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This judgment requires a re-evaluation of the UK’s statutory protections for breastfeeding mothers and the case law interpreting those protections. As a consequence, advice to employers on the extent of the risk assessment duties to breastfeeding mothers should be revisited.
Direct discrimination under the Equality Act 2010
The Equality Act 2010 (EqA) recognises that treating a woman less favourably because she is breastfeeding constitutes direct sex discrimination (section 13(6)(a)). However, the EqA expressly disapplies that protection in the workplace (section 13(7)). That restriction surely cannot now survive and ought either to be repealed entirely or at least amended to correspond with Otero Ramos. Until then, section 13(7) can no longer provide solace to employers.
Requirement to conduct a risk assessment: proactive or reactive?
Perhaps of greater practical significance, the Otero Ramos judgment suggests domestic case law is wrong about when an obligation arises to conduct an Article 4(1) risk assessment.
Article 4(1) specifies that an employer must conduct an assessment “For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I”. The Annex includes some industry-specific risks and others of general application, for example:
Handling of loads entailing risks.
Movements and postures.
Mental and physical fatigue.
Article 4(1) must be read in the light of guidelines produced by the European Commission under Article 3. In Otero Ramos, the court confirmed the guidelines must be taken into account in interpreting Article 4(1), as they serve as the basis for the assessment referred to in that Article.
As the court notes, the guidelines describe a risk assessment as “a systematic examination of all aspects of work in order to identify the probable causes of injuries or damage and to establish how these causes can be contained in order to eliminate or reduce risks.” They set out three required phases for an assessment to be PWD compliant:
Identification of hazards.
Identification of worker categories (that is, pregnant workers, those who have given birth and those who are breastfeeding).
Risk assessment in both qualitative and quantitative terms.
The guidelines are clear in emphasising the employer’s “obligation” to conduct a risk assessment for all female workers who fulfil the criteria laid down in Article 2 of the PWD. This includes breastfeeding workers. Moreover, as the court recognised, the guidelines emphasise the requirements for the risk assessment to be individualised, taking specific account of the worker in question, and to be regularly reviewed.
Article 4(1) is transposed into UK law by regulation 16(1) of the Management of Health and Safety at Work Regulations 1999 (SI 3242/1999). That regulation only requires an Article 4(1) risk assessment for a breastfeeding worker where the work is of a kind which “could” involve risk to the mother or her baby. In Madarassy v Nomura International Ltd  EWCA Civ 33, the Court of Appeal held there was no obligation under regulation 16(1) to conduct a risk assessment for a new or expectant mother absent evidence of potential risk to health and safety. This decision was then followed by the EAT in O’Neill v Buckinghamshire County Council  IRLR 384. Surprisingly, the guidelines drawn up under Article 3 of the PWD are not mentioned in either judgment (nor in the EAT judgment in Madarassy UKEAT/0326/03).
The ECJ in Otero Ramos appears to take a more expansive view of the Article 4(1) requirement, seeing it as a proactive obligation. There is no suggestion it is only activated where risk is identified. This is unsurprising in the light of the emphasis the guidelines give to the obligation.
The court’s approach to the evidence needed to shift the burden of proof under Article 19 of the Equal Treatment Directive (2006/54/EC) is instructive. Ms Otero Ramos’s hospital produced a statement from the HR director that an A&E nurse was on a list of risk-free jobs, and a report from a doctor who examined Ms Otero Ramos and (without providing reasons) declared her fit to carry out the tasks relating to her work. The hospital’s risk assessment went no further than that. By way of contrast, Ms Otero Ramos’s line manager (the hospital’s senior A&E consultant) wrote a letter identifying a variety of risks to a breastfeeding worker and her child. The court held that letter constituted evidence capable of showing the risk assessment did not take account of Ms Otero Ramos’s individual situation and thus failed to comply with Article 4(1). The court made no mention of the letter satisfying the burden by showing potential risk to activate the obligation to carry out an individualised risk assessment, as per domestic authority. That the obligation was activated was taken as read, the court concentrating on failure to comply with the specific requirements of the obligation.
What to advise employers
As a consequence of Otero Ramos, employers who have previously awaited presentation of evidence of potential risk before carrying out an Article 4(1) risk assessment should be advised to adopt a proactive approach or risk a direct discrimination claim. The assessment should:
Take the individual worker’s personal situation into account.
Consider any relevant medical reports provided.
Be kept under regular review.
In terms of what to look for, there is no better reference than the risk assessment tables produced as part of the European Commission’s guidelines.
Last month’s revelations about the Presidents Club fundraising dinner, at which female hostesses were reportedly harassed by male guests, has raised questions about the third party harassment provisions under the Equality Act 2010 (EqA 2010). While the relevant provisions were repealed from 1 October 2013, there has been some suggestion that they should be re-enacted. Until Parliament intervenes, what protection is currently available to employees and which steps should employers consider taking?
