Miscellaneous

Working from home and the return to the office

A senior employee’s request to work permanently from home was justifiably rejected by her employer, despite the fact that she had successfully been doing so since the start of the pandemic.

Settlement agreements and future claims

Unknown future claims arising under the Equality Act 2010 may be waived in a settlement agreement provided that the types of claims are clearly identified.

Vicarious liability: close connection

A congregation of Jehovah’s Witnesses was not vicariously liable for the rape of a member of its congregation by a former elder. While the relationship between the elder was akin to employment, the rape was not so closely connected with what the elder was authorised to do that it could fairly and properly be regarded as committed by him while acting in the course of his quasi-employment.

WhatsApp messages and misuse of private information

The High Court has refused to strike out a claim for misuse of private information which was brought by an employee against her former employer. In so doing, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages that had been found at work.

Unlawful inducements and collective bargaining

An employer’s imposition of a pay award, at a time when negotiations with the union were stalled, was an unlawful inducement.

Industrial action and protection from detriment

Workers are not protected against being subject to a detriment by their employer for participating in industrial action.

Agency workers: right to be informed of vacancies

Regulation 13 of the Agency Workers Regulations 2010 gives agency workers a right to be informed of vacancies in the same terms as permanent workers: it does not give them a right to apply.

Employer not liable for injuries caused by practical joke

An employer was neither directly or vicariously liable for injuries inflicted on one of its contractors by one of its employees playing a practical joke.

Flexible working and agreements to extend

An employee had not agreed to an extension to the normal three-month time frame for deciding flexible working requests when he agreed to attend an appeal outside that three-month period.

NMW and expenses

Payments made by a driver to rent his vehicle and uniform should have been taken into account when working out whether he had been paid the National Minimum Wage (NMW).

Direct pay offer to employees was an 'unlawful inducement'

An employer who directly offered its employees a package of revised terms and conditions - going over the head of the recognised trade union – unlawfully induced them to cease collective bargaining.

When does sleep count as 'work' for NMW purposes?

‘Sleep-in’ residential care workers are only entitled to the National Minimum Wage (NMW) when they are awake and ‘actually working’, not when they are asleep and therefore simply ‘available for work’.

Employee - not employer - carrying out surveillance in the workplace

It was unreasonable for an employer to dismiss an employee for gross misconduct because the employee had installed a camera in his office whilst he was suspended from duty.

Trade union activities and detriment

When considering whether an employer has subjected a worker to a detriment with the sole or main purpose of penalising them for taking part in the activities of an independent trade union, the question of the employer’s ‘sole or main purpose’ is a subjective question, i.e., what was in the mind of the employer at the time.

Settlement agreements and misrepresentation

Where COT3s or settlements are concerned, the protection afforded by the ‘without prejudice’ rule may fall away where there is an allegation of misrepresentation.

Health and safety protections and 'workers'

‘Workers’ and not just employees should have protection from being subject to detriments on health and safety grounds and the right to be provided with PPE.

Agency Workers Regulations: 'temporary' work requirement

A worker who had an open-ended contract of employment with an agency was nonetheless supplied to work ‘temporarily’ for an end user.

COT3 agreements and confidentiality clauses

An employee’s breach of a confidentiality clause in a COT3 settlement did not free his employer of its obligation to continue making instalment payments of the agreed settlement sum.

Employer not liable for employee's data breach

An employer was not vicariously liable for the actions of one of its employees who, to damage his employer, leaked personal staff data on a file-sharing website.

CCTV surveillance and the right to privacy

Shop workers’ right to privacy was not breached when a supermarket relied on covertly recorded CTV images to dismiss them for theft.

Privilege: don't be tempted to cherry pick

An employer had waived privilege in advice about dismissal and so couldn’t cherry pick which parts of the advice it disclosed.

Employee shareholder status

Someone who validly becomes an ‘employee shareholder’ did not revert to ‘employee’ status when he later concluded a service agreement with his employer.

Illegality and breach of immigration rules

A breach of the immigration rules did not mean that an employment contract was unenforceable.

AWR do not confer right to same contractual hours of work

An agency worker’s right to equal treatment in relation to the ‘duration of working time’ under the Agency Workers Regulations does not entitle him or her to the same number of contractual hours as a directly recruited comparator.

Making covert recordings at work

An employee making a covert recording at work may be guilty of misconduct.

Dismissal based on employee's phone data did not engage art. 8 of the ECHR

An employee’s right to privacy was not breached when his employer relied on data found on his phone during a police investigation into allegations of harassment against the employee by another colleague.

Employer not liable for injury at Christmas party

An employer was not liable in negligence for an injury occasioned to one of its employees at the staff Christmas party; neither was it vicariously liable.

Personal liability of directors

Directors of a limited company can, in certain circumstances, be personally liable for inducing a company to breach an employment contract.

Suspension of employee not presumed repudiatory breach

Suspension can be a breach of contract – but on each occasion it is a question of fact. A tribunal must consider whether the employer has ‘reasonable and proper cause’ to suspend, not whether it was ‘necessary’ to suspend the employee.

Employer liable for injury to employee at impromptu work party

An employer was vicariously liable for life-changing injuries inflicted by its managing director on one of its employees at a Christmas party.

Tribunals can interpret contracts in unauthorised deductions claims

Faced with deciding whether a sum is ‘properly payable’ for the purposes of an unauthorised deduction claim, a tribunal does have jurisdiction to interpret contractual terms.

'Same type of contract' for part-time worker comparison

A permanent, full-time employee was employed under the ‘same type of contract’ as a part-time employee on a zero-hours contract for the purposes of the Part-time Workers Regulations.

References and negative opinions

Except where there is a ‘red flag’ prompting further inquiry, such as an obvious error in the material or where information has come to light which casts a doubt on the reliability or integrity of the facts or opinions in the underlying material, there was no duty to examine the procedural fairness of investigations upon which facts and opinions in a reference were based.

Higher pay cannot offset inferior holiday entitlement under AWR

Providing an agency worker with 28 days’ holiday and half-hour rest breaks when comparable permanent employees were entitled to 30.5 days’ holiday and rest breaks of one hour breached the Agency Workers Regulations (AWR).

False dismissal reason is breach of trust and confidence

The implied term of trust and confidence may be breached if an employer misleads an employee about the reason for their dismissal.

Monitoring of employees' personal communications at work

Where an employer had a ban on personal use of company equipment and an employee denied using an e-mail account for personal reasons, it was a breach of his right to a private life for his employer to access that personal account to disprove what he was saying.

Pension benefits for same-sex partners

Surviving civil partners and spouses in same-sex marriages must be provided with pension death benefits on the same basis as would apply to a marriage between a man and a woman. In particular, such benefits cannot be limited to the member’s pensionable service completed on or after 5 December 2005.

Claimants who do not properly particularise their complaints risk costs

Liddington v 2Gether NHS Foundation Trust

 

An EAT decision which serves as a word of caution to some claimants, but perhaps also as a reassurance to employers. The EAT upholds an order made for costs against a litigant in person. Whilst generally, a tribunal will afford unrepresented parties a degree of discretion in how they present their claim and conduct themselves throughout proceedings, this case indicates that there is a limit to that discretion.

Tribunal sets aside settlement agreement on grounds of mental capacity

Glasgow City Council v Dahhan

 

An employment tribunal can set aside a settlement agreement on the ground that it is invalid because the claimant did not have mental capacity at the time the agreement was concluded.