Ex-Employee Threatening to Speak to the Press? This is What You Should Do!

Breakdowns in workplace relationships are always painful and can be particularly so when they are revealed in the press. However, as a High Court case showed, judges are always on hand to take emergency steps to ensure that current and former staff members abide by confidentiality clauses in their employment contracts.

The case concerned a professional firm whose director of business development and marketing had been dismissed on six months’ notice. His contract included a clause which forbade him from disclosing the firm’s confidential information, even after leaving its employ. On top of his contractual entitlements, he had been paid a substantial ex gratia sum by way of reminder of his obligations.

After receiving his final termination payment, the man expressed his dissatisfaction, saying that, given his age, his dismissal had effectively ended his career. He expressed an intention to speak to the press about the firm’s prevailing culture, particularly in relation to women in the workplace. He said that he would be demonstrating his impression of that culture by reference to three particular incidents.

In those circumstances, the firm made an emergency application to the Court, before proceedings had been formally issued. The Court was content to deal with the matter in the man’s absence on the basis that all reasonable steps had been taken to notify him of the application.

In granting an interim injunction against the man, the Court found it more likely than not that the firm would succeed in establishing at trial that there was a real risk that he would disclose information to the press in breach of the confidentiality clause. The firm’s grievance procedures were confidential and individual former colleagues to whom the man might refer in press interviews also had an expectation of privacy.

The Court acknowledged that there is a legitimate public interest in employers meeting their social and moral duties towards their staff. However, the existence of such an interest did not justify the indiscriminate disclosure of sensitive information which others have a legitimate interest in keeping confidential. A general desire to speak about the firm’s culture was not enough to justify such disclosures.

The interim order would be kept under review pending the trial of the action, and its terms, which referred to 11 specific categories of information, were designed to ensure the minimum necessary interference with the man’s human right to freedom of expression. He was also ordered to disclose to the firm the identity of journalists, media organisations or others to whom he had spoken with a view to publication and the nature of any information he had imparted to them.

Revised Code of Practice on Preventing Illegal Working

Following changes introduced by the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, the Home Office has issued a revised ‘Code of practice on preventing illegal working: Civil penalty scheme for employers’. This sets out the document checks prescribed by the Home Office that an employer should make to ensure someone has the right to work, or continue working, in the UK and the factors to be considered when determining the amount of the civil penalty payable for a breach of the Immigration, Asylum and Nationality Act 2006.

The revised code of practice takes into account the introduction of the online ‘Employer Checking Service’ whereby, from 28 January 2019, employers have had the option to conduct an online right to work check, which will establish a statutory excuse against a civil penalty in the event that the employee is found to be working illegally. However, not all employees or potential employees will have an immigration status that can be checked at this stage, in which case a manual check must be completed. Follow-up checks for those whose right to work is time limited can also be carried out online or manually.

The code of practice applies when calculating the penalty amount in respect of any employment which commenced on or after 29 February 2008 where the breach of Section 15 of the Act occurred on or after 28 January 2019, or when determining liability where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28 January 2019 in order to establish or retain a statutory excuse.

Employers are reminded that an employer who is found to have knowingly employed a person who is not allowed to work in the UK, or is considered to have had reasonable cause to believe that the employee was disqualified from employment because of their immigration status, can face criminal prosecution under Section 21 of the Act and, if convicted, up to five years’ imprisonment and/or an unlimited fine.

30,000 Supermarket Workers Score Lynchpin Victory in Equal Pay Dispute

Women and men who do comparable jobs for the same employer have for decades been entitled to equal pay – but the basis on which such comparisons can be made has been a perennial subject of legal debate. The Court of Appeal gave authoritative guidance on the issue in a case concerning about 30,000 supermarket workers.

Car SupermarketThe retail workers, mainly women, argued that their roles could be validly compared with those performed by mainly male workers employed in the supermarket chain’s distribution depots. The chain, however, argued that its distribution and retail sectors were fundamentally different, having evolved separately over time. The physical environment of its depots was very different from that of its stores and the two categories of workers had profoundly different functions and skill sets.