Position before EqA 2010
Until 2003, it was considered to be the position that where an employer could have prevented an act of discrimination committed by a third party against its employees, the employer would be liable for discrimination. In Burton v De Vere Hotels Ltd  ICR 937, a hotel was held to have discriminated against its waitressing staff where they were subjected to racial harassment in the form of racist “jokes” by the comedian Bernard Manning and insulting conduct by guests at the function.
However, this authority was held to be wrongly decided in Pearce v Governing Body of Mayfield Secondary School  UKHL 34: the House of Lords held that the failure to take reasonable steps to prevent an employee from racial or sexist abuse was discrimination only where the reason for that failure to act amounted to discrimination. This was subsequently doubted in Equal Opportunities Commission v Secretary of State for Trade and Industry  IRLR 327, in which the High Court held that aspects of Pearce were not compatible with the Equal Treatment Directive.
Following this, the government amended the harassment provisions in the Sex Discrimination Act 1975 so that employers could be liable for third party sex harassment. The other strands of discrimination legislation were not amended. However, the EAT held in Sheffield City Council v Norouzi  IRLR 897 that public sector employers could find themselves liable for third party harassment, on grounds other than sex, by means of application of EU law. Consequently, statutory protection for employees was somewhat asymmetric.
EqA 2010 and third party harassment
The EqA 2010 extended statutory protection from third party harassment to all the protected characteristics, except for marriage/civil partnership and pregnancy/maternity (section 40(2)(a)). There remained high hurdles for an employee to overcome. An employer was not liable unless it knew that the employee had already been harassed by a third party on at least two occasions, in circumstances where the third party could be a different person on each occasion (section 40(3)). Arguably, the actual knowledge of an employer was required: the statutory language could be contrasted with other provisions under the EqA 2010 where constructive knowledge is permissible. Moreover, an employer was not liable where it took reasonably practicable steps to prevent the harassment (section 40(2)(b)).
The third party harassment provisions were repealed with effect from 1 October 2013 by the Enterprise and Regulatory Reform Act 2013, as part of the coalition government’s “regulatory bonfire”. However, there is growing pressure on the government to re-enact the provisions in some form following the Presidents Club scandal, including a petition which has been signed by more than 100,000 people. The Fawcett Society has also recommended reducing the knowledge requirement to one incident only and extending protection to individuals with the protected characteristics of marriage/civil partnership and pregnancy/maternity.
What protection remains available to employees?
A third party harassment claim could be brought against an employer directly under section 26 of the EqA 2010. A loose causal link is required: harassment can occur where conduct is “related to”, rather than “on grounds of”, a protected characteristic. An employee could argue that an employer’s inaction is itself unwanted conduct related to their protected characteristic which violated their dignity or created a proscribed environment. There would be no need to show that the employer knew of any prior harassment by a third party.
However, it may be difficult to show that an employer’s inaction in the face of third party harassment actively “created” a hostile environment. Furthermore, in Norouzi, the EAT commented that there are some environments, such as prisons, care homes or schools, where employees may be subject to harassment which is a “hazard of the job”. In such cases, the employer should not be found liable unless the tribunal identifies what steps could have been taken by the employer to prevent the harassment. Therefore, a tribunal is obliged to consider the wider circumstances, such as the type of work undertaken by the employee and nature of their clients or service users.
Employees should also take care where they have signed a non-disclosure agreement (NDA) with respect to the nature of their work or conduct by third parties. Usually, this does not prevent an employee from making disclosures as required by law, HMRC or any regulatory body. However, bringing a claim in a tribunal may amount to a breach of confidentiality in respect of which an employer may claim damages. That said, an employer is unlikely to seek to enforce an NDA if the information is already in the public domain. This stance has been taken by the staffing agency which hired the hostesses for the Presidents Club dinner: the hostesses have been informed that they may disregard the NDAs they signed in order to report any alleged criminal behaviour to the police.
Employers should continue to ensure they take reasonable steps to prevent any harassment by third parties. The EHRC Employment Statutory Code of Practice recommends the following steps, depending on the size and resources of an employer:
A harassment policy.
A public notice reminding third parties that harassment is unlawful.
An express term in contracts with third parties requiring them to adhere to the harassment policy.
A suitable reporting and investigation mechanism.
Harassment of third parties by employees
Equally, employers should take reasonable steps to prevent any harassment by employees of third parties. For example, there have been instances of delivery drivers allegedly using personal data of customers to send unsolicited messages. A harassment claim could be brought against the service provider under section 29(3) of the EqA 2010, as anything done by an employee in the course of their employment is treated as having been done by the employer, regardless of whether the employer knew or approved of the act (section 109(1) and (3)). The phrase “in the course of employment” is given its ordinary meaning, rather than the meaning used to establish vicarious liability in tort. Consequently, the determination of whether an employee’s act was done in the course of their employment is highly dependent on the facts.
Moreover, as the implementation of the General Data Protection Regulation ((EU) 2016/679) approaches, employers must take steps to ensure a reasonable level of protection for personal data of customers, which includes ensuring that such data is not misused by its employees. A failure to do so could result in a complaint to the Information Commissioner’s Office or fines. Consequently, an employer should consider taking similar steps as outlined above to prevent harassment of third parties by its employees.
