable expectation of privacy was not a legal presumption or rule, it was just a starting point for analysis – a reasonable expectation of privacy must still be demonstrated. However, there may be a legitimate expectation of privacy where individual employees have their own individual company email address and mark a particular communication as “private” – the company email terms of use applicable will be relevant. (Brake & anor v Guy & ors)

• TUC calls for greater regulation of workplace technological surveillance in light of Post Office scandal. The TUC has called for stronger regulation after new research showed increasingly high levels of workplace surveillance and monitoring.

Employment Relations processes

• A new Statutory Code to protect employees in “fire and rehire” situations. On 30 March 2022, further to the recent mass redundancies at P&O Ferries, the Transport Secretary Grant Shapps MP made a statement in the House of Commons outlining nine measures which the government intend to take to protect seafarers’ employment rights. Of greatest significant to other sectors is the promise of a new statutory code. It was said that this Code will allow a court or employment tribunal to take the manner of dismissal into account (in particular in circumstances where there has not been meaningful consultation) and potentially impose a 25% uplift on compensation. On 1 April 2022, the Insolvency Service announced that formal criminal and civil investigations have begun into the circumstances surrounding the recent mass redundancies at P&O Ferries.

Detriment

• EAT holds that detriment should be interpreted widely and is not a wholly objective test. The EAT has ruled that a tribunal erred in its approach to determining whether a job applicant complaining of victimisation had suffered a detriment under the Equality Act 2010. It was deemed enough that a view could be taken by a reasonable worker that certain conduct was detrimental, and this same view did not need to be shared by a reasonable tribunal. In addition, the EAT held that establishing any physical or economic consequence was not necessary. In the case of Mr Warburton, who believed that his ongoing disability discrimination claim against Hertfordshire Police impacted on his application to Northamptonshire Police, the matter was remitted for a rehearing by a differently constituted tribunal. (Warburton v Chief Constable of Northamptonshire Police)

Covid

• EHRC suggests employers should treat long Covid as a disability. To avoid employers falling foul of equality law, and in the absence of clear legislative protections for people with long Covid, the head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat such employees as if they have a disability for the purposes of the Equality Act 2010. It is not yet certain whether all cases of long Covid will meet the legal definition of disability (given the varying and fluctuating nature of symptoms), nor whether the government will classify the condition as a disability.

Diversity & Inclusion

• EHRC publishes new guidance for service providers providing separate or single-sex services which includes practical examples in relation to access to bathrooms and domestic abuse refuges, to illustrate how to comply with the Equality Act 2010. Under the Equality Act, providers cannot discriminate against someone based on sex or gender reassignment, but there are exceptions where access for certain groups can be modified or limited if there is what is described as "a legitimate aim"; this could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. You must then be able to show that your action is a proportionate way of achieving that aim. There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act only where such action is a proportionate means of achieving a legitimate aim. Interestingly, the guidance states that this applies whether the person has a Gender Recognition Certificate or not.

• Women and Equalities Committee survey on menopause. Nearly a third of women have missed work because of menopause symptoms, according to survey results published by the Women and Equalities Committee.

• Parker Review Committee on ethnic diversity. The Parker Review Committee has published its 2022 update report setting out survey results of FTSE 350 companies on the ethnic diversity of their boards. As at 31 December 2021, 89 FTSE 100 companies met the Parker Review target of at least one director from a minority ethnic group on their board.

• Government publishes response to the Commission on Race and Ethnic Disparities report. The response contains various action points relevant for employers including D&I resources for employers and guidance on positive action. Mandatory ethnicity pay reporting will not be introduced but BEIS is expected to publish guidance for employers on voluntary ethnicity pay reporting in Summer 2022.

• Neurodiversity in Business forum launched to support neurodiverse employees in the workplace. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.

• Proposal for new EU Directive on Corporate Sustainability Due Diligence. On 23 February 2022, the European Commission adopted a proposal for a Corporate Sustainability Due Diligence Directive. It introduces a sustainability due diligence duty on large EU companies and non-EU companies with significant EU activity to address adverse human rights and environmental impacts in their own operations, their subsidiaries and their value chains. The European Commission sets out its commitment to promoting decent work and human-centred future of work. The proposal will be presented to the European Parliament and the Council for approval. Once adopted, member states will be required to implement the Directive within two years.