Lawyers representing the non-unionised retail workers argued that the terms and conditions of their unionised distribution colleagues were superior to theirs, although their work was of equal value. Following a preliminary hearing, an Employment Tribunal (ET) found that the retail workers were entitled to compare themselves with their distribution colleagues for the purposes of the Equality Act 2010. That decision was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing the chain’s challenge to that outcome, the Court disagreed with aspects of the ET’s reasoning, but found that it had reached the correct result. In posing the question whether there were common terms and conditions generally as between the retail and distribution workers, it had conducted wholly the wrong exercise. The issue for the ET to decide was whether broadly common terms applied to retail and distribution workers, regardless of where they worked. Given that no retail workers were in fact employed in depots, or distribution workers in stores, that question was necessarily hypothetical.

Detailed argument and evidence going to minute comparisons between the terms which applied to the two sets of workers were thus irrelevant and the preliminary issue could have been resolved on the straightforward basis that the chain’s terms for retail and distribution workers both applied wherever they worked. The Court noted that it would be no credit to the law if the kind of elaborate and confusing exercise the ET had been encouraged to undertake was required in order to establish whether the statutory comparison could be made.

The retail workers’ claims were primarily brought under the Equality Act but, if they prove well-founded, some of them will be entitled to arrears of pay going back to before the Act came into force. Such claims would be assessed under the Equal Pay Act 1970. Issues as to whether their work is of equal value to that of their distribution colleagues and, if so, the extent of any differential between their respective pay and terms of employment, remain to be resolved by an ET.

Employees Plotting Your Downfall on Your Time? See a Lawyer Today!

Suspicions that your employees are using your confidential information and time that you have paid for to plot their next career move are sadly often justified. However, as a High Court case showed, specialist solicitors can help you protect your business from such unlawful conduct.

The case concerned a price reporting agency whose business development manager resigned and swiftly established a new venture in a similar field. The agency launched proceedings, accusing the man of, amongst other things, breaching restrictive covenants in his employment contract.

In upholding the agency’s claim, the Court noted that the man had very closely modelled his venture’s services and marketing material on those of his former employer. The two businesses provided price reports on similar products and were properly viewed as competitors.

There was ample evidence that, since his departure, the man had solicited or dealt with the agency’s clients in breach of covenant. The agency had a legitimate interest in protecting its confidential information, clients and other business connections and the duration of the covenants – nine months following the end of the man’s notice period – was no longer than was reasonably necessary.

The man had also breached his duty of fidelity in devoting an immense amount of his time, whilst still employed by the agency, to planning and obtaining investment in his venture. He had retained confidential documents belonging to the agency and had arranged meetings with its clients, promoting his services to them, prior to his resignation. His new business had thereby been able to hit the ground running.

The Court rejected the man’s plea that the company had breached his contract by examining his emails, including messages of a private nature, whilst he was on garden leave. The agency’s employee handbook conferred on it a right to access and inspect messages sent by employees on its internal IT systems. Even if the agency had breached the man’s privacy rights, that was not so serious as to amount to a repudiatory breach of his employment contract.

In those circumstances, the Court issued an injunction requiring the man to honour the contractual restrictions on his post-termination activities. The agency was also seeking compensation in respect of damage caused to its business by his unlawful conduct, but that matter was adjourned to a further hearing.

The Rights and Wrongs of Disclosing Criminal Records – Supreme Court Ruling

There is a clear public interest in those who work with children or vulnerable adults being required to submit to criminal record checks – but how old, or minor, do their convictions have to be in order to be exempt from disclosure? The Supreme Court addressed that burning issue in a guideline case.

The case concerned four individuals who had all been convicted or received cautions or reprimands in respect of offences ranging from carrying children in a car without a seatbelt and theft of a sandwich to assault occasioning actual bodily harm and sexual assaults arising out of childhood experimentation. The offences were of some antiquity, all but one of them dating back to the 1980s or 1990s, and some of them had been committed when the offender was very young.

By virtue of legislation designed to promote the rehabilitation of offenders, all of the convictions and cautions were spent and there was no general obligation to disclose them to potential employers. However, as the four either worked with, or wished to work with, children or vulnerable adults, employers were required to obtain extended criminal record certificates, on which their past misdemeanours would be disclosed.

The four argued before lower courts, all but one of them successfully, that the statutory disclosure schemes were incompatible with their right to respect for their privacy, enshrined in Article 8 of the European Convention on Human Rights. That was because of the breadth of the categories of offence that were required to be disclosed. The schemes were also ruled disproportionate in failing to distinguish between convictions and cautions of varying degrees of relevance.

The Supreme Court conducted a comprehensive review of the relevant law after the Home Office, and the one complainant whose case failed in the lower courts, appealed. The Court noted that the schemes derived from the Rehabilitation of Offenders Act 1974 and the Police Act 1997, both of which created highly prescriptive and mandatory disclosure regimes. On that basis, the schemes passed the legality test and were in accordance with the law for the purposes of Article 8.