Two recent decisions of the European Court of Human Rights (ECtHR) have considered how the privacy rights of employees can be protected during covert disciplinary investigations. Here we explain those cases and the guidance that can be taken from them.
Barbulescu v Romania  IRLR 1032 considered the investigation of an employee’s personal emails. Mr Barbulescu’s employment contract forbade any personal use of the employer’s computer system. Contrary to this, Mr Barbulescu had used a Yahoo Messenger account intended for client communications for personal messages. When asked about this, he lied and stated that he had used Yahoo Messenger only for work purposes. The employer then produced a 45 page transcript of messages sent to his brother and fiancée, including messages of an intimate nature and messages addressing medical issues. That transcript was read by numerous colleagues involved in the disciplinary process.
In September 2017, the Grand Chamber of the ECtHR held that this was disproportionate and a breach of Mr Barbulescu’s Article 8 right to privacy.
The ECtHR confirmed that “private life” within the meaning of Article 8 is a broad term, not susceptible of exhaustive definition, and held that the concept of private life may include professional or business activities and activities taking place in public. It expressly ruled that emails sent from work are protected under Article 8, as well as information derived from monitoring an employee’s internet use.
Stating that “proportionality and procedural guarantees against arbitrariness are essential”, the court set out factors to be taken into account when reviewing measures taken by employers:
Whether the employee has been notified of the possibility of monitoring and its nature.
The extent of monitoring and the degree of intrusion into the employee’s privacy.
Whether the employer has provided legitimate reasons to justify monitoring and accessing the content of communications, with the latter requiring more weighty justification as it is more intrusive.
Whether less intrusive methods could have been used.
The consequences of monitoring for the employee and the use made by the employer of the results of monitoring, in particular whether the results were used to achieve the declared aim.
Whether the employee was provided with sufficient safeguards, which should ensure that the employer cannot access the actual content of communications unless the employee has been notified in advance.
In Lopez Ribalda v Spain, heard by the ECtHR in December 2017, supermarket cashiers were suspected of theft. The employer set up cameras which it told the employees about, and additionally put in place hidden cameras. The camera footage showed the cashiers stealing and was relied on by the employer first to dismiss them, and later as evidence to justify their dismissals to the Spanish employment tribunal. The employees contended that their Article 8 right to a private life was infringed by both the video surveillance itself and its use by the employer in deciding to dismiss them.
The ECtHR readily found that covert video surveillance was a “considerable intrusion” into the employees’ private lives, as it was a recorded and reproducible documentation of their conduct at work which, being contractually obliged to go to work, they could not evade.
The ECtHR took into account that the data obtained from the cameras entailed the processing of personal data, thus engaging data protection legislation and the requirement to obtain consent. The fact that the employees had a right to be informed of the existence and purpose of the video surveillance under the data protection legislation meant that they also had a reasonable expectation of privacy for the purposes of Article 8.
In ruling that covert surveillance was not a proportionate means of protecting the employer’s legitimate aim of preventing theft, the ECtHR took several factors into account:
All staff were subject to the surveillance and not merely those most likely to be responsible for the thefts.
The surveillance took place over a prolonged period;
The surveillance had not been carried out in accordance with the data protection principles.
Less intrusive means were available, as the aim of preventing further thefts could still have been achieved if the employer had informed the employees in advance of the installation of cameras and of their personal data rights.
Implications for employers
Neither decision imposes a ban on monitoring or even covert surveillance. Although investigating misconduct is a legitimate aim, both cases show clearly that even criminal misconduct will not justify excessively intrusive investigations.
Good policies are, as ever, the starting point. Policies should address internet usage, potential monitoring, any surveillance measures and the employee’s rights. Employers who have CCTV or other recording systems should have a clear policy explaining the nature and extent of recordings and the employee’s rights. It is always helpful to provide employees with a point of contact for any queries.
Note that, once the GDPR is introduced on 25 May 2018, employers will not be able to rely on blanket contractual consents to the processing of personal data. Instead, employers will have to justify processing on other grounds, including the legitimate interests of the business.
There are several points to be extracted from these judgments for employers embarking on an investigation in relation to suspected misconduct:
Each case needs to be considered on its own merits. Note that the GDPR requires appropriate organizational methods to ensure that the data protection principles are followed. Employers should develop protocols for monitoring and surveillance measures, ensure managers involved are recording steps taken and provide for senior managerial oversight.
Employers should be wary of proceeding to monitor or investigate without having a clear reasonable basis for suspecting misconduct.
When considering the scope of an investigation, the employer should determine the aims of the investigation and what steps need to be taken to support those aims. There may be significant differences in the scope and approach of:
investigations into identifying those responsible for ongoing conduct;
investigations to establish past conduct by an already identified employee; and
investigations into how the conduct of numerous employees can be improved or redirected in the future.
