Employment Law

Breaches of Data Protection and Vicarious Liability

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In various claimants v Wm Morrisons Supermarkets plc it was held that an employer could be held vicariously liable for the criminal actions of one of its employees in the breach of data protection.
In 2014, an employee, a senior IT manager, who held a grudge against his employer for disciplinary action that he had been subject to a year previously, published the details of 100,000 Morrisons employees on the internet. The details were also deliberately sent to three separate newspapers. Following this breach of statutory duty in relation to the Data Protection Act and the misuse of private information and breach of confidence, claims were brought by over 5,500 employees.
When considering Morrison’s primary liability under The Data Protection Act the High Court only found one breach of the DPA. The employee responsible had access to the data for a project, as part of his job but the information had been published from his home, on his personal computer, outside working hours and with the main objective of harming Morrisons. The only breach the court could identify was that “Morrisons had not organised the deletion of the data from his work computer”. This failure had not caused any loss as the rule is aimed at the unintentional retention of data rather than its intentional misuse.

In order to assess vicarious liability it needed to be established whether the employee’s actions had been part of their job and if their wrongful conduct could be closely associated with their authorised duties. This would bring the breach during the course of employment. The data had been dealt with correctly as part of the manager’s role and the court held that the breach – which was the later publication of the data – was actually part of a sequence of events that was part of his role and was therefore connected to his employment.
Morrisons have been granted the right of appeal against the decision.

Written by

Lorraine Emery
4th January 2018

 

Injury to feelings awards

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In Durrant v Chief Constable of Avon & Somerset Constabulary the Court of Appeal held that when considering assessment claims for injury to feelings prior to September 2017 the Joint Presidential Guidance ‘Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK)Ltd’ would be relevant.

Whilst not an employment related case, this case has implications for discrimination cases generally. In this case the Claimant was a woman of mixed race. Her race discrimination claim regarding her treatment over a suspected assault which was successful as the Court found the following:-

– In the arrest the Claimant had her hands handcuffed behind her back.

– Although her arrest was warranted, the police concentrated on arresting her first before any of the white men who were also involved in the assault.

– While she was being held the staff delayed in allowing the Claimant to use the toilet. As a result it was necessary for her to urinate on the floor of her cell in front of male staff.

The appeal concerned the amount awarded to her for injury to feelings. Despite the guidance not having come into effect at the time, the Court applied the guidance “as the best way in the circumstances in which this court finds itself making due allowance for the effect of interest and an appropriate element of uplift in relation to the long and hard road…” In doing so it increased the initial award for injury to feelings from £4,950 to £14,000.

Written by

Rachael Jessop
19th December 2017

Working Time: Workers can work 12 consecutive days without a weekly rest break

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In Maio Marques da Roda v Varzim Sol the European Court of Justice held that the EU Working Time Directive does allow for weekly rest of 24 hours for a worker, which can be given at any point in a 14 day period.

In this case, a redundant casino worker claimed that he had not been given a sufficient weekly rest period. He argued that he was entitled to a weekly rest period of 24 hours and that this should have been given at the latest after working six consecutive days.

It was held that although there was no requirement for a rest period to be provided after six consecutive days of work, it should be provided within each 7 day period. The Directive would therefore allow an employee to have a rest day at the beginning of one 7 day period and then again at the end of the next 7 day period, therefore allowing 12 consecutive days of work.

Written by
Rachael Jessop
19th December 2017

 

Without Prejudice – ‘Protected’ Conversations

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In Graham v Agilitas IT Solutions Ltd the EAT held that a Respondent could not rely on parts of a ‘without prejudice discussion’ or protected conversation and at the same time use the rules to protect itself.

The Claimant was about to be dismissed. During discussions which the employer described as being ‘without prejudice’ under s111A of the Employments Right Act 1996 the Claimant made some comments which were then used by the Respondent as the basis of the forthcoming disciplinary action. The Claimant argued that there had been improper conduct in this meeting in the form of bullying and threatening behaviour by the Respondent.

The EAT held that a dispute arose far earlier than originally thought from existing case law meaning that in theory the without prejudice rule could apply for the discussions. The EAT went on to find that the employer could not pick and choose which parts of the meeting were protected in order to preserve its own conduct and that the Claimant would be entitled to have the improper conduct examined by the Tribunal. The case was remitted to the Tribunal for re-hearing.

Written by
Lorraine Emery
14th December 2017

Pensions: Part Time Workers & Comparators

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In Dr Parker v MDU Services Ltd the Claimant argued that the pension scheme offered by her employer was unfair and indirectly discriminated against any worker with a mixture of both full and part time service. The Claimant had been employed for a total of 27 years and this equated to 21 years full-time service. The maximum pension would have been available to an employee with 20 years’ service and yet the Claimant received 21/27 of the maximum and she claimed that this was discriminatory. This particular scheme was unusual as the rights and rates depended on the date and age an employee joined the scheme.

The tribunal found that the Claimant had missed a crucial point when using her comparator. It was important to use a comparator that joined the scheme at the same time and age as the Claimant. In this situation the comparator would have accrued the same pension entitlement as the Claimant and showed that there was, therefore, no discrimination.

The EAT held that the “degree of copying and pasting” of the Respondent’s submissions, from Andrew Short QC, into the tribunal judgment “was extraordinary” but although this approach was unsatisfactory it did not affect the decision.

Written by

Edward Aston
5th December 2017

Victimisation: Knowledge of Protected Disclosure

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In Royal Mail Ltd v Jhuti the Court of Appeal held that if a person making a decision to dismiss was unaware of the protected disclosures and was deliberately misled by the employee’s line manager to believe that the reason for dismissal was poor performance then this would not be considered a whistleblowing dismissal.

The Claimant, Ms Jhuti, was a Royal Mail employee and made a protected disclosure to her line manager. During her dismissal process, the line manager, being motivated by the protected disclosure, purposely misled the investigation manager allowing her to think that Ms Jhuti should be dismissed for poor performance. The EAT found that the reason and motivation of both the decision maker and the line manager should be taken into account and this could be attributed to their employer.

The Court of Appeal reversed the EAT’s decision. It was held that when determining the ‘reason for dismissal’ it was only necessary for the tribunal to consider the mental processes of the person who actually made the decision to dismiss. Some doubt was raised whether the position might be different if, in cases of manipulation, the CEO deliberately manipulated the dismissal decision.

It was stressed that unfair dismissal cases do require unfairness by the employer. Unfair treatment by line managers or colleagues is unimportant unless they can be properly attributed to the employer.

The employment tribunal now have to decide whether Ms Jhuti can claim compensation for dismissal consequent on unlawful detriment.

Written by

Edward Aston
28th November 2017