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          EmpLaw Newsletter April 2022

          April 2022

          The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.

          Restriction of proceedings orders

          Employers dread the vexatious litigant. Even the most spurious of tribunal claims takes up valuable management time and incurs legal fees to defend. The judgment of the EAT in Attorney General v Taheri will be a salve to those employers who have previously had their fingers burned by a serial complainer. The EAT can make an RPO - an order restricting an employee’s right to bring tribunal proceedings - if the employee has habitually and persistently, and without reasonable grounds, brought vexatious proceedings in the employment tribunal (or EAT) against one or more employers. In Taheri, the EAT has shown that there is a limit to what the employment tribunal system is prepared to accept from a vexatious litigant.

          The employee brought 44 employment tribunal claims between 2012 and 2020, all of them relating to failed job applications. He brought a range of discrimination claims based on age, race and disability. Over that time, the tribunal found some of his claims were vexatious, other claims were struck out, and some were withdrawn after an application for strike out or a deposit order. The employee had threatened prospective employers with adverse publicity and told their lawyers he would report them to their regulatory authorities. He appeared to have targeted certain companies and used the tribunal process to put pressure on prospective employers to pay out low-level settlements. The Attorney General (the government legal department) applied for an indefinite RPO, preventing the employee from lodging any more claims. The employee resisted the application saying it breached his right to a fair trial under the European Convention on Human Rights and his rights under the Equality Act 2010.

          The EAT granted the order. The employee’s claims were repetitious, with the same kind of allegations being made against different companies. The employee had sought similar sums of money and adopted the same tactics which often involved withdrawing his claims at an early stage. Only some claims had been struck out by the tribunal, but all had been brought without reasonable grounds. He had not won a single claim after a full hearing. The employee’s conduct was vexatious and an abuse of the tribunal process. The EAT said he had weaponised the tribunal process. Dealing with his claims took up a large amount of judicial time that the tribunal could have spent dealing with other claims. The RPO was necessary for public protection against abusive claims and to ensure that the court process more generally was not hampered by persistently baseless proceedings. The order would act as a filter rather than a complete ban - the employee could still apply to the EAT for permission to bring proceedings in an appropriate case, or to the tribunal if there were reasonable grounds and it wasn’t an abuse of process.

          This order is good news for employers. It is an extreme example of an unreasonable job applicant trying to make a living out of bringing spurious claims against unsuspecting businesses. These orders will be as rare as the facts of this case. However, this judgment acts as a reminder to employers that the employment tribunals and appeal courts will act decisively in relation to vexatious litigants where appropriate, empowering employers to do the same where claims are entirely baseless.

           

          Content

          1. Restriction of proceedings orders
          2. Employment tribunal procedure
          3. Injury to feelings
          4. Restrictive covenants
          5. Victimisation
          6. Confidential information
          7. PILONs
          8. Covid-19
          9. National minimum wage
          10. And finally…

           

          Employment tribunal procedure

          The employment tribunal rules of procedure govern the litigation process up to and including a full hearing. There are rules about disclosing relevant documents  - parties must show the other side any documents that they intend to rely on as well as any documents which could adversely affect their case, or support or undermine the other party’s case. Rule 50 deals with privacy and the circumstances in which the tribunal may prevent or restrict public disclosure of any part of the tribunal process in the interests of justice. This can include an order to anonymise the identity of any party or witness or other person named in proceedings. The courts, including employment tribunals, operate on the basis of ‘open justice’ to allow for public scrutiny of court decisions. The reporting of decisions is an important part of open justice and the right to name people in judgments is an important aspect of the right to freedom of expression and the right to a public hearing. The EAT has looked recently at a case where key clients were named in a claim and the employer wanted them to be anonymised for commercial reasons.

          In Frewer v XXX, the employee was a commercial director who was dismissed in 2020 after more than ten years of service. The employer said his dismissal was for conduct reasons after he sexually harassed two female colleagues at a work event. The employee brought claims for unfair dismissal and whistleblowing, including over 100 alleged protected disclosures. Some of those whistleblowing allegations related to named clients of the employer who the employee alleged received a disproportionate number of hits when people searched for holidays. The employer asked for the names of its clients to be anonymised in the tribunal paperwork. They also asked for certain information to be redacted  (blanked out). The employment tribunal agreed that the client names should be anonymised, and certain commercially sensitive and irrelevant information should be redacted. The employee appealed.