Turning to the issue of proportionality, the Court found that the schemes were not indiscriminate in nature but were carefully devised to achieve a balance between the competing public interests of rehabilitating offenders and safeguarding children and vulnerable adults. It was unfeasible to require a system of individual assessments and bright line rules were required to render the schemes practicable.

The approach of the schemes in requiring disclosure by reference to pre-defined categories of offending was justified. There was little evidence that employers could not be trusted to take an objective view and final decisions as to the relevance or otherwise of prospective employees’ convictions was properly left to them.

The Court, however, found that the schemes lacked proportionality in two respects: a rule concerning those with multiple convictions did not achieve the purpose of indicating a propensity to offend and applied irrespective of the nature, similarity, number or time intervals of offences. The schemes also failed to take sufficient account of the fact that warnings and reprimands issued to younger offenders are instructive and specifically designed to avoid damaging effects later in life through disclosure. The Court disposed of the appeals, and made limited declarations of incompatibility, in accordance with its ruling on the principles raised by the case.

Consultation on Boosting Protection for Pregnant Women and New Parents Returning to Work

The Government has published a consultation paper on its plans to enhance protection from redundancy for pregnant women and new parents returning to work. This follows a recommendation in the 2017 Taylor Review of Modern Working Practices and conclusions of the Women and Equalities Select Committee put forward in its report on pregnancy and maternity discrimination.

The consultation document explains the current law on redundancy protection for pregnant women and new mothers who are on maternity leave, as afforded under the Maternity and Paternity Leave etc. Regulations 1999, and puts forward a proposal that this should be extended so that it continues for up to six months after their return to work.

The consultation also seeks views on affording the same protection to parents returning from adoption leave or shared parental leave.

The consultation closes at 11.45pm on 5 April 2019.

Live-In Agency Carer Developed Employment Status Over Time

As relationships and working arrangements change, self-employment can morph into an employment relationship over time. Exactly that happened in the case of a live-in agency carer who worked 12 hours a day for the same client for over three years.

The agency for which the woman worked generally provided carers on a rota basis but an elderly man’s nephew (the client) wanted someone who would commit to a live-in placement, lasting at least six months, to provide care as and when required. In the event she stayed for years and, after her services were dispensed with, she lodged a complaint with an Employment Tribunal (ET).

Following a preliminary hearing, the ET found that the woman was an employee. The fact that she had paid her own Income Tax and National Insurance Contributions was not decisive. The client had described himself as her employer in the termination letter and other correspondence. She had lived in throughout the three-year period and, albeit informally, had received holiday pay. For most of the period she was paid by direct debit, only invoicing for overtime.

The agency laid on replacement carers when she was on holiday, but that did not mean that she had herself arranged such substitutions. The level of control that the client exerted over her had led to the development of a master/servant relationship. The mutuality of obligation required for an employment relationship was present and there was nothing to indicate that she had been running her own business.

In rejecting the client’s challenge to that ruling, the Employment Appeal Tribunal (EAT) noted that he had perhaps not intended his use of the word ‘employee’ in correspondence to have legal effect. However, he had indicated in trenchant terms his reluctance to accept independent action on the woman’s part.

The gradually decreasing level of oversight to which her work was subjected by the client was a mark of his increasing trust in her and did not affect her employment status. The ET’s conclusion was amply supported by findings of fact and the client’s appeal was based on over-analysis of the reasons it gave.

Is Your Confidential Information at Risk? Legal Advice Is the Best Protection!

Confidential information is the very lifeblood of many businesses and, if it is removed without authority by untrustworthy employees, it can be very hard to retrieve. As one case showed, however, judges have a range of emergency powers that can be used to ensure that the trail does not go cold.

A food wholesaling company launched proceedings after two of its senior employees resigned. They were alleged to have taken up employment with a competitor, one of them before the expiry of his notice period. It was also claimed that they had taken a great deal of the company’s confidential customer and pricing information with them and that, prior to their departure, they had acted fraudulently in diverting secret profits into their own pockets.

The company sought a pre-trial order requiring the former employees to deliver up any confidential information in their possession on their doorsteps. Concerned that the information could be deleted or destroyed if the men got wind of the proceedings, thus defeating the objective of the order, the company unusually did not give them prior notice of the application.

