A v B Local Authority and C Governing Body of School [2016] EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ). Elias LJ dissented.
Temporary agency work
July 7th, 2016 by James Goudie QCArticle 1 of Directive 2008/104/EC on Temporary Agency Work defines its scope. Two concepts that are involved are “worker” and “economic activity”. Both have been considered in an Advocate General’s Opinion on 6 July 2016 in Case C-216/15, Betriebsrat der Ruhrlandklinik v Ruhrlandklinik.
Article 1 of the Directive provides that the Directive applies to “workers” with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction. It applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in “economic activities” whether or not they are operating for gain. Read more »
Brexit and the Future of Data Protection
June 24th, 2016 by Anya Proops QCAs we all reel in shock at today’s news, thoughts will inevitably turn to how our impending divorce from Europe will impact on the sphere of data protection. Our own data protection laws have of course been profoundly shaped by Europe. Until yesterday, many had assumed that Europe’s control over our data protection laws would in due course become even more intensive, as we journeyed into a world in which the EU Data Protection Regulation reigned supreme across Europe. However, the clocks have stopped. The Regulation is not to become law in the UK. The future of data protection law is therefore necessarily shrouded in mystery.
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Reinstatement
June 15th, 2016 by James Goudie QCIn McBride v Scottish Police Authority [2016] UKSC 27 the Supreme Court has considered the remedy for unfair dismissal of reinstatement, which must of course be contrasted with the remedy of re-engagement. An ET has no power to order reinstatement in terms which alter the contractual terms of the complainant’s employment. The question was whether that is what the ET had purported to do in this case. The Supreme Court held that it had not.
The appeal arose from the scandal over the disputed identification of a fingerprint in a murder inquiry. A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office fingerprint bureau as belonging to DC McKie. As a result of the identification, DC McKie was charged with perjury for giving evidence that she had never been to the crime scene. During DC McKie’s trial differences of opinion emerged about the fingerprint identification and she was acquitted.
Employees, Confidential Information and Data Protection
June 3rd, 2016 by Christopher KnightEmployment lawyers have tended to see data protection as an employee weapon; in particular the strategic fishing expedition subject access request as a precursor to High Court or Tribunal claims. But there is at least one angle from which the DPA can be used as a weapon of attack by employers against former employees. Where an employee leaves their employer and takes a client list with him, not only will he be in breach of the usual restrictive covenants he is likely to have, but he may also have committed a criminal offence under section 55 DPA. Read more »
Court interpreters are not ‘employees’
May 12th, 2016 by Claire HalasToday, in the case of Secretary of State for Justice v. Windle and Arada [2016] EWCA Civ 459, the Court of Appeal (Underhill LJ giving judgment) decided that Court and Tribunal interpreters are not employees for the purposes of pursuing claims under the Equality Act 2010. In doing so, the Court overturned a decision of the Employment Appeal Tribunal (presided over by HHJ Peter Clark) [2015] ICR 156, and restored the judgment of the Leeds Employment Tribunal.
The case concerned professional interpreters working for the Courts and Tribunals on multiple engagements, with no overriding or ‘umbrella’ contract of employment. The appeal was concerned with whether the professional interpreters could be classified as ‘employees’ for Equality Act purposes for each engagement. The appeal turned on a narrow question: whether an employment tribunal could take into account the fact that in between assignments there was an ‘absence of mutuality of obligations’. The EAT had held that this was impermissible.
Lord Justice Underhill allowed the appeal, stating that when determining the employment status of an individual it is ‘necessary to consider all the circumstances’: see §23. Excluding consideration of the absence of mutuality between engagements ‘in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.’
Furthermore, Underhill LJ explained at §23, ‘It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense.’
The same point had been made by Elias LJ in Quashie v. Stringfellows Restaurant Ltd. [2012] EWCA Civ 1735, in respect of employment status for unfair dismissal claims. Underhill LJ explained that there was no reason to apply a different approach when looking at the question of employment status in ‘the extended sense’ under the Equality Act.
Clive Sheldon QC of 11KBW represented the Secretary of State for Justice on the appeal.
Click here to read judgment
Whistleblowing: interim relief
March 7th, 2016 by James Goudie QCIn Parsons v Airplus International Ltd, UKEAT/0023/16/JO, Ms Parsons claimed that she had been dismissed for whistleblowing. She applied for interim relief under Section 128 of the Employment Rights Act 1996. If, on the hearing of such an application, it appears to the ET that it is likely that on determining the complaint the Tribunal will find in favour of the Claimant, the Tribunal must make an Order for interim relief. For many years it has been understood that in applying this provision the ET must ask itself whether the Claimant has established that she has a “pretty good chance” of succeeding at the substantive hearing. This interpretation, says Judge Shanks, is justified, because if the employee satisfies the test the ET must make an Order for interim relief and, if it does so, the employer is obliged to pay the employee pending the determination of the complaint and there is no provision for re-payment in the event that she ultimately fails on the merits. Read more »
After Cavendish Square/ParkingEye, is it more or less likely to be a penalty?
November 23rd, 2015 by Julian WilsonReports of the decision of the Supreme Court in the joined appeals in Cavendish Square and ParkingEye left me confused because some reckoned the decision represented a narrowing of the application of the penalty doctrine whilst others considered it had expanded the doctrine’s scope. So on a wet weekend afternoon I took hold of a copy of the Judgment – [2015] UKSC 67- and tasked myself to find out. Here is what I found. Read more »
When is travelling time working time? And when does working time not earn the minimum wage?
September 14th, 2015 by Harini IyengarThe European Court of Justice (“the ECJ”) has now given judgment in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security Case C-266/14 consistent with the Advocate General’s opinion, on which James Goudie QC blogged recently. For peripatetic or mobile workers (who do not have a fixed or habitual workplace) time spent travelling from home to the first appointment and from the last appointment back home counts as working time under EU law. The judgment has very significant implications for employers whose workforce includes, for example, home care staff, gas fitters, and sales teams. Read more »
Petter v EMC: Employment Share Schemes, Choice of Forum and Anti –Suit Injunctions – did the CA take a step too far?
August 13th, 2015 by Julian WilsonIn granting the anti-suit injunction against EMC Corporation in Petter v (1) EMC Europe Limited (2) EMC Corporation [2015] EWCA Civ 828, the CA considered that it was upholding the policy in section 5 of Regulation (EU) 1215/2012 for the protection of employees from being sued other than in the courts of their domicile. But was it exceeding the limits of its jurisdiction to regulate the lawful conduct of foreigners, and interfering in the process of justice in the court of a friendly foreign state? Read more »