Monitoring should be restricted to only those employees in relation to whom reasonable suspicion arises. Record the reasons why each employee is suspected before embarking on any investigation or surveillance.
Employers should consider the impact of monitoring from the employee’s perspective and the possibility that it could intrude on their privacy.
Consider whether there are less intrusive steps that could be taken. The more intrusive the steps to be taken, the more those reasons need to be compelling.
Employers must follow the data protection principles in handling the evidence obtained from investigations. Personal data should be stored in a secure manner, and only viewed and shared to the extent necessary for the identified purpose of the investigation. The GDPR requires a record to be kept of how data has been processed.
Evidence collected from monitoring or surveillance should only be used for its intended purpose and should be deleted or destroyed once that purpose has expired.
Further guidance can be obtained from the Information Commissioner’s Employment practices code.
Brexit. The government has published two sets of draft regulations which illustrate how the powers under clause 7 of the European Union (Withdrawal) Bill may be used to correct employment law post-Brexit.
2017 has seen a series of cases concerning limb (b) worker status arising from the ‘gig economy’. Putative workers have claimed entitlements to be paid the minimum wage, holiday pay and so on, on the basis that they meet the definition of a ‘limb (b)’ worker, viz. a person working under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” (Section 230(3), Employment Rights Act 1996. See the similar definitions in the Working Time Regulations 1998, the National Minimum Wage Act 1998, Employment Relations Act 1999 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.)
Both cases concern bicycle deliveries. In Dewhurst v CitySprint UK Ltd ET/2202512/2016 the Employment Tribunal (ET) heard a claim by a bicycle courier who claimed that she was a limb (b) worker and was therefore entitled to two days’ holiday pay in respect of leave taken but not paid for. In IWGB v RooFoods Ltd (t/a Deliveroo TUR1/985(2016)) the Central Arbitration Committee (CAC) determined an application by a union for recognition for collective bargaining purposes. Deliveroo maintained that its delivery bikers were neither employees nor limb (b) workers, so there could be no recognition.
Both contracts dealt with substitution, but the manner in which they were treated differed significantly. First, the contract in CitySprint provided “The Contractor may at his own cost provide a substitute to perform any particular Job.”
However, the substitute had to satisfy a variety of criteria such that CitySprint would have been willing to enter into a contract with them. The courier was also required to give notice in writing in advance.
In Deliveroo, the contract provided “Deliveroo recognises that there may be circumstances in which you may wish to engage others to provide the Services. Deliveroo is not prescriptive about this and you there have the right, without the need to obtain Deliveroo’s prior approval, to arrange for another courier to provide the Services (in whole or in part) on your behalf.”
In contrast to the CitySprint contract, the Deliveroo contract merely provided that the substitute could not be somebody with whom Deliveroo had previously terminated an agreement. Responsibility for ensuring that the substitute was adequately trained remained with the original courier.
In CitySprint, the ET found that, due to the manner in which courier jobs were allocated and accepted, the possibility of substituting could only arise once the courier was on circuit and available to accept jobs. There was therefore an internally contradictory aspect to the substitution clause, as there was no realistic opportunity to arrange a substitute. While couriers did not have an unfettered right to cancel jobs once accepted, it made no practical sense for a courier to attempt to arrange a substitute, rather than contact their controller and ask to return the job. The reality of the situation was such that couriers could not substitute.
In Deliveroo, the CAC perceived a different reality, which led it to find that there was a genuine right to substitute, but also emphasised different points in its analysis. A significant feature of the reality of the courier’s experience was that they could refuse to accept jobs and could cancel jobs once accepted, without incurring any penalty. For that reason, there was no practical reason why they would ever wish to substitute (the ET called this the ‘substitution conundrum’). Nevertheless, the CAC found that the right was a real one, for which there was evidence of at least one genuine substitution. The fact that practicalities rendered the right superfluous did not render the right a sham.
The significant difference between the cases seems to be that, although the right was impractical to exercise in both, in Deliveroo, there was at least some convincing evidential foundation for the use of the right.
A further difference
There is a further intriguing aspect to Deliveroo, dealt with only briefly in the decision of the CAC. The CAC stated that the fact that Deliveroo, by permitting substitution, might be opening itself to prosecution for failure to comply with food hygiene legislation, did not alter the reality of the right to substitute. Regulatory requirements were not relevant to the construction of a contractual right.
Contrast this with the finding of the Employment Appeal Tribunal in Uber BV that legislative regulatory requirements which, in effect, required personal service by cab drivers, were not irrelevant to the construction of the contractual relationship between the parties.
Regrettably, the CAC only dealt with this issue in passing, and resolution of the possible conflict between these two decisions will have to wait for a future occasion.
Does an employer have a claim in property to the emails, or the content of emails, that were sent by employees from their employer’s email accounts?
The High Court recently considered this question in the context of an application for interim relief in a team move case. The draft order sought by the claimants (Capita and another) included a provision requiring the ex-employee defendants to forward to the claimants’ solicitors “copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)” (emphasis added).
