UK: Employment Case Law Review Of 2020 - December 2020

Welcome to our Employment Case Law Review of 2020

It is probably an understatement to say that 2020 did not turn out as most of us expected. In employment law we were looking out for some important Supreme Court cases which have either not yet been heard or where judgment is still awaited.

These include the case of Royal Mencap Society v Tomlinson-Blake on the question of whether carers were actually working throughout their sleep-in shifts or merely available for work, the employment status case of Uber BV and others v Aslam and others, and Kostal UK v Dunkley on the question of whether an employer's offers made directly to members of a trade union in the context of collective bargaining were unlawful. Watch this space for further information on these and other key judgments in 2021.

Despite the upheaval caused by the pandemic, employment law has continued to develop apace through important and interesting case law decisions in 2020. We collect together in this bulletin our top ten case reports from the last twelve months.

I hope you can join us for our virtual Employment Brunch Briefing on 2 February. We are delighted to be joined for this briefing by data protection expert Ibrahim Hasan. Please sign up through the link below. You can also access below our useful library of free recorded employment and charity law webinars from 2020.

Following the data protection briefing we will be holding an informal discussion about two current government consultations that could significantly change employment contracts in the future.

One consultation looks at whether employers should be able to prevent workers from working for another employer whilst they are working under a guaranteed hours contract where earnings are below a certain level (exclusivity clauses). The other looks at whether changes should be made to the restrictions an employer can place on an employee's ability to work for or set up their own competing business in the period after they have left employment (post-termination non-compete clauses).

Wrigleys will be seeking the views of employers on these issues before providing a response to these consultations. The relevant consultation documents are available in the following links:

Measures to extend the ban on exclusivity clauses in contracts of employment
Measures to reform post-termination non-compete clauses in contracts of employment

We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch.

We wish all our readers a much happier New Year!

Was a dismissal for failing to disclose the employee's own safeguarding risk to her child unfair and in breach of human rights?

Article published on 7 February 2020

Dismissal and breach of right to privacy were justified by potential risk to employer's reputation as statutory safeguarding partner.

Employers can be faced with very difficult decisions where internal disciplinary proceedings arise from conduct outside of work. All the more so where that conduct raises a safeguarding risk which could impact on the employer's work and reputation.

Employees who work with children or vulnerable adults clearly have to comply with rigorous safeguarding procedures in the workplace to protect service users. More complex can be the question of whether such an employee has a duty to disclose a safeguarding risk arising from their own private life.

Within the education and child care sector, the rules on reporting a safeguarding risk arising from people the employee lived with (the disqualification by association rules) have been relaxed since 31 August 2018. Further details of these changes are available in a previous article, available on the Wrigleys website. The question of whether a headteacher was required under her contract to report her own relationship with a convicted sex offender was considered in the interesting case of Reilly v Sandwell Metropolitan Borough Council (a case which was considered before the disqualification by association rule change but to which the rules did not apply).

Despite the change in these rules, those working with children or vulnerable people are still likely to have a safeguarding duty to disclose to their employee where there is a risk of harm to children or vulnerable people arising from their own personal life. If the failure to disclose comes to light, the employee is likely to face disciplinary allegations including the potential damage to the employer's reputation as well as the breach of the safeguarding duty itself.

In a recent case, the EAT considered whether a probation officer's dismissal for failing to report that she was considered by social services to be a risk to her own daughter was unfair and in breach of her right to respect for private and family life.

Case details: Q v Secretary of State for Justice

The claimant (Q) was employed as a Probation Service Officer, a role which included safeguarding duties although it did not include work with children. Her daughter was placed on the Child Protection Register in 2014 following allegations that Q had been violent towards her. Q did not follow social services' advice to tell her employer about this and so social services disclosed the information directly to the Probation Service. After disciplinary proceedings, Q was given a final written warning for failing to report a potential safeguarding issue and she was demoted. In 2015, a Child Protection Plan was put in place for Q's daughter. Q failed to inform her employer despite having been advised that she should keep them updated. The Probation Service summarily dismissed Q for this failure to disclose and for reputational damage consequent on the way Q had dealt with social services.

