Case law updates

Competition claims – disclosure: The Court of Appeal has upheld a disclosure order that required a defendant to ask its current and former employees to voluntarily disclose their personal mobile phones and emails so that IT consultants could search for work-related communications. Dismissing arguments that the order was disproportionate and inappropriate, in breach of the GDPR, and an infringement of privacy rights, the Court of Appeal considered it relevant that in the circumstances of the case, where the use of personal devices for business purposes was likely to be a deliberate attempt to conceal dealings, the court should have the ability to ensure that relevant documents are disclosed. This case acts as a reminder that, in appropriate cases, parties may be required to disclose documents of third parties or otherwise outside their control. [Phones4U v. Deutsche Telekom AG & others]

Covert recordings: An employee and director of a company who was dismissed for gross misconduct for installing a web enabled camera in his private office was unfairly dismissed. The claimant was suspended from duty and installed the camera because of concerns that someone was accessing his computer while he was away from work. In ruling his dismissal unfair, the EAT found that the employer had failed to carry out any balancing exercise between the rights of privacy and the claimant’s wish to protect confidential information, and since there was negligible risk that anyone other than someone entering his room would be caught on the camera, it was outside the band of reasonable responses to dismiss in the circumstances. Cases like this will always turn on their facts, but this is a useful reminder that covert recordings by employees are not necessarily acts of gross misconduct. [Northbay Pelagic Limited v. Anderson]

Employment status: The Supreme Court has held that Uber drivers are “workers” rather than self-employed contractors, entitling them to the associated rights such as the national minimum wage and paid holiday. This case is of particular significance for the gig economy, and as a general reminder that the Courts have determined that employment status is not a contractual matter. [Uber BV v. Aslam & others]

Harassment: An employer has failed to defend a claim of racial harassment by arguing that it had taken all “reasonable steps” to prevent employees acting in a discriminatory way, the EAT finding that the equality and diversity training relied on by the employer to assert the reasonable steps defence was “stale” and no longer effective to prevent harassment given that it had been delivered around two years previously. Employers should therefore be carrying out regular refresher training and/or taking any other action which is both reasonable and likely to be effective in promoting an inclusive, non-discriminatory workplace. [Allay (UK) v. Gehlen]

TUPE: A claimant who was unfairly dismissed by the transferor for a TUPE related reason could not rely on the ‘successor employer’ principle under the Employment Rights Act 1996 to seek reinstatement with the transferee (who was not named as a respondent to this claim). Following an earlier decision, the EAT held that there are limited circumstances where there would be a successor employer in a TUPE situation, and it did not cover a change in employer on a service provision change; any claim or remedy should be brought against the transferee as the new employer. [Greater Glasgow Health Board v. Neilson]

Unfair dismissal – face coverings: An employment tribunal has found that an employee was fairly dismissed for refusing to wear a face covering when attending a client’s site. The claimant was a delivery driver and had refused (despite it being the client’s policy and him being repeatedly asked) to wear a covering while he was in the cab of his vehicle, saying that was his own space. He was banned from site and summarily dismissed by his employer. Although the ET accepted that another employer might have chosen to issue a warning, it was satisfied that dismissal fell within the range of reasonable responses in the circumstances, particularly given the importance of maintaining relations with the client, his breach of health and safety policies, the practical difficulties of him being banned from the client’s site, and concerns arising from his continued insistence that he had done nothing wrong. [Kubilius v. Kent Foods]

Whistleblowing – public interest test: An EAT decision has reiterated the importance of established case law principles (the Chesterton guidelines) for applying the public interest test to determine whether a disclosure is protected under whistleblowing legislation. In particular, the public interest test will be satisfied provided the individual holds a reasonable belief that their disclosure is in the public interest; the test will not fail if they also have personal motivations or other reasons for making a disclosure. [Dobbie v. Felton Solicitors]

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