The application for interim relief and the application for permission to appeal were both dismissed (Capita plc and another v Darch and others  EWHC 1248 (Ch) and Capita plc and another v Darch and others  EWHC 1401). The judge’s reasoning and summary of the legal position indicates that the question of who owns an employee’s emails and their content remains open and requires careful scrutiny of the facts of each case.
No proprietary right in employee’s emails
The judge dismissed the claimants’ argument that an employer had a proprietary right in their employees’ emails. The grounds on which the argument was dismissed are considered below.
The wording of the draft order was “considerably wider” than the standard disclosure obligations which the defendants would have in the course of litigation and was framed in a way that would capture personal and private emails.
the claimants could formulate a case without this relief;
the width of the order sought was excessive;
there would not be any saving of costs;
damages were likely to be an adequate remedy for Capita;
Capita did not need the emails to be able to take pragmatic steps to protect their business from future loss; and
the emails were not needed to police other aspects of the relief sought by Capita.
The draft order would, or would be likely to, infringe the individual defendants’ right to respect for private and family life guaranteed by Article 8 of the ECHR. The judge deemed that different considerations would arise if the emails and their contents were the employer’s property and Article 1 of the First Protocol to the ECHR was engaged. Even in these circumstances, the nature of the rights would affect the balancing exercise and, given that the relief sought included private information, the balance would fall in favour of the employee.
In addition, the trend in the authorities pointed strongly against there being any proprietary right in the content of information. Thus, the argument that the employer owned the emails and their content was not well founded in law. Three Court of Appeal decisions were considered which supported the conclusion that personal information about private life could not be treated in the same way as tangible property:
In Fairstar Heavy Transport NV v Adkins  EWCA Civ 886 a company sought to retrieve emails stored on the personal computer of its former CEO. The emails that related to his personal or private affairs were excluded from the relief sought. The Court of Appeal allowed the company’s appeal on the basis that it had the right to require its former agent to produce documents (in paper or electronic form) relating to the affairs of the principal. The “proprietary” character of the claim was a distraction from the centrality of the agency relationship. Mummery LJ made clear, however, that the law was far from settled:
“The claim to property in intangible information presents obvious definitional difficulties, having regard to the criteria of certainty, exclusivity, control and assignability that normally characterise property rights and distinguish them from personal rights … Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life.”
the physical medium on which the information is recorded; and
the rights to which the information gives rise.
He concluded that “the physical medium and the rights are treated as property, [but] the information itself has never been.” While the database did not constitute property for the purposes of the common law lien, Moore-Bick LJ left open the question of whether it could amount to property at all.
This case provides useful guidance for an employer intending to make an application to recover its former employees’ work emails. In particular, it is suggested that:
Such an application should probably not be framed as a proprietary claim to the emails and their content, but instead be made on the grounds of the right to the contents of emails in the context of an agency relationship between the parties (that is, that a principal is entitled to require production by the agent of documents relating to the affairs of the principal).
There may also be intellectual property rights to be pursued.
The relief sought in the draft order must not be drafted in terms that are too wide and should include an express carve-out for personal and private emails.
Employment status. The EAT has upheld an employment tribunal’s decision that Uber drivers were workers for working time, minimum wage and other purposes. Although uncontroversial from a strict legal perspective, it will be of significant interest to practitioners advising putative workers and employers in the gig economy.
Meanwhile, the CAC has decided that Deliveroo riders are not workers and are therefore ineligible for trade union recognition. The “almost unfettered right of substitution” (which had been occasionally used in practice), meant there was no personal service obligation.
Unfair dismissal. The EAT has held that an employer could not rely on illegality as a fair reason for dismissal after the employee, who was entitled to work in the UK, failed to produce documents to prove it. The case was remitted to decide whether the dismissal was fair for some other substantial reason. The EAT has also held that an employer breached the implied term of mutual trust and confidence when they did not tell an employee the real reason for their dismissal. Employers should not mislead employees, irrespective of their good intentions.
Finally, in the Autumn statement announced on 21 November, the government proposes to increase the national minimum wage, the tax free personal allowance, and the higher rate tax threshold. The government will also publish a discussion paper as part of its response to the Taylor Review.
A recent series of cases before the EAT have highlighted the complexities faced by respondents when determining whether to challenge the ET’s jurisdiction where a claimant has failed to comply with the EC requirements.
Since 6 April 2014, a prospective claimant must provide Acas with certain prescribed information before they can present an application to the ET to institute relevant proceedings relating to any matter (section 18A(1), Employment Tribunals Act 1996 (ETA)). The prescribed information is limited to the name and address of the prospective claimant and respondent. A claim will be rejected by an ET if the name or address of a party on the claim form is not the same as specified in the relevant EC certificate, unless the ET “considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.” (Rule 12(2A), ET Rules.)
