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.

Uber To Take Drivers’ Rights Test Case to the Supreme Court

taxisOnline taxi company Uber has failed to convince the Court of Appeal that drivers who make use of its app are self-employed contractors, rather than ‘workers’ within the meaning of the Employment Rights Act 1996. However, in a rare move, the company has been granted permission to appeal further to the Supreme Court.

Uber has always argued that it acts only as an intermediary between drivers and members of the public who use their services. The company provides booking and payment services through its app and its written contractual terms with drivers make clear that they are independent contractors who deal directly with passengers.

A group of drivers, however, argued successfully before an Employment Tribunal that they are workers, and thus entitled to holiday pay and to the protection of the National Minimum Wage Regulations 1999 (the NMWR). That preliminary decision was later upheld by the Employment Appeal Tribunal on the basis that drivers’ written contracts did not reflect the practical reality of their relationship with Uber and could thus be disregarded.

In dismissing Uber’s challenge to the latter decision by a majority, the Court of Appeal noted that the case concerned the rights of approximately 30,000 Uber drivers who operate in the London area. It found a number of features of Uber’s working arrangements that were inconsistent with drivers having a direct contractual relationship with passengers.

The Court also ruled that, for the purposes of the NMWR, Uber drivers are under a positive obligation to work whilst they have the company’s app switched on. Although they have the right to accept or decline any particular trip offered, Uber retains the ability to disconnect drivers from the app for a period if they turn down fares too frequently. Given the importance of the case, the Court granted Uber permission to appeal against its decision to the Supreme Court.

Substitution Rights of Delivery Drivers Preclude Them from ‘Worker’ Status

The High Court has ruled in a guideline case that a group of food and drink delivery drivers who can substitute others to perform their roles are not ‘workers’. The decision spelt defeat for a trade union which had sought recognition in order to represent the drivers for collective bargaining purposes.

The union argued that the drivers, all of whom performed motorcycle deliveries for the same company, were providing their services personally and thus fell within the definition of ‘worker’ contained within Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

In rejecting the union’s application for recognition in respect of the drivers, however, the Central Arbitration Committee (CAC) found that their ability to substitute others to perform services for the company in their place was fatal to the claim. The right of substitution was genuine, unfettered and operated in practice. In the circumstances, it could not be said that the drivers undertook personally to perform any work, or provide any services, to the company.

In dismissing the union’s challenge to that decision, the Court rejected arguments that the refusal of recognition amounted to a breach of Article 11 of the European Convention on Human Rights, which enshrines everyone’s right to freedom of assembly and to form or join a trade union.

Although it was accepted that the term ‘worker’ embraces some self-employed persons, the Court upheld the CAC’s conclusion that the power of substitution meant that the drivers were not in an employment relationship with the company. Neither domestic nor Strasbourg case law supported the proposition that the right collectively to bargain extends beyond such a relationship. Article 11 was therefore not engaged.

The Firm’s Annual Christmas Party

Christmas TreeThe annual Christmas party gives employers the opportunity to thank members of staff for their contribution over the past year and is a chance for everyone to relax and enjoy the holiday season. However, it is easy to forget that an employer owes its employees certain obligations, even outside work, when the event has been organised by the employer, and that employees’ conduct during it should comply with normal standards and should not breach workplace equal treatment and anti-harassment policies. An employer may be held vicariously liable for the actions of employees at such functions as they are likely to be considered as having occurred ‘in the course of employment’. To defend such a claim, it is important to be able to show that all reasonable steps have been taken to prevent such acts, which includes making staff aware of the appropriate policies and providing adequate training regarding conduct.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones: 

  • When planning any work event, thought should be given to whether it will coincide with the dates of religious festivals;
  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis solely for this purpose if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks and that individual dietary requirements are catered for;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend and that any employees absent on maternity leave or because of long-term sickness are included;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present. You may wish to appoint supervisors to oversee the event, to whom staff can report problems. If such behaviour occurs, act quickly to prevent a re-occurrence. Take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the day after the function understand that absence through over-indulgence is likely to be regarded as a disciplinary rather than a medical matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular religious persuasion find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind employees of its contents in advance of any function.

In a recent vicarious liability case, in which a claim was brought by an employee who was punched in the face by a colleague and suffered serious brain injury some time after a group of employees had left the firm’s Christmas party and adjourned to a nearby hotel, the Court of Appeal ruled that the employer could be held liable for serious injuries inflicted by a senior member of staff on one of the company’s employees during an argument about work matters some hours after the planned Christmas event had finished.

For advice on all matters to do with employee behaviour issues and contracts of employment, contact us.

Criminal Exception to Disability Protection Analysed in Guideline Case

Mental or physical conditions that give rise to a tendency to commit various criminal acts are excluded from the protection that normally applies to disabilities under the Equality Act 2010. An instructive case on point concerned a council worker who walked out of a shop without paying for goods when he was suffering from post-traumatic stress disorder (PTSD).

Shopping streetThe man was apprehended outside the shop having failed to pay for various items. He said that he had not been dishonest in that, as a consequence of his PTSD, he suffered from forgetfulness and memory loss. He had simply wandered out of the shop without remembering to pay. Following an internal disciplinary process, however, he was dismissed for gross misconduct.

It was common ground that his PTSD would normally be regarded as a disability. In rejecting his disability discrimination claim, however, an Employment Tribunal (ET) found that his conduct revealed a tendency to steal. His condition was thus excluded from being a protected disability by Regulation 4(1)(b) of the Equality Act 2010 (Disability) Regulations 2010.

In challenging that decision before the Employment Appeal Tribunal (EAT), the man, who had previously served 17 years as a police officer and had no criminal record, insisted that he was not a shoplifter and that the isolated incident could not form a reasonable basis for a finding that he had a tendency to steal.

Dismissing his appeal, however, the EAT noted that he had been stopped by security staff outside the shop and, after police were called, he had accepted a penalty notice. He had paid a £90 fine as an alternative to prosecution and had signed a statement in which he made an unequivocal admission of theft. The ET was entitled to find on the evidence that he had been dishonest and that the employer had established that the exclusion applied.