In ruling on the matter, the High Court noted that it had necessarily heard only one side of the case and that to grant such an order without notice was exceptional. However, there was clear evidence that the former employees had wrongfully taken copies of confidential information that the company described as its crown jewels.

There was also clear evidence that both men had acted fraudulently prior to their resignations and were either competing or preparing to compete with the company in breach of restrictive covenants in their employment contracts. There was good evidence that the potential damage to the company were the information to fall into the hands of a competitor would be very serious.

The men were likely to still have digital copies of the confidential information in their possession and the company had established a sufficient possibility of destruction to justify the grant of a doorstep delivery-up order. The order would not require the men to allow access to their homes or to submit to a search of their premises. They would also only be required to hand over electronic data, rather than hard copy documents, and the company and its lawyers would not be entitled to see the information retrieved without a further court order.

Ill-Health Retirement, Pension Rights and Disability – Supreme Court Ruling

If an employee has to move to part-time work due to his or her disabilities, how does that affect the calculation of his or her pension rights on taking ill-health retirement? The Supreme Court considered that issue in a guideline discrimination case.

The employee concerned worked for a university for 13 years. He suffered from Tourette’s syndrome and other conditions that satisfied the definition of disability under Section 6 of the Equality Act 2010. As a result of his disability, he had to work part time for the final three years of his employment. When he took ill-health retirement at the age of 38, he was working half his full-time hours and was paid commensurately. On retirement, he started to receive his pension.

There was no dispute as to the correct calculation of his basic pension. However, he was also entitled to a pension enhancement, the amount of which was calculated on the basis of his final, part-time, salary as at the date of his retirement. He argued that that approach amounted to unfavourable treatment because of something arising in consequence of his disabilities, namely his inability to work full time. Although that argument initially succeeded before an Employment Tribunal, it fell on fallow ground before the Employment Appeal Tribunal and the Court of Appeal.

In dismissing his appeal against the latter ruling, the Supreme Court noted that there was little to be gained by seeking to distinguish the word ‘unfavourable’, in Section 15 of the Act, and concepts such as ‘disadvantage’ or ‘detriment’ found elsewhere in its provisions. The fundamental objection to the employee’s case was that there was nothing intrinsically unfavourable or disadvantageous about the award of the ill-health pension.

The only basis on which the man was entitled to such a pension was by reason of his disability. Had he been able to work full time, the consequence would have been not an enhanced entitlement but no immediate right to a pension at all. In those circumstances, the award could in no sense be viewed as unfavourable.

Gross Misconduct – A Forbidden Act May Not Be Enough to Justify Dismissal

When considering allegations of workplace gross misconduct, it is often not enough simply to establish that a forbidden act occurred, without going on to discern the reasons for it and whether those reasons are linked to a disability. A tribunal made that point in finding that a diabetic lorry driver was unfairly dismissed after he was caught on CCTV urinating in a goods yard.

lorryThe driver said that, as a result of his condition, he had been caught short and had tried to find a discreet part of the yard in which to urinate. He expressed regret but was dismissed after the CCTV footage revealed what he had done. The manager who investigated the matter conceded that he had concluded that the driver was guilty of the act in question, but had gone no further.

In upholding the driver’s unfair dismissal claim, an Employment Tribunal (ET) found that the investigation of the incident was neither impartial nor fair. The inadequacy of the manager’s inquiries had not been cured by the subsequent disciplinary process and the employer, a supermarket chain, had not held a genuine and reasonable belief that the driver was guilty of the misconduct alleged. His disability discrimination claim also succeeded on the basis that he had told his employer of his disability, a recognised symptom of which was an uncontrollable urge to urinate. The ET directed the driver’s reinstatement in his former role.

In challenging the ET’s decision, the employer argued that the CCTV footage clearly showed the driver urinating on pallets used for the delivery of customers’ shopping. The ET’s failure to find as much led to fatally flawed reasoning throughout its ruling and a perverse conclusion. The ET was also said to have been guilty of substituting its own views of the driver’s misconduct for those of the employer.

In dismissing the appeal, however, the Employment Appeal Tribunal rejected the employer’s plea that the evidence that the driver had urinated on the pallets was incontrovertible. The ET’s finding that the operative cause of the act of urination was his disability was not challenged and there was simply no basis for the perversity and substitution mindset arguments. The ET’s conclusion that trust and confidence between the employer and the driver was capable of being restored, thus enabling his reinstatement, was also unimpeachable.