The EAT’s initial approach
The EAT indicated that a technical construction of the EC requirements was to be discouraged. In Mist v Derby Community Health Services NHS Trust  ICR 543, HHJ Eady QC rejected an argument that the difference between the name of the prospective respondent on an EC certificate (“Royal Derby Hospital”) and respondent on the claim form (“Derby Hospitals NHS Foundation Trust”) was more than minor. She stated: “The requirement is not for a precise or full legal title; it seems safe to assume (for example) that a trading name would be sufficient. The requirement is designed to ensure Acas is provided with sufficient information to be able to make contact with the prospective respondent if the claimant agrees such an attempt to conciliate should be made … I do not read it as setting any higher bar.” (Paragraph 54.)
The purpose of EC influenced the EAT’s approach to section 18A(1) of the ETA. HHJ Eady QC commented: “[early conciliation] builds in an opportunity for pre-claim conciliation, but, other than the acknowledgement of that opportunity by means of the notification requirements, it does not oblige a prospective claimant to engage with the process in any substantive sense, still less does it give any rights to the prospective respondent” (paragraph 55). A similar approach to the interpretation of the statutory provisions was taken by Langstaff J in Drake International Systems Ltd v Blue Arrow Ltd  ICR 445 and Simler P in Compass Group UL & Ireland Ltd v Morgan  IRLR 924, cases which considered the meaning of “any matter” under section 18A(1) of the ETA. However, recent cases have suggested that the EAT’s approach is not as settled as it initially appeared.
In Giny v SNA Transport Ltd UKEAT/0317/16, a very different approach was taken by the EAT. In this case, a claimant had incorrectly named the prospective respondent as a sole director of a company, but named the company as the respondent in the claim form. The ET rejected the claim. In the EAT, Soole J found the ET was entitled to find that the difference was not a minor error. He rejected a submission by the claimant that it was sufficient compliance with the EC requirements if the information provided allowed Acas to contact the true employer. He held that any gloss on the language of the ET Rules was not warranted.
Soole J held that it was a classic issue for ET judges to determine “by application of their good sense and great experience to the evidence before them and the language of rule 12(2A).” (Paragraph 35.) The rule called for a two-stage test:
Was the difference in name or address a minor error?
If so, would it be in the interests of justice to reject the claim?
No doubt with the ET’s discretion in mind, he rejected an argument by the respondent that the difference between the names of a natural and legal person could never, as a matter of law, be a minor error.
By contrast, in Chard v Trowbridge Office Cleaning Services Ltd UKEAT/0254/16, a differently constituted EAT reached the opposite conclusion on very similar facts. The claimant had incorrectly named the controlling shareholder of the company as the prospective respondent, instead of the company itself. Kerr J agreed that the issue of determining whether an error is minor is one of fact and judgment for an ET. Nevertheless, he found that it would not have been in the interests of justice to reject the claim. ETs should “avoid elevating form over substance in procedural matters, especially where parties are unrepresented.” (Paragraph 63.) Rather than applying a two-stage test, Kerr J suggested that minor errors are likely to be ones where it will not be in the interests of justice to reject the claim because of them.
In De Mota v ADR Network and another UKEAT/0305/16, the EAT commented further on rule 12(2A), albeit in a different context. In this case, Acas had issued a single EC certificate which named two respondents (“ADR Network and the Co-operate Group”), against whom the claimant brought claims. HHJ Richardson found the claimant was entitled to rely on a single EC certificate to issue proceedings against both respondents. He considered whether the claim could have proceeded had the EC certificate identified only one of the respondents but the claim form named both. He commented that the difference between the EC certificate and claim form might not have led to a rejection, noting that Kerr J’s analysis in Chard was a “valuable guide to the correct approach to rule 12(2A).” (Paragraph 40.)
A relaxed approach or not?
While the EAT has attempted to discourage satellite litigation on this issue, further guidance is likely to be required. There are conflicting EAT authorities as to the manner in which rule 12(2A) should be interpreted. While in De Mota HHJ Richardson appeared to prefer the analysis in Chard, he did not appear to have been taken to Giny. The analysis of Giny is arguably to be preferred, on the basis that the language of rule 12(2A) suggests a conjunctive test. Therefore, the issues of “minor error” and “interests of justice” should be considered separately.
The overall direction of recent cases suggests that parties should still think carefully before taking technical arguments. However, claimants do not necessarily have a free pass; Giny demonstrates how harsh the application of the rules may be for claimants who are mistaken about the identity of their employer.
Where there are complex company structures, ETs may find that any difference between names or addresses is a minor error. In having regard to the interests of justice, ETs may consider:
Whether a claimant is represented.
The extent of their resources.
If a new claim were to be brought, whether it would be out of time.
Ultimately, ETs have a broad discretion in deciding whether to reject a claim and it may be difficult to show an error of law in a fact-sensitive decision.
In this blog post I look at possible approaches for parties to take when bringing or defending such a claim. The right approach will vary depending on the particular employer and factual scenario. However, the following are matters that should at least be considered by advisors in such cases, even if the sensible advice in some cases will be to reject them. For employers, some steps will have to be considered before any claim arises.