          The EAT said the tribunal had been wrong to grant the employer’s requests. The redaction order had been given without properly considering the disclosure duties. In granting the order to anonymise client names, the tribunal had not considered the employee’s freedom of expression rights or considered cases about the importance of naming people in proceedings. The EAT said there is a public interest in the press being able to report the names of the people involved in legal proceedings. If anonymity orders could be granted simply because the names weren’t strictly relevant to the proceedings, such orders could be granted in most cases. Arguably the public would have a legitimate interest in knowing the names of those key clients who had been given an alleged advantage and there would be less interest in the story if the names were kept secret. The tribunal should have considered these issues before granting the order. There needed to be a full consideration of the competing rights involved before granting such an order - the employee’s right to freedom of expression and a fair hearing on the one hand and the company’s issues of commercial confidentiality on the other.

          The EAT in this case also provided helpful commentary on the 100 alleged protected disclosures involved in this case, saying that the employee needed to whittle those down to those which he said caused his dismissal. The judge commented that claimants think the chances of winning will increase if there are a greater number of whistleblowing allegations, saying that the contrary is often true. This will be music to many employers’ ears. Employers should also note that employees may successfully argue that there is public interest in naming individuals or businesses in employment litigation. Tribunals will need to be persuaded that anonymisation is necessary when balanced against the claimant’s rights to a fair hearing and freedom of expression. The EAT has indicated its view that the two key clients should be named, which could have commercial consequences for the employer and the continuation of these proceedings.  There may be cases for other employers where the naming of clients in employment litigation would be commercially sensitive. Employers will need to consider this angle along with all the other strengths and weaknesses in any given case to decide the best commercial way forward overall. [back to top]

           

          Injury to feelings

          If an employee wins their claim for discrimination they will be entitled to compensation. That compensation may include a payment for injury to feelings. A case called Vento v Chief Constable of West Yorkshire Police set guidelines for how injury to feelings awards should be calculated. Cases will fall into three bands: the lower band is for less serious cases of discrimination including one-off or isolated acts; the middle band is for serious cases which don’t merit a top band award and the top band for the most serious cases of discrimination including lengthy campaigns.

          Back in 2002 when Vento was decided, the compensation guidelines for those bands looked neat - £500 to £5000 for the bottom band, £5000 to £15,000 for middle band and £15,000 to £25,000 for the top band. The value of those bands is adjusted each year to take account of inflation. From 6th April 2022, the Vento band compensation ranges will be:

          • Lower band - £990 to £9,900
          • Middle band - £9,900 to £29,600
          • Top band - £29,600 to £49,300

          Only in the most exceptional cases will compensation exceed £49,300. [back to top]

           

          Restrictive covenants

          Employers worry about employees, particularly senior managers, defecting to a competitor and taking confidential information, clients or key staff with them. Information about a competitor’s business plans, clients or price lists can be highly attractive for a recruiting business or to an individual hoping to set up business in competition with their current employer. Restrictive covenants are clauses in contracts of employment or other agreements which restrict an employee’s ability to act in competition with the employer for a fixed period after the end of employment. These clauses will be void for restraint of trade (and unenforceable) unless the employer can show it has a legitimate proprietary interest to protect and the clause goes no further than is reasonable to protect it.

          In Law by Design v Ali, the employee was a solicitor who worked for a small boutique law firm that did employment law work, mainly for NHS employers in the North West. Over the years, the employee was promoted to director and the senior management team. In January 2021, she signed a service agreement agreeing not to compete with the employer for 12 months following her termination, in relation to those parts of the business in which she was involved within the last 12 months of her employment. She also agreed not to poach clients or staff or misuse confidential information. In return for signing the agreement, she received a significant pay rise. She indicated to a colleague at the time that she didn’t ‘like’ the 12-month restriction but wanted to take the money. Just a few months later, in May 2021, the employee resigned to work for a much larger competitor. In the last 12 months of employment, she had worked almost exclusively for NHS clients who had been assigned by the employer (rather than being self-generated). She said the non-compete clause was too wide, lasted too long and was unenforceable.

          The High Court found that the non-compete clause was reasonable. The clause was limited to those parts of the business in which the employee had worked in the year before her termination. The 12-month duration was also reasonable for the business to find another lawyer to replace the employee. That new recruit would want to work for a small firm in a specific geographical region and then be required to work out their notice period. The employee conceded that it would take the employer 12 months to achieve this. The High Court also granted an injunction to enforce the covenant. The employee had recently agreed the clauses in the months before her departure. She didn’t like but accepted the terms in return for more money. She was an experienced employment lawyer used to dealing with such clauses and understood the bargain. The employee had told the new employer that she planned to move ‘her’ clients to the new firm unless the covenants were enforceable. The non-compete clause was necessary due to the difficulties in policing and enforcing the confidentiality covenants. The employee was free to join a firm that did not compete with the employer for NHS client work in the North West, in order to legitimately protect the employer’s business.

