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Key Employment law decisions you may have missed in 2020

Despite the disruption that the impact of Covid-19 caused to the Tribunals and Courts, and employers getting to grips with furlough and the constant changes and amendments to the guidance, there were some important employment law decisions, which you may have missed. Here are a few key cases.

WM Morrison Supermarkets plc v Various Claimants – Employee data, monitoring and vicarious liability

In April 2020, the Supreme Court overturned judgments of the High Court and Court of Appeal by holding that WM Morrison Supermarkets plc was not vicariously liable for unauthorised data protection breaches committed by an employee.

In this case, the employee uploaded payroll data to the internet using personal equipment at home, without authorisation and in a deliberate attempt to harm his employer, thereby breaching the Data Protection Act 1998. The employee also sent the data to three national newspapers. Over 9,000  employees claimed damages for misuse of private information and breach of confidence, against their employer, arguing that Morrisons was vicariously liable.

After going through the High Court and the Court of Appeal, the case was eventually heard by the Supreme Court, who held that Morrisons was not vicariously liable for the employee’s actions. The Supreme Court ruled that the employee was not engaged in furthering his employer’s business when he committed the wrongdoing, which is the test for when vicarious liability arises. Rather, he was pursuing a personal vendetta. His wrongful conduct was not so closely related to his role that it could fairly be regarded as undertaken by him while acting “in the ordinary course of his employment”.

Barclays Bank v Various Claimants – Vicarious liability

In April 2020, the Supreme Court heard another case dealing with vicarious liability. The Supreme Court held that a bank was not vicariously liable for the acts of a self-employed doctor who was alleged to have committed sexual assaults while carrying out medical examinations of the bank’s potential employees. The bank had engaged the medical practitioner to carry out medical examinations on prospective recruits prior to their employment starting. 128 claimants brought claims against the bank, alleging that the doctor had sexually assaulted them during the examinations.  The Supreme Court held that the independent contractor was not in a relationship “akin to employment” with the bank that had engaged him, but that he was carrying on business on his own account. Therefore, the bank could not be vicariously liable for the alleged sexual assaults.

Hextall v Chief Constable of Leicestershire Police – Shared Parental Leave and Sex Discrimination

In February 2020, the Supreme Court refused permission to appeal in this case, meaning that the Court of Appeal’s decision of 2019 remains binding. The Court of Appeal held that it is not direct or indirect sex discrimination, or a breach of the equal pay sex equality clause, for an employer to pay male employees on shared parental leave less than an enhanced rate of maternity pay paid to women on maternity leave. As permission to appeal was refused, the Supreme Court has confirmed the position and has provided certainty to employers. 

Heskett v Secretary of State for Justice – Age Discrimination and justification defence

In November 2020, the Court of Appeal held that the need for the probation service to reduce staff costs in order to balance its books during a public sector pay freeze was a legitimate aim capable of justifying indirect age discrimination. Employers often point to cost considerations when attempting to justify a discriminatory practice. In the case of Cross and others v British Airways plc [2005], it was held that a wish for employers to save money cannot, on its own, amount to a legitimate aim capable of justifying indirect discrimination, but that cost considerations may be taken into account along with other factors. This is often referred to as the ‘costs-plus’ rule.  In this case, the claimant, a probation officer, claimed indirect age discrimination, arguing that the pay policy that had been put in place put those aged under 50 at a significant disadvantage to those aged over 50. The new policy prolonged the length of time it would take an employee to progress through the pay scale compared to the old policy, and therefore the Claimant would earn less than his longer-serving colleagues in the long term. In dismissing the appeal, the Court of Appeal held that if the sole reason for the action is to reduce costs, it cannot be enough to justify something which would otherwise amount to indirect discrimination. However, if the practice is coupled with something else, such as the need to reduce expenditure and balance the books, as was the case here, then it can be justified. Therefore, this judgment confirmed that the ‘costs-plus’ principle is correct.

K v L – unfair dismissal

In September 2020, the EAT held that a teacher was unfairly dismissed for misconduct after he was accused of possessing indecent images of children. The teacher had been charged after the Police found a shared computer at his home with indecent images, but it was unclear who had downloaded those images. The teacher was not prosecuted, but the right to do so in the future was reserved. His employer school took disciplinary action and eventually dismissed the Claimant because of an irretrievable breakdown of trust and confidence, the unacceptable risk to children and the potential for serious reputational damage.  The claimant appealed to the EAT on the basis that the school had not relied on reputational damage as the basis for disciplinary proceedings. The EAT held the dismissal was unfair on two grounds. It held that an employer must give an employee notice of the ground on which dismissal may be sought. Further, it held that it was not reasonable to dismiss the employee on the basis of a concern that the employee might have committed the offence of possessing the images. The employer was only entitled to assess matters on the evidence known, not on the basis of unknown risks.

We expect some further important decisions from the Supreme Court in 2021 that will be provided clarity on issues such as part-time worker status, holiday entitlement and pay and employment status, and IR35.

If you have any questions, please contact Sejal Raja or Ben Dos Santos. In the meantime, we wish you a wonderful Christmas and a happy and heathy 2021 as we look forward to returning to normality.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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