EmpLaw Newsletter June 2016

June 2016

Here is our latest on-line Employment Law newsletter which will assist in keeping you informed of various current employment issues. 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.


1. The wait is almost over.

2. Injury to feelings compensation for breach of WTR?

3. An unstable picture for young, pregnant women

4. Dismissal for failure to break up was discriminatory

5. Tighter rules on illegal working 

6. Destruction of confidential information

7. A question of status

8. Inside the minds of parties in dispute

9. What’s a philosophical belief?

10. And Finally...


The wait is almost over.

On June 10th, Euro 2016 kicks off. Patriotism will be the name of the game as four weeks of high-intensity football stand to dominate our screens and our conversations. Employers, be prepared. 

Be prepared for national rivalries, last-minute holiday requests, staff absences, and the general distraction that epic sporting events like this bring with them. Plan ahead; lay down the rules on what you expect of your workers, and what will happen if they don’t play ball. Remind them of your policies. And if you’re unsure about whether or not these policies hit the mark, it’s time for a review. 

But being prepared doesn’t just mean shaping up to deal with the negatives. It’s also about getting into the spirit. Sport is known for bringing people together. And the Euros presents great opportunities for strengthening morale and loyalty by playing the fun employer (within reason, of course!). [back to top]

Injury to feelings compensation for breach of WTR?
Gomes v Higher Level Care

Ms Gomes won her claim for compensation for her employer’s breach of the Working Time Regulations (WTR). She hadn’t been provided with the necessary rest breaks. But did that also entitle her to damages for injury to feelings, usually claimed in discrimination cases? 

No, said the Employment Appeal Tribunal. Injury to feelings compensation isn’t available in cases like this. Where there is an element of discrimination involved in a failure to allow rest breaks then, yes, injury to feelings may become relevant. But otherwise, it doesn’t apply. 

Note, though, that if an employee’s health had gone downhill as a consequence of their employer’s WTR breach, that could be the basis of a compensation claim (damage to health, as opposed to injury to feelings). [back to top]

An unstable picture for young, pregnant women

Research by the Equality and Human Rights Commission has shown that pregnancy and maternity discrimination is affecting younger mothers more than others. Six times as many women under 25 than average reported having been dismissed after telling their employers they were pregnant. 

This group of workers is said to have a lower level of awareness of their rights and are in less stable employment situations. They lack confidence in talking to managers about their worries and feel under pressure to resign rather than raise issues. 

Caroline Waters, Deputy Chair of the Equality and Human Rights Commission is reported as saying, “We cannot continue to allow these young women to be unfairly held back in the starting blocks of their working lives when they could have the potential to achieve greatness.”

The Commission’s new digital campaign around this (called  
#PowertotheBump) has been designed to boost the knowledge and confidence of young expectant and new mothers. And there’s a strong message for employers here, too: pregnancy and maternity discrimination is real and it’s damaging. [back to top]


Dismissal for failure to break up was discriminatory
Pendleton v Derbyshire County Council and another

Ms Pendleton was a teacher, married to the headteacher of another school. She had an exemplary record of service.  

Her husband was convicted of making indecent images of children and voyeurism. Ms Pendleton decided that, although she didn’t condone what her husband had done, she wouldn’t leave him; she was a practising Anglican Christian and her marriage vows were important to her. She was eventually dismissed for having ‘...chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism.’ This contravened the ethos of the school. 

She won her unfair dismissal claim because of various failings. But the tribunal dismissed her claim for indirect religion or belief discrimination. While it found that she had a genuine belief that her marriage vow was sacrosanct, and the school had applied a provision, criterion or practice (PCP) (dismissing those who chose not to end a relationship in these circumstances), it held that no particular disadvantage had been shown. She would have been dismissed even if she hadn’t held that religious belief. 

Ms Pendleton appealed and won; there had been indirect discrimination, said the Employment Appeal Tribunal. The tribunal had found that Ms Pendleton had this religious belief in the sanctity of marriage. The PCP that the school applied was intrinsically liable to disadvantage a group that shared that belief, and it had subjected her to a disadvantage. Her belief in the sanctity of marriage vows placed her under an additional burden to those who might have been in the same situation but who didn’t hold that belief. That was a particular disadvantage, given the ‘crisis of conscience’ that she faced. [back to top]

Tighter rules on illegal working 

On 12 July 2016, some provisions of the Immigration Act 2016 will come into force. These include;

-    A new offence of illegal working, and the power to seize illegal workers’ earnings.

-    Widening the offence of knowingly employing an illegal migrant to catch employers who have reasonable cause to believe that the person is an illegal worker. Punishment increases from two years to five years in prison. 

If you haven’t already, make sure that your checks and processes are spot-on. [back to top] 


Destruction of confidential information
Arthur J. Gallagher (UK) Ltd v Skriptchenko and others

An employer has successfully argued that its confidential information stored on computers and electronic devices of its ex-employee and their new employer should be destroyed. 

Insurance brokerage Gallagher’s former employee Mr Skritptchenko, admitted that he had taken a client list from Gallagher. His new employer, Portsoken had used the list to approach hundreds of Gallagher’s clients. An inspection of electronic devices and computer systems confirmed the misuse. 