Identify the ‘tainting’ or decision to dismiss as an act of detriment
This addresses the issue outlined in Jhuti and CLFIS (UK) v Reynolds  EWCA Civ 439 of a dismissing officer not personally motivated by an unlawful reason. It may also help where any whistleblowing played a significant influence in, but was not the principal reason for, any dismissal (thus only succeeding as a claim of detriment rather than unfair dismissal). Such a claim needs to be formulated with care to avoid falling foul of arguments that it is really a claim for unfair dismissal and therefore excluded by s. 47B(2) of the Employment Rights Act 1996 (ERA 1996).
Consider time limits and Early Conciliation
In most cases the act of detriment resulting in dismissal will predate the dismissal itself. It is unsafe to assume that time will run from the effective date of termination, or that a tribunal will agree to extend time if one holds off until after any decision is made to dismiss (which may be several months after the detriment). Indeed, a limitation defence may still be being taken in Jhuti.
Prospective claimants and their advisors therefore need to consider at an early stage what steps need to be taken to preserve their position in respect of time limits, and this will likely involve the commencement of ACAS Early Conciliation (EC). If a claim against an individual co-worker is contemplated, EC will also have to be started in respect of that specific individual.
This may be rejected by some claimants as too risky, potentially inflaming what may already be a fraught situation, especially as their essential case is that their employer looks unfavourably on allegations of wrongdoing. In some cases it may be considered preferable to defend the dismissal case on its merits without raising a further claim of detriment. If that approach is taken, claimants need to be advised carefully on the risk that creates of any detriment claim’s time limit expiring, with careful exploration of any potential grounds for seeking to extend time later on.
Consider taking the reasonable steps defence
Jhuti only provides a defence to unfair dismissal claims, and is largely meaningless if the claimant brings a detriment claim. The reasonable steps defence introduced by section 47B(1D) of the ERA 1996 provides a complete defence if the respondent shows it took all reasonable steps to prevent co-workers from treating the claimant in the way they did. It will be necessary to run this defence to avoid equivalent liabilities in a detriment claim.
It is an inherent risk in a ‘tainted information’ case that the deception may not be uncovered until late in the proceedings, possibly the final hearing itself. It is advisable to consider whether to run such a defence at the outset of proceedings. Although many employers will, for commercial or other reasons, not wish to pursue such a defence, failing to do so increases the risk of liability in the event that their witnesses do not come up to proof.
Beef up whistleblowing policies
The reasonable steps defence requires a respondent to take all reasonable steps to prevent the relevant treatment; if a tribunal identifies something further that could reasonably have been done, it will not succeed. Such steps have to be taken in advance of any complaint of detriment being made. Any employer seeking to run such a defence needs to consider what steps it should take to prevent such detriments in general, and tainted information cases in particular. Possible steps include:
Providing clear sanctions for breaches of that policy, as happens with breaches of equality and diversity policies;
Encouraging employees to disclose the detrimental treatment of themselves or others, for example via a confidential hotline.
This last point is important: in discrimination law the reasonable steps defence does not work if co-workers fail to report acts of discrimination. It is likely that the same would hold true in whistleblowing cases.
Do not separate the disciplinary and grievance processes
Part of the problem in Jhuti was that HR had directed that the claimant’s bullying and harassment grievance against her line manager should be handled separately from the dismissal process. The tribunal considered this part of the reason why the dismissing officer did not see the ‘full picture’. Presumably, had the grievance been heard first, or at the same time, it might have uncovered the line manager’s deception. It would therefore seem sensible, where a grievance is raised about the conduct of someone linked to, or a source of information about, the dismissal, that such grievances be addressed before any decision is taken to dismiss.
Clearly identify the reasons for dismissal, and their weight
Where a decision to dismiss is based on multiple factors (e.g. multiple allegations of misconduct), it is useful to identify in any decision and outcome letter what weight each factor bore in the decision to dismiss. This will help all parties assess the causative impact of any allegedly ‘tainted’ factor. Any subsequent argument that, absent a tainted factor, the claimant would still have been dismissed is less likely to be rejected as opportunistic if it is supported by such contemporaneous evidence.
Heightened scrutiny of the dismissal case
Employers cannot afford to “think men honest that but seem so”. The best way to avoid being the subject of a tainted information claim is to avoid making a tainted decision in the first place. Scrutinising material put before the decision-maker and ensuring the word of line management or an investigation officer is not taken as given, but properly assessed for credibility, is the best way of doing this. Active consideration should be given to any claim that information has been tainted and, if such claims are rejected, the basis for doing so should be made clear.
Even if this does not prevent the decision being made, such an exercise may, if part of the company’s general practice, help discharge a reasonable steps defence.
In some cases, it may even be advisable to put evidence of the protected disclosures before the decision-maker. Jhuti implicitly criticised the respondent for failing to do this. The tribunal said that this had meant the dismissing officer had not understood the seriousness of the allegations the claimant raised, allowing the line manager to pull the wool over the dismissing manager’s eyes and suggest it was a misunderstanding. Explicit consideration of a worker’s disclosures may therefore be necessary to properly assess whether they would cause someone to taint information. This approach carries obvious risks and will not be appropriate in every case.
