Summary: In our May update we cover recent cases on topics including whistleblowing, religious discrimination, whether a work policy has contractual effect, and the primacy of EU law. We also cover updates on matters such as the impact of Brexit on employment law and the new General Data Protection Regulation.

Whistleblowing disclosures must contain information

The EAT in Kilraine v LB Wandsworth gave a useful reminder on two important whistleblowing principles. Firstly, the EAT emphasised that a disclosure will only be protected under the whistleblowing legislation if it contains information, and is not just a mere allegation. Tribunals should not assume that a disclosure must be either one or the other – information and allegations are often intertwined. A disclosure that contains both information and allegation will still be protected. It is only if the disclosure is a mere allegation, without any information, that it has no whistleblowing protection. Secondly, The EAT also confirmed that suspending someone is a detriment which continues over the entire period of the suspension. It is not an act that takes place on the date the suspension begins. This is relevant when it comes to working out whether a claim has been brought in time.

Low threshold for satisfying the whistleblowing ‘public interest’ test

In Morgan v Royal Mencap Society the EAT said that the employment tribunal was wrong to have struck out a whistleblowing claim at a preliminary hearing. The tribunal said that the employee had no prospects of demonstrating a reasonable belief that her complaint about cramped working conditions was in the public interest. The EAT disagreed. A high threshold must be met before a case can be struck out, and this is something that could only be decided by looking at the evidence at the substantive hearing. 

It is a requirement under whistleblowing legislation that a claimant shows that they reasonably believed their disclosure was made in the public interest. This requirement is intended to stop individuals blowing the whistle about breaches of their own employment contracts or working conditions. However, EAT case law has set a low threshold for satisfying this public interest test. In Morgan the EAT said there was at least the potential for the claimant to satisfy the public interest test, given the employer’s charitable status and the potential threat to the health and safety of other colleagues. We can expect further guidance on the public interest test from the Court of Appeal later this year, as it is due to hear an appeal on this point in another whistleblowing case called Chesterton v. Normohamed.

Disciplinary action for imposing religious views on colleague was not discriminatory

In Wasteney v East London NHS Foundation Trust the EAT said that an employer’s decision to discipline a born-again Christian employee who imposed her religious views on a junior Muslim colleague was not discriminatory. The employee was given a final written warning, reduced to a first written warning on appeal, for failing to