Case law updates

TUPE – information and consultation: The Employment Appeal Tribunal (EAT) has handed down a helpful judgment reminding us that the obligation on an employer to inform and consult with staff on a TUPE transfer only extends to an employer’s own employees. There is no TUPE obligation on a transferee (i.e., the employer receiving new employees under TUPE) to inform and consult with transferring staff before a transfer (although this commonly happens as a matter of good HR practice), and therefore no cause of action against the transferee for any failure to do so. Employees may have recourse against the transferor (as their employer at the time of information and consultation obligations), including where the transferee fails to provide required TUPE information. This case also confirms the legal position where a claimant brings a TUPE claim against the transferor having already reached a settlement with the transferee. The EAT agreed with the tribunal’s earlier decision that this prevented any award being made against the transferee for its role in the breach. Although a failure to inform and consult claim had not been issued against the transferee, the settlement was sufficient to draw a line under their involvement in the litigation. (Clark v. Middleton)

Confidentiality: The Court of Appeal has held that an employee should have no expectation of privacy or confidentiality in respect of personal emails sent from a business email account. In this case, the business account in question was a general enquiries email address, rather than one in the claimant’s name. Had the emails been sent from the latter, there would be a greater expectation of privacy. To minimise any risk of confusion in this area, employers operating general centralised email accounts are advised to also allocate personal email accounts to the staff operating that central account, although employers should also set clear expectations around limiting the use of any business-related account for private emails. (Brake v. Guy)

Employment Tribunal – costs awards: The tribunal rules allow for a costs award to be made where a claim or response is deemed to have no reasonable prospect of success. However, in this case, the EAT has held that an application for a stay of proceedings is not a ‘claim or response’ for this purpose and, as such, a costs award was not appropriate when that application failed. (Warburton v. Chief Constable of Northamptonshire Police)

Tribunal procedure – open justice: There has been an interesting case this month that has reinforced the importance of the principle of open justice in the employment system. In Frewer v. Google, the EAT provided a helpful judgment setting out the principles to be applied when seeking an anonymisation or redaction order. The EAT reiterated the importance of weighing up rights of privacy and confidentiality against principles of open justice and public interest when considering whether any names or information should be withheld. Overturning the tribunal’s granting of an anonymisation order, the EAT was clear that any deviation from the principle of open justice had to be scrutinised carefully, and that although a person, client or other name may not need to be specifically cited for the purposes of the legal issues, there was nevertheless a public interest in names being revealed in many circumstances.

Tribunal procedure – specific disclosure: An EAT decision this month is a helpful reminder that applications for specific disclosure of documents should be focused, with a clear explanation of why each document or category of document is relevant to the live issues of the case. In this claim, the claimant’s application was unclear about what she sought and why, causing her application to fail. (Dodd v. UK Direct Solutions Business Ltd)

Trade unions: Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects workers from detriment connected with trade union activities. The Court of Appeal has been considering the scope of the legislation and, in overturning the EAT’s decision, has held that it does not extend to protecting workers from detriment for taking part in industrial action. (Mercer v. Alternative Future Group)

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