Case law updates

Confidential information: The Court of Appeal has dismissed an appeal against a High Court decision that a company breached confidentiality obligations by using client information that it had obtained from ex-employees of its competitor. The company argued, amongst other things, that the obligation of confidence only arises if it knew, or had notice, that the information was confidential, with notice objectively assessed with reference to a reasonable person in the same position. The Court of Appeal disagreed, holding that an equitable duty of confidence arises in relation to information if a reasonable person would make enquiries as to whether it is confidential, regardless of whether the recipient of the information abstains from doing so. Employers will therefore need to take care when receiving potentially confidential information and make enquiries where a reasonable person would do so. [Travel Counsellors v Trailfinders]

Constructive unfair dismissal: Overturning an employment tribunal’s decision, the EAT has held that an employee who resigned and claimed constructive unfair dismissal did not affirm the contract by invoking the grievance procedure. This is a helpful reminder that an employee’s reliance on one contractual right (such as a grievance or disciplinary appeal) does not prevent them from accepting a repudiatory breach. [Gordon v J & D Pierce (Contracts)]

Discrimination – indirect sex discrimination: The EAT has held that the key question of whether women are placed at a particular disadvantage by a provision, criterion or practice is to be considered vis-à-vis men in the same material circumstances. Where it was alleged that a parental leave policy (under which staff lost a day’s paid leave when they took three days of unpaid parental leave in a month) was indirectly discriminatory against women, the relevant pools for comparison were between male and female staff with children of sufficiently young age for the staff to be considered to have childcare responsibilities, not between staff members in general. The case has been remitted to the employment tribunal to consider the issue of disadvantage on this revised basis. [Cummings v British Airways]

Discrimination – victimisation: The EAT has held that a claimant’s grievance referring to actions that “may be discriminatory” was not sufficient to be a ‘protected act’ for the purposes of a subsequent victimisation claim. The word ‘may’ signified doubt and uncertainty, there was no reference to any protected characteristic, and other allegations had been clearly expressed – all useful reminders of the importance of clear and unambiguous language. [Chalmers v Airpoint]

Employment tribunals – applications for interim relief: Hearings for applications for interim relief must be held in public, unless an order restricting publicity has been granted. [Queensgate Investments v Millet]

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