          This case gives insight into how the courts apply the strict rules surrounding non-compete clauses in situations where they are needed the most. In this case, the employee was a senior employment lawyer who knew exactly what she was agreeing to when she agreed the terms of the service agreement, and 12 months of restriction, in return for a big pay rise. The non-compete clause was restricted to the kind of work she did in the region where the employer operated. It was not too wide and did not stop her working elsewhere for other clients including NHS bodies. The employee’s intention, in this case, was to move about a third of the employer’s revenue to a new employer. The Courts enforced the employer’s reasonable covenant aimed at protecting its business interests in a reasonable way. The employee had banked on this small employer not having the financial resources or the stomach to fight her move to a bigger business and was proven wrong. [back to top]

           

          Victimisation 

          Victimisation is a word that is often used incorrectly. Victimisation is a particular kind of discrimination that occurs when an employer treats an employee badly (a detriment) because they have done a ‘protected act’ or the employer believes that they have done, or may do, a protected act. That protected act can include bringing a discrimination claim, raising allegations of discrimination, or being a witness in a discrimination claim. The EAT has looked at a case recently where the employment tribunal got things wrong in terms of what could constitute a ‘detriment’.

          In Warburton v Chief Constable of Northamptonshire Police, the employee had brought a claim against another police force for discrimination. He had applied for a job and was made an offer which was then withdrawn  He applied for a job with another police force and said in that application that he had an ongoing discrimination claim against another police force. He also had outstanding complaints against other police forces. Northamptonshire Police said his application could not progress while he had outstanding complaints against other forces. They put his application on hold until the outcome of his discrimination claim. He brought a claim for victimisation. The employment tribunal agreed that the employee had done a protected act - bringing a discrimination claim - but said that there had been no detriment. Therefore his victimisation claim failed. The employee appealed.

          The EAT said the employment tribunal had got it wrong. They had referred to the wrong law - the rules about direct discrimination, rather than the law on victimisation. They had not asked the right question, which was ‘is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?’. Instead, the tribunal had asked whether they - the tribunal - thought it was to the employee’s detriment. The correct test is whether the reasonable worker would consider the treatment to be a detriment, even if a reasonable tribunal did not, which is a much lower bar for an employee to get over. It filters out only an unjustifiable sense of grievance. Even if one reasonable worker takes the view that the treatment is to his detriment, that is enough, even if other reasonable workers do not think the same. The EAT said it should not be difficult for employees to establish detriment on that basis. The tribunal had also got the test of causation - the ‘reason why’ the employee’s application was placed on hold - wrong in this case. The correct question was whether the protected act - here the discrimination claim brought against another force - had a significant influence on the outcome. There wasn’t enough clear evidence for the EAT to substitute its own decision, so the claim was sent back to a different tribunal for a new hearing on the victimisation claim.

          This case shows that establishing detriment is not difficult for an employee. All they have to do is show that a reasonable worker would consider that the treatment was detrimental. It is also a reminder that detriment itself is not enough for a victimisation claim. The employee must show that the protected act - here his discrimination claim against another force - had a material influence on the decision to pause the vetting process. In this case, the evidence wasn’t clear but did show that there were other issues at play including other complaints issued against other forces, which may have been more relevant to the decision to pause his application. The decision may not change in the long run, but the EAT has demonstrated that tribunals need to apply the right reasoning. [back to top]

           

          Confidential information

          Case law has shown that an employee’s right to privacy is not reduced to zero at work. Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for their private and family life and correspondence. Any breach of that right can result in a misuse of confidential information claim. In Barbulescu v Romania, the employee was dismissed for personal internet use which was banned at work. The employer accessed private emails which the employee had sent to his fiancé and brother as well as his private Yahoo messages from his work computer. The ECtHR said the employee’s right to privacy had been infringed. It is a balance though. In the recent case of Brake v Guy, the Court of Appeal decided that an employer did not breach any privacy rights when accessing an employee’s personal emails.

          The employee’s job with the employer had terminated. She was suspected of misconduct. The employer shared what the employee alleged were private and confidential emails, contained in work email accounts, with their lawyers and her trustee in bankruptcy. The employee applied for an injunction to stop the employer from using those emails which she said were private and confidential. The employer denied the emails were private. They were contained in a generic business email account to which other staff, as well as the employee, had access, not the employee’s personal work email account. The employer also said there was a public interest in accessing the emails due to the allegations of serious misconduct against the employee.