Important points in the case included:

-    the defendants’ admission that they had taken and misused the confidential information, and they knew that what they were doing was wrong. 
-    the ‘high degree of subterfuge’ involved in the use of Gallagher’s confidential information.
-    a lack of confidence in the defendants. The Judge said “...I am not satisfied that the defendants can be trusted to seek out and delete such material themselves, were they to retain it whether deliberately or inadvertently.”
-    the likelihood of Gallagher being able to establish at trial that there had been a breach of confidence.
-    that it would be the defendants’ IT experts, and not Gallagher’s, that would take delivery of the devices and computers and search for and delete the confidential information. 
-    although the confidential material would be removed from the defendants’ devices, that information wouldn’t be irretrievably lost; copies of imaging would be retained. [back to top]

A question of status
Secretary of State for Justice v Windle and Arada

A person’s working status is important for all sorts of reasons, but it’s something that often remains unexplored until a problem arises. That is until someone claims employee rights or protection and the employer disputes their entitlement. 

In Secretary of State for Justice v Windle and Arada, employment status was critical to the claimants’ race discrimination claims. To be an employee protected by discrimination law, they would need to show that they were in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. 

Both claimants (Dr. Windle was Czech and Mr. Arada born in Algeria) were professional interpreters who worked for Her Majesty’s Courts and Tribunals Services (HMCTS) on a case-by-case basis. They brought race discrimination claims based on their having less favourable terms of service than British interpreters. 

The tribunal held that they were self-employed and outside the scope of discrimination protection. Each assignment was a contract personally to do the work, but there was no mutuality of obligation during those periods in between assignments; in other words, no obligation on HMCTS to offer the claimants work, and no obligation on them to accept work offered.

A key point that reached the Court of Appeal was whether the tribunal was right to have taken account of the fact that there was no mutuality of obligation. The Employment Appeal Tribunal had decided that it was not relevant to whether a person was employed under a ‘contract personally to do the work’. 

But the Court of Appeal restored the original tribunal’s decision, dismissing the claims. Mutuality of obligation isn’t the be all and end all, but it is relevant; a lack of it may influence, or shed light on, the character of the relationship. Where someone supplies services on an assignment-by-assignment basis they tend to have a degree of independence or a lack of subordination in their relationship at work, and that is incompatible with employment status. While each case will turn on its specific facts, consideration of all the circumstances requires that mutuality of obligation (or the lack of it) shouldn’t be ignored. [back to top] 


Inside the minds of parties in dispute

Since 2014, most workers who intend to bring a tribunal claim must first contact ACAS to see if the dispute could be resolved through early conciliation. 

A new research paper (‘Evaluation of Acas conciliation in Employment Tribunal applications 2016’) published by Acas rounds up the effects of this early conciliation. It also gives some interesting insight into the perspectives of those involved in claims. 

Most claimants and most employers who took part in the research said that they took up the offer of early conciliation. More than half of those claimants who didn’t, said that that was because they thought their employer wouldn’t be willing to negotiate. Others (18%) felt that their employer would not engage. And on the employer side, 26% felt that they had no case to answer. A further 24% were not prepared to negotiate.  

When it came to case withdrawals, the main reason was the feeling that they wouldn’t win (no real surprises there). But one-fifth of claimants said they’d withdrawn because tribunal hearing fees were off-putting. It confirms what we’ve always known: that the cost of litigation (particularly since the introduction of fees) is an important piece of the strategic case- planning jigsaw.

You can read the full report here 

[back to top]


What’s a philosophical belief?
Harron v Chief Constable of Dorset Police

It is unlawful to subject someone to discrimination on the ground of their philosophical belief. But how wide can the interpretation of a philosophical belief stretch? Could it include a belief in the proper and efficient use of public money in the public sector?

Possibly. It was an issue in Mr Harron’s case that reached the Employment Appeal Tribunal (EAT). The earlier tribunal had found that this belief didn’t qualify for protection as a philosophical belief; it didn’t meet the criteria set out in an earlier case:

1.    The belief must be genuinely held.
2.     It must be a belief and not an opinion or viewpoint based on the present state of information available.
3.    It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4.    It must attain a certain level of cogency, seriousness, cohesion and importance.
5.     It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. 

(The tribunal had found that numbers 3,4, and 5 weren’t met.)

The EAT allowed the appeal and sent the case back to the tribunal for a fresh decision. It commented that the bar shouldn’t be set too high, but that for a belief to qualify as a philosophical belief, it must at least reach a certain measure of seriousness and cogency. 

While we don’t yet have the final word on this case, it’s a good reminder that there can be more to a person’s strongly held views than meets the eye. [back to top]


And Finally...
Was that a yawn?

Let’s face it, every job has its less interesting parts, whether that’s form-filling, filing, or faffing with spreadsheets. 

But spare a thought for one French worker who is reported to have brought a claim against his employers because his job was too boring. He says that he felt forced to resign after spending years having very little to do. Of course, there will be all sorts of evidential points for the French court to consider and it will be interesting to see what comes of this. 

While having too little work is often seen as preferable to having too much, that’s not to say that there aren’t pressures and strains associated with a role that under-challenges a worker. Monotony, for one.  And feelings of being undervalued  or underutilised do little for job security, motivation, and state of mind. In some cases, there could be serious health consequences. There could also be powerful legal arguments including those around demotion, sidelining, and discrimination. 

Good reasons, then, to keep a close eye on what your employees are, aren’t, and could be, doing. [back to top]