Keep the status of the decision-maker clear
As noted above, Underhill LJ thought there was a ‘strong case’ for an employer incurring primary liability where Iago had a ‘formal role in the decision making process’. It is sensible to clearly identify the roles of individuals in any decision to dismiss to ensure which side of the ‘formal’ line they fall.
These decisions are a double-edged sword for workers and employers. They simultaneously expand and contract the possibilities of whistleblowing claims, in both tainted information cases and more widely. There is no single right way to deal with such cases. Parties and their advisors will need to take tactical and strategic decisions tailored to the specific dispute before them, often at an early stage. The points identified above, however, may serve as a useful checklist of the factors that need to be considered.
The Claimant worked for the Respondent as a probationary employee. She made protected disclosures. In response, her line manager pressured her into retracting her allegations, criticised her performance and singled her out for unreasonable performance improvement targets. These were held by the Employment Tribunal to be detriments. In due course, she was dismissed for poor performance.
The person who took the decision to dismiss was not the Claimant’s line manager. She based her decision on the information before her. She was not provided with the emails that formed the Claimant’s protected disclosures, and was positively misled by the Claimant’s line manager about the nature of her disclosures. Meanwhile, the Claimant was so stressed by the situation that she had been signed off sick and incapable of participating meaningfully in the dismissal process.
The dismissing officer, thus misled, genuinely and reasonably believed that the Claimant’s performance fell below the expected standard, and dismissed the Claimant. Based on the tainted information placed before her, the Tribunal saw this as the ‘inevitable’ outcome.
“For Nought I Did in Hate, but All in Honour” – The decision of the Court of Appeal
Underhill LJ (with whom Jackson LJ and Moylan LJ agreed) held that when assessing the reason for dismissal, ‘the tribunal is obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss.’ The Court followed the previous decision of Orr v Milton Keynes Council  EWCA Civ 62, an ordinary unfair dismissal case that focussed the Tribunal’s inquiry into the reason for dismissal on the mental processes of the specific person appointed to take the decision to dismiss.
Accordingly, it was the dismissing officer’s decision that had to be assessed in this case, not the line manager, who had played no formal role in the process. As the dismissing officer was not motivated by any protected disclosures, the Court could not say that those disclosures were the reason for dismissal. The claim for automatic unfair dismissal therefore failed.
The Court of Appeal did, however, note that the position might have been different if an “Iago” figure:
Had had a formal role in the decision to dismiss, for example as an investigating officer whose report formed a part of the disciplinary hearing; or
Was a senior manager. The Court preferred not to reach a decisive view on this particular question.
Liability for dismissal consequent on detriment
The matter, however, did not end there. The Claimant had succeeded in her claims that her line manager’s behaviour amounted to unlawful whistleblowing detriments. The question therefore arose whether she was able to recover damages for dismissal as a consequence of those detriments.
The Respondent conceded that this was possible in principle, but in essence confined itself to arguing that that was not how the case had been put before the Employment Tribunal below. That was rejected on the facts by Underhill LJ, who concluded that ‘on the arguments advanced before us [there was] no obstacle in principle to the Claimant recovering compensation for dismissal consequent on detriment’ (emphasis added). The Court of Appeal did not decide more widely whether in general Claimants could recover damages for dismissal consequent on detriment.
However, this question has been addressed by the EAT in Osipov, where Simler P held that there was no principled reason to prevent employees recovering damages for a detriment resulting in dismissal, not least because otherwise a Claimant might be left without a remedy in a tainted information case.
Osipov has been given permission to appeal by the Court of Appeal, with a backstop hearing date of November 2018. Underhill LJ expressly refused to express a view on Osipov in Jhuti despite being invited to do so.
The current legal position
The current legal position can therefore be summarised as:
Employers are not liable for automatic unfair dismissal where a dismissing officer is not motivated by any protected disclosures, but is manipulated into dismissing by a co-worker who is so motivated.
The manipulator’s treatment of the Claimant, however, is a detriment for which a Claimant can recover all consequential losses, including dismissal (subject to the Court of Appeal’s decision in Osipov).
Such a claim can be pursued against the manipulator personally, or against the employer vicariously. In the latter claim, the employer can run a “reasonable steps” defence.
Even if logically and conceptually clear, these decisions pose difficulties for both potential Claimants and Respondents. A worker who fears they are being “fitted up” may have to begin proceedings (or at least Early Conciliation) before a decision has been taken to dismiss, to stay within time limits, with all the attendant risks that involves. Employers will be understandably concerned at the possibility of potentially uncapped vicarious liability for the acts of subordinates about which they not only knew nothing, but were actively misled.
In the next part of this blog I consider the appropriate steps and matters to be considered by both claimants, to enhance their prospects of succeeding in a claim, and by respondents faced with defending such a claim.
Littleton Benjamin Gray
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