          The High Court dismissed the employee’s claim for breach of confidence because the employee chose to put her own private emails into the employer’s business email account instead of one of her own private accounts. She did not have a reasonable expectation of privacy and even if she had, it would not have breached this right for the employer to share them with their lawyers in order to get advice.  The employee appealed but the Court of Appeal upheld the High Court decision. The employee had only provided the Court with 2 out of more than 3000 emails she said were private and hadn’t shown why there was a reasonable expectation of privacy. The fact that the account was shared with other employees who did not use it for private emails suggested it was not reasonable for the employee to expect the emails to remain private. The password protection on the account was a security measure to protect the employer rather than the employee. Individual email accounts were set up at the same time as the business email account, inferring that the individual accounts had some reasonable expectation of privacy that the communal account did not. The nature of the employee’s activity was also relevant when considering whether there was a reasonable expectation of privacy. If that activity included unlawful conduct (as was suspected here) that was relevant both to privacy, the duty of confidence and any breaches.

          Cases involving privacy at work are legally and factually complex. However, this case provides useful guidance to employers about how to protect themselves from litigation. It is a good idea for employers to ensure that employees have their own named email accounts at work even if they control another more generic business account and make it clear that private emails should be sent and received from the named account. Having a clear policy about expectations around privacy and private internet use is a good idea, but it is important to be proportionate. An expectation of zero private use is unlikely to ingratiate you to your employees. It is far better to have a policy that clearly sets out your reasonable expectations, ensuring a good balance between work expectations and private internet use. [back to top

           

          PILONs

          Notice is normally needed in order to lawfully end an employment contract. A failure to give notice - by either party - will usually be a breach of contract. Many employers include PILON - payment in lieu of notice - clauses in employment contracts to enable them to end employment early provided they pay the correct notice pay. If an employee resigns, there will be no dismissal. However, s95 Employment Rights Act 1996 says that an employee is dismissed if the employment contract is terminated by the employer, with or without notice. The EAT has looked at a case where the employee resigned but the employer ended the contract before the notice period had ended by making a payment in lieu of notice. The employee said he had been dismissed and was therefore entitled to bring an unfair dismissal claim.

          In Fentem v Outform, the employee was employed for almost 20 years and required to give 9 months’  notice. He resigned on 16 April 2019, so his last day was due to be 16 January 2020. In December 2019, the employee was called into a meeting and told his employment was being terminated with immediate effect and that he would be paid for the remainder of his notice period in lieu. The employee brought a claim for unfair dismissal.  The tribunal had to decide whether there had been a dismissal. The employee said that the PILON - which cut short his employment after resignation - was a dismissal according to section 95. However, the employer relied on a case called Marshall v Hamblin, where the EAT had decided that a resignation is not converted into a dismissal if the employer exercises their contractual right to make a payment in lieu of notice. Marshall said that kind of termination is still a resignation and all that changes is the termination date. In Fentem, the employment tribunal agreed with Marshall and said that the employee had resigned rather than being dismissed. The employee appealed, saying Marshall was manifestly wrong and should be overturned.

          The EAT disagreed. To overturn Marshall, and be able to give a judgment that effectively went against it, the EAT had to show that the decision had been obviously wrong. The EAT clearly had problems with the reasoning in Marshall, given that terminating employment and paying a PILON in any other circumstances is a dismissal under section 95. However, the EAT could not say that the judgment was manifestly wrong and so dismissed the appeal.

          This case confirms that a decision to make a payment in lieu of notice, in accordance with a contractual right to do so, will not turn a resignation into a dismissal. All the employer must do is pay the balance of the notice period. However, the employee, in this case, has asked for permission to appeal to the Court of Appeal. There may yet be confirmation of the legal position from a higher court, one way or the other, in due course. [back to top]

           

          Covid-19

          The government has published its plans for Covid-19 testing from 1 April. Free universal testing is going to be abolished. Some groups will continue to get free tests if they develop symptoms including NHS employees and staff who work in care homes, homecare, supported living, adult day care centres, hospices, prisons, immigration detention centres, domestic abuse refuges and homelessness settings. While case rates are high,  some of these groups (staff who work in adult social care, hospices, some prisons and detention centres and patient-facing NHS staff) will also have access to free asymptomatic testing. If other employers want to continue workplace testing in some format, they will have to pay for the tests.

          From 1 April 2022, the government will publish guidance for employers to follow to reduce Covid-19 transmission at work. Employers will welcome guidance at a time when many are worried about moving from government guidance to employers and employees making their own judgements about how to keep themselves and others safe. Will the advice to stay at home if unwell (with a respiratory illness) remain when access to free testing has gone? If an employee comes to work coughing and spluttering, what can an employer do about it, especially if other employees complain? From 25 March, SSP is no longer payable to employees who test positive for covid - only if they are unable to work and only from day 4 of any absence. As such, presenteeism may cause as many problems for employers as covid-related absence has done historically. Sector-specific workplace safety guidance is set to be replaced by more general public health guidance, but will that be clear enough for employers to understand and apply in the workplace?

          Previously, it has been possible for employers to sidestep the juggle between covid-nervous and covid-sceptical employees, providing government guidelines as the reason for workplace rules. Depending on what the new government guidance says, employers may have to shoulder more of the responsibility for decisions they take about transmission measures in the workplace. Risk assessments after 1 April no longer need to refer directly to Covid-19, but covid rates remain stubbornly high and some employees, especially those at higher risk, will remain worried. Employers will need to think about how to deal with this particular risk in their risk assessments. Simple steps such as advising employees with coughs and colds to work from home until they are well, or paying for tests, may all be reasonable steps to protect your vulnerable staff and customers. Longstanding measures such as good cleaning and ventilation will help to reassure those who are worried, with little expense to those who are not.

          Employers will welcome government guidance to help them to navigate new waters in circumstances where the underlying weather conditions haven’t really changed. Most employers want to get back to business as usual but keeping everyone safe and as covid-free as possible is the key to remaining productive. Striking the right balance is vital to ensure your business thrives in the ‘new’ normal. [back to top]

           

          National minimum wage

          The government has confirmed that it has accepted the views of the Low Pay Commission and apply the following increases in the National Living Wage and National Minimum Wage from 1 April 2022:

          • Age 23 and over (the National Living Wage) - £9.50 per hour (up from £8.91)
          • Ages 22 and 23 - £9.18 (up from £8.36)
          • Ages 18 to 20 - £6.83 (up from £6.56)
          • Ages 16 and 17 - £4.81 (up from £4.62)
          • Apprentice rates - £4.81 (up from £4.30)

          The government has also accepted that the exemption from NMW rates for live-in domestic workers is unfit for purpose and should be removed when parliamentary time allows. [back to top]

           

          And finally…

          Even for seasoned employment law practitioners, the decision of P&O to sack its entire workforce with no notice and by pre-recorded video came as a shock. No warnings, no consultation, no in-person discussions. Such was the shock and speed of the dismissals that some employees were unable to gather all their belongings in time. P&O’s plan is to reduce costs by replacing the entire 800-strong workforce with much cheaper agency workers to whom they believe the UK’s national minimum wage rules will not apply.

          The Trade Union and Labour Relations (Consolidation) Act 1996 sets out rules about what must be done by businesses before making mass redundancies. Employers must engage in collective consultation if they intend to make 20 or more redundancies within a 90-day period. Consultation should start ‘in good time’ but at least 30 days before the first dismissal takes effect if proposing to dismiss 20 or more employees, 45 days if planning to dismiss more than 100. The business must also inform the government about plans at least 30 days (45 if more than 100 redundancies) before the first termination. Employers must also conduct individual consultation and give proper notice in accordance with employment contracts. Breaches of collective consultation laws carry the risk of a protective award of 90 days’ pay, uncapped, per employee, as well as breach of contract claims for unpaid notice and unfair dismissal claims.  Failure to inform the Business Secretary of intended mass redundancies can result in a criminal conviction (for the company and its officers) and a fine.

          So why did P&O choose to ignore all of this? At the time of writing, there appear to be legal loopholes that take P&O’s actions outside some of these employment law rules, including the obligation to pay their new workers at UK minimum wage rates. P&O say employees will not suffer financially as they have offered them enhanced redundancy packages - presumably taking into account the cost of the legal breaches - if they sign settlement agreements agreeing not to bring claims. But the damage is done. With travel business profits decimated by two years of pandemic restrictions, the general public would have understood that P&O might need to take measures to ensure future profitability. No doubt employees and unions would have resisted redundancies, but perhaps accepted eventually that some change was inevitable. Doing things properly, giving employees both advanced warning and respect, may have cost little (if any) more than the enhanced packages they are now offering to pay. Its public reputation is in tatters.

          The government has said it is going to take steps to change the law to ensure that all new P&O workers receive the national minimum wage. If those legal loopholes are closed, P&O’s costs savings may be significantly diminished. Whatever happens, the public perception of the business has certainly diminished. There may well be a greater cost in the long run, not only for bypassing the law but for the flagrant manner of so doing. [back to top]