Q brought a claim for unfair dismissal which was not upheld by an employment tribunal. It found that the dismissal was fair in the circumstances as a final written warning had previously been given in relation to the same conduct and Q was aware of her obligation to disclose. The tribunal commented that the claimant's actions in not disclosing "showed a lack of professional judgment regarding safeguarding issues which could have impacted on her work". This was the case even though the claimant did not work with children as part of her role.

The tribunal also found that Q's actions were clearly capable of bringing the employer into disrepute and undermining public confidence in the Probation Service. These actions included both the nature of the incident itself, which involved a child, and Q's refusal to engage with social services. As an employee of the Probation Service, with its integral role in the criminal justice system, the claimant was to be held to a higher standard of conduct than employees might

be in other sectors. This included personal conduct outside work which was likely to damage the reputation of the Probation Service. The tribunal accepted that the reputational risk was heightened by the fact that the Probation Service was a statutory partner on Local Authority Safeguarding Children Boards.

When considering whether Q's human rights had been infringed, the tribunal determined that the interference with Q's right to respect for a private and family life was proportionate. The Probation Service's requirement to "ensure that its staff behave in a way which is commensurate to their obligations to the public in terms of safeguarding the vulnerable and children" was of particular relevance to this decision.

The EAT agreed. It held that, given the nature and importance to society of the employer's activities and responsibilities, and the importance of its relationship with Local Authorities as statutory partners, the tribunal was right to find the interference with Q's human rights was proportionate and justified, and did not render the dismissal unfair.

Comment

A key question in unfair dismissal claims is whether the employer acted reasonably in treating the reason for dismissal as a sufficient reason to dismiss. This question takes into account all the circumstances of the case. In this case, these circumstances included the employer's activities, policies, duties, standing in society and relationship with statutory partners. The employer was able to show that the importance of these to the organisation had been taken into account in the decision to dismiss.

In this case, the existence of a final written warning about the same issue put the employee on notice that she was obliged to disclose information about the involvement of social services with her family in future and made clear the standards expected of the employee.

When taking the decision to dismiss in gross misconduct cases, it is vital for employers to document clearly the contractual terms, rules, policies, or duties which the employee has been found to have breached. Employers should also explain in the outcome letter the importance of the relevant rules or duties to the organisation and why the breach is therefore a fundamental breach of contract. Where dismissal is because of reputational risk, employers should articulate the nature of that risk and why this risk arose from the employee's conduct itself and/or from the failure to disclose.

It is important to note that not all conduct outside of the workplace will have an impact on the employment relationship and properly lead to a disciplinary process. When deciding whether to take disciplinary action, employers should first consider whether the conduct has any bearing on the employee's ability to perform the role and/or raises reputational risks for the organisation.

Unfair dismissal: whose reason is it anyway?

Article published on 19 February 2020

When the decision-maker's reason for dismissal is not the real reason.

In an unfair dismissal claim, the employer must show that the reason, or if there is more than one reason, the principal reason for the dismissal was one of the five potentially fair reasons (capability, conduct, redundancy, breach of a statutory duty or "some other substantial reason"). The tribunal

will make findings about the facts which were known to the employer and the beliefs held by the employer which caused the employee to be dismissed.

Usually, the tribunal will only examine the knowledge and beliefs (at the time of the decision) of the individuals who make the decision to dismiss, for example the dismissing officer and person hearing an appeal.

How will the tribunal deal with cases where there is evidence to show that someone manipulated evidence before the decision-maker and that the real reason for dismissal was not in fact one of the potentially fair reasons? A recent case has provided clear guidance on when a tribunal can look behind an invented reason for dismissal to the real motivation of someone else in the organisation.

Case details: Royal Mail Group Ltd v Jhuti

Ms Jhuti worked in the Royal Mail Group's media sales team. During her probation period, she reported to her line manager (Mr Widmer) concerns about a colleague's breach of Ofcom

compliance rules. Under pressure from Mr Widmer, she retracted the allegations. Mr Widmer then made working life difficult for Ms Jhuti by raising unjustified performance concerns and singling her out by holding intensive weekly performance review and target setting meetings. Ms Jhuti went on sick leave for stress and raised a grievance accusing Mr Widmer of bullying and harassment.

A different manager, Ms Vickers, undertook a paper-based review of Ms Jhuti's performance as her probation was coming to an end. Mr Widmer told Ms Vickers briefly that Ms Jhuti had made allegations about a breach of compliance rules and that these allegations had been retracted. Ms Vickers did not speak to Ms Jhuti during her review (because of Ms Jhuti's sickness absence) and

did not have sight of the grievance, although she was aware of it. Ms Vickers dismissed Ms Jhuti on the ground of poor performance, taking into account the paper trail created by Mr Widmer.

Ms Jhuti brought claims for detriment and automatic unfair dismissal on the grounds of whistle- blowing. An employment tribunal upheld her whistle-blowing detriment claim. However, the tribunal dismissed the automatic unfair dismissal claim on the basis that the dismissing officer did not know about the protected disclosures and so could not have been motivated by them.

There followed a series of appeals in which the tribunal's decision was initially overturned by the EAT and then reinstated by the Court of Appeal. The Supreme Court has now clarified matters by agreeing with the EAT that Ms Jhuti's dismissal was automatically unfair on the ground of whistle- blowing.

This decision was on the basis that: "if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason".

Comment

This is a very important decision which is relevant to all dismissal cases and not only those which involve whistle-blowing. Where an employee can show that the real reason for their dismissal was not a fair reason, even where that real reason was unknown to the dismissing officer, a tribunal can find the dismissal to be unfair. This will only be the case, however, where the person manipulating the dismissing officer or putting forward false evidence to the investigation is someone above the dismissed employee in the hierarchy of the organisation. It would not apply, for example, where a colleague at the same level as the employee gave dishonest evidence to the investigation; although such a case might lead to a finding of an unfair process where the investigation was found to be inadequate in the circumstances.

In practice, it can be difficult for a dismissing manager to know whether the evidence put before them gives a true picture of the employee's performance or conduct. It is important that managers

in this position seek to have as a full a picture of events as possible rather than relying on what they suspect to be partial evidence. Taking steps to hear the employee's version of events is a fundamental part of the investigation process, as is seeking full documentary evidence relating to any grievances or concerns raised by the employee.

Where the employee is not well enough to take part in meetings, adjustments should be made to the process to enable them to participate, such as conducting meetings by telephone, taking written submissions or allowing a representative to attend on their behalf. Where there are compelling reasons to continue a process in the employee's absence, employers can still fairly dismiss. However, this is a risky step to take and we recommend taking legal advice before doing so.

Employer not vicariously liable for the vengeful act of an employee

Article published on 5 May 2020

The Supreme Court has final say on long-running series of cases caused by an intentional data leak.

Cases concerning an employer's liability for the actions of their staff often cause concern, particularly where the law is seen to be 'extended' by the courts to hold an employer liable. In such cases the primary concern is whether the wrongful actions of an employee can be fairly and properly considered as being done in the ordinary course of employment. If so, the employer may be liable.

The problem is that the application of this reasoning is highly fact-specific, meaning that cases which sound very similar to one another can be decided quite differently.

In October 2018 we considered the Court of Appeal's decision in the Morrisons Supermarkets Plc v Various Claimants case. In its decision, the Court of Appeal held that there was sufficient connection between the job and actions of a Morrison's employee to make Morrisons liable for

the employee's act of leaking personal data of Morrisons employees on to the internet. Morrisons appealed the decision and we now have a useful Supreme Court decision on this issue making clear that Morrisons was not liable for the employee's deliberate data breach.

Case details: WM Morrison Supermarkets plc v Various Claimants

Mr Skelton, an employee of Morrisons, was tasked with providing personal employee information to an external auditor. He did this, but also secretly made a copy of the data which he later posted to a website. He then also sent copies of the data to newspapers, posing as a concerned member of the public. It appears Mr Skelton had been motivated to do this as an act of vengeance against his employer after he received a verbal warning for a minor disciplinary matter.

When Morrisons was made aware of the breach it acted to protect its employees' identities and information. Not long after, Mr Skelton was arrested and ultimately he received a prison sentence for his actions. Several thousand Morrisons employees whose data had been leaked sued Morrisons for damages on the basis that the supermarket was liable for the actions of Mr Skelton.

The High Court and Court of Appeal found in the employees' favour on the basis that Mr Skelton's actions were within the course of his employment. This in part had been decided on the basis that, in the view of the courts, there was a clear causal link between what he had been asked to do by his employer and the information being leaked. The courts also found that Mr Skelton's motivation to harm his employer was irrelevant, in part because of the decision of the Supreme Court in Mohamud v Wm Morrison Supermarkets plc which suggested that the motivation of the employee was irrelevant.

The Supreme Court's decision

In its decision, the Supreme Court outlined that the lower courts had misapplied the tests for vicarious liability through a narrow interpretation of the Supreme Court's decision in the case of Mohamud. In particular, the Supreme Court was keen to draw attention to case law that had differentiated between employees who had acted in the course of their duties to their employer, thus making the employer liable, and cases where employees had been found to have gone off 'on a frolic of their own', where the employer was not liable.

One example was the case of Mohamud itself, where a petrol station attendant attacked a customer after ordering the customer not to return to the petrol station. In that case, the Supreme Court had found the employer liable because the assault was used to underline to the customer that they should not return to the petrol station. In short, the assault was directly related to the employee's duties and his place of work and the employer was liable for the assault.

As a result, in Mohamud the Court had determined that the employee's motivations were irrelevant because the vicarious liability test had already been met. Mistakenly, the lower courts had taken this to be a more general rule, which the Supreme Court found not to be the case.

The Supreme Court also referred to the case of Bellman v Northampton Recruitment Limited, a case in which the managing director of a company assaulted a subordinate at a work function after a disagreement arose about the MD's decision to recruit a particular employee. In this case the employer was found to be liable because the MD was making a show of his authority over colleagues, which he then underlined by carrying out the assault.

In contrast, the Supreme Court referred to a British Virgin Islands case in which a police officer left his post and injured a third party after firing his service revolver when he found his partner with another man. In this case, the officer's employer was not found liable for the injury caused because the officer had 'embarked ... on a personal vendetta of his own'.

The Supreme Court noted that motivation was an important factor in determining whether an employee was acting to further his employer's business or to his own personal ends. It concluded that it was clear that when Mr Skelton leaked the personal data of employees he was acting on 'a frolic of his own', motivated by vengeance against his employer for having verbally disciplined him previously.

For this reason, Morrisons was not liable for Mr Skelton's actions.

Comment

The decision of the Supreme Court in this case will provide some relief to employers who were concerned by the decisions of the High Court and Court of Appeal.

Had the previous decisions stood, employers would have been left facing a much broader potential liability for employee actions than before. That was, as long as a third party could show that there was a causal link between harm or damage to them and the job the employee was employed to do, employers were at risk of being found liable for the harm or damage caused, no matter what the motive of the employee.

In this case, that causal link was provided by Morrisons asking Mr Skelton to provide the employee data to a third party auditor and then giving him access to that data, which he misused. The Supreme Court has identified that this alone is not enough to make an employer liable for the subsequent actions of the employee.

However, as always with vicarious liability cases, the warning that these cases are highly fact sensitive remains.

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