Where has the time gone? When I started this draft the leaves were starting to fall and Christmas was way over the horizon. Now it’s looming but before we get to the fun of Christmas and our seasonal lighthearted updates here are a few updates on employment law issues. Some money, some odd cases and a brief reference to things to come with GDPR.
Many of you will have read about the decision made by the Supreme Court in the in the Unison case. This was the trade union challenging the government’s right to require fees to be paid in the Employment Tribunal by people wanting to make claims.
The court ruled that fees could not be imposed; at least not in the way that government had brought them in. They made a number of points including that
- the fees were out of line with those in the small claims court
- statutory instruments (which introduced the fees) can’t be used to limit rights given by statutes e.g. the right to make a claim
- the fees order in effect prevented access to justice.
- the fees limited people’s ability to enforce EU rights
- the fees created indirect discrimination.
As at 26 July 2017 the Employment Tribunal stopped charging fees to issue claims or instigate hearings. Further they are setting about refunding something like £32,000,000 of fees already paid.
There may be complications in this refund system where, for example, a losing employer was ordered to pay the winning employees costs of issuing the proceedings.
Some employees will not have made claims because they couldn’t afford to issue proceedings. Will they get a second chance and what proof will they need that the reason for not issuing was the fee?
It will be up to government to consider legislation to bring fees back in. Fees were introduced in 2013, at least partly for political reasons, but by July 2015 they and other court fees were under review by a House of Commons Justice Select Committee. A year later they concluded that fees should be reduced, reorganised and more grounds given for remission of fees. The result of the review was published in January 2017 and was out for consultation until mid-March. In practice before anything more was done the Supreme Court concluded the fees were unlawful. It seems doubtful that the government will pursue new fee legislation with any enthusiasm at the moment, in the light of all the other things on their plate.
A change that actually came in early September relates to the level of award for injury to feelings in discrimination cases. These have been revised up by 10%. Usually where there is a finding of discrimination an employee will be able to show some injury to feelings. Generally the award should be to compensate the employee not punish the employer. There are three bands of compensation depending on the severity of the discrimination. Most cases fall in the lowest band.
- Exceptional cases: over £42,000
- Upper band: £25,200 – £42,000 for the very serious cases, e.g., where discrimination is serious and has taken place over a long period of time.
- Middle band: £8,400 – £25,200 for cases which, although serious, do not merit an award in the upper band.
- Lowest band: £800 – £8,000 for less serious cases, for example, where the discrimination occurred in a single incident.
These figures will be reviewed every March from now on and any changes will come into effect in respect of claims presented on or after 6 April in each year.
You never know where employment law will take you or where employers may face responsibilities they didn’t expect. For example in the summer Barclays Bank found that they were being held vicariously liable for sexual assaults committed by a doctor they had engaged to carry out pre-employment medical examinations. With all the accusations flying around at the moment other employers may find themselves in a similar position.
Restrictive covenants and confidentiality are an expensive minefield for employers and employees. Neither breaching covenants nor subsequent litigation should be undertaken lightly. Two recent cases show how they can work for or against either side.
In a case heard over the summer a company that produces equipment for making mattresses brought a claim against two senior managers. They had resigned with a view to setting up a rival company after their restrictive covenants expired. When they resigned they were asked about their intentions but denied that they were going into business together. The employer wanted injunctions relating to the misuse of information about the machines and customers and claimed the employees had breached a duty to answer questions truthfully.
The judge held that though employees generally have to answer questions truthfully he wasn’t satisfied that this level of employee was under a duty to disclose their true intentions about what they would do when they left. So provided there is no fiduciary duty most employees don’t have to warn an employer about why they are leaving. However he did impose limited injunctions about using data related to the machines and customers pending the full trial. He told the former employees that if they were telling the truth about not using confidential information then the injunction wouldn’t inconvenience them but warned them that if they weren’t then they may place themselves in contempt of court.
That neatly leads to the second case of an employee being sent to prison for just that. In that case the employee had emailed himself his employer’s confidential information. They got an injunction to stop him disclosing it, ordering him to preserve the emails and provide information about what he had done. Instead of taking legal advice he deleted thousands of emails and tipped off others about the injunction. After taking legal advice the employee admitted his fault. However the judge felt that in all the circumstances his blatant and repeated breach of the injunction made it necessary to give him 6 weeks in prison to show the court’s strong disapproval of his conduct and to deter others.
Back in April I mentioned this was on the horizon. It is now looming on that horizon. Many businesses are getting emails advertising courses on the subject and it’s being mentioned in all sorts of places. But that doesn’t mean they are taking it seriously; yet. There is a lot to do. The Information Commissioner has said that complying with GDPR means a change to the culture of organisations. And while she accepts it isn’t easy GDPR compliance needs to be a part of a company’s overall systems approach to how it manages and processes personal data. The Information Commissioner points out that consumers are concerned about the loss of control of their data and now expect the law and organisations to become accountable. Meeting the requirements of GDPR will therefore help meet this expectation and enhance consumer trust.
Complying with GDPR will affect nearly every aspect of most businesses. Part of the new regime is a requirement on businesses to be able to show they have assessed the risks to data, looked at the impact, taken the right practical steps to change their culture and ensure proper management of data. A tick box approach with a few policies sitting on a shelf but never used will not cut the ice.
You can start by looking at the Information Commissioners 12 step guide to preparing to GDPR. However that document on its own doesn’t supply the answers. There is a lot of work for each business to do.
I will be preparing a separate update on this subject. The first part will highlight just some of the areas you need to think about in more detail. The second part will give more detail about how GDPR impacts on the employer employee/worker relationship and how we can help with that aspect of the changes.