Case law updates

Disclosure of personal information: An employer was found liable for breach of confidence, misuse of private information and breach of data protection rules when private information about a former employee (a relative’s phone number) was shared with her abusive ex-partner. The ex-partner obtained the information from the employer by deception, having pretended to be a police officer, and used the information to continue a campaign of harassment. The case highlights the need for employers to raise staff awareness of manipulation techniques that can be used to extract personal or confidential information. (Raine v. JD Wetherspoon)

Reasonable adjustments – ADHD: An employment tribunal (ET) has ruled that an employer who failed to act on an occupational health recommendation to provide training to raise awareness and equip staff with practical knowledge and skills to support neurodiverse colleagues was in breach of its obligations to make reasonable adjustments. The training was recommended to support a senior employee with ADHD, whose performance was affected as a result (e.g., she struggled with ambiguity, multitasking and tight deadlines, and tended to overcomplicate things), and was intended to help her colleagues to understand how they could work better with her. The claimant did not want the training to be made obviously about her, which her employer mistakenly interpreted as her not wanting it to happen at all. The ET was critical that the training was not arranged, concluding that it could have been delivered without putting the claimant in an awkward position. The employer also failed to make reasonable adjustments by not arranging sessions aimed at improving time management and coping strategies, and by failing to set the claimant achievable and realistic targets. (Khorram v. Capgemini UK Plc)

Constructive unfair dismissal – final straw: The Employment Appeal Tribunal (EAT) has provided a clear and helpful summary of the test to be applied in final straw resignation cases, reminding employers that whatever prompts a resignation does not need to be a serious breach of contract if the broader context and history of an employer’s conduct are sufficiently serious to amount to a repudiatory breach of contract giving rise to constructive dismissal. The relevant five-stage test is: (i) what was the employer’s most recent act or omission which the employee says caused or triggered their resignation? (ii) has the employee affirmed the contract since that time? (iii) if not, was that act or omission by itself a repudiatory breach of contract? (iv) if not, was it part of a course of conduct which, when viewed cumulatively, amounted to a repudiatory breach? and (v) did the employee resign in response to that breach? The EAT noted that these questions are not always easy to answer, depending on the circumstances, but that a resignation in response to an objectively minor issue may nevertheless give rise to a successful constructive unfair dismissal claim. (Marshall v. McPherson Ltd)

Discriminatory constructive unfair dismissal: A senior executive who succeeded with claims of constructive unfair dismissal and disability discrimination when she resigned in response to being permanently replaced while on sick leave with cancer, having been misled by her employer that the cover was temporary, has been awarded over £1.2 million in compensation. While it was not inappropriate for cover to be arranged during her absence, the deception and poor communication about her replacement had costly consequences. (Wainwright v. Cennox plc)

Race discrimination: A British national of Indian origin was discriminated against when she was subjected to disciplinary action for alleged wrongdoing. The claimant was not told what the allegations against her were and, when responsibility for the investigation passed to someone new, it was dropped because there was no case to answer. The claimant identified two comparators of a different race whom she argued would have been treated differently and discovered, via a data subject access request, specific examples of differential disciplinary treatment between white and non-white staff. The employer was unable to provide an adequate explanation for its actions. While the appeal focused on technical issues of law, the case acts as a reminder to employers to act consistently and be able to justify the decisions they make. (Leicester City Council v. Parmar)

Agency workers: A pilot supplied to an airline on a five-year fixed-term contract through an agency was covered by the Agency Worker Regulations 2010 (AWR). The Court of Appeal (CA) found that the pilot had worker status with the agency, and his protection under the AWR turned on whether he was supplied to work “temporarily” with the airline. The CA interpreted this as meaning “not permanent” rather than “short-term”, concluding that the pilot had indeed been supplied temporarily. It was irrelevant that the agency had a routine practice of automatically renewing fixed-term contracts. (Lutz v. Ryanair DAC)

National minimum wage (NMW) – working time: The CA has concluded that zero-hours contract poultry workers were not undertaking “time work” for NMW purposes when travelling between their home and the farms where they undertook work, and therefore were not entitled to be paid the NMW. Travel was organised through the employer, with a minibus collecting them from home and returning them after each assignment, but this often added several hours (sometimes up to eight hours) to their day, prompting the question whether this travel time should be paid at the NMW. As work was only undertaken while they were on site, it was not the case that they would have been working if they had not been travelling and, in any event, an exception to the NMW rules applied because they were travelling from home and not their employer’s premises. (Commissioners for HMRC v. Taylors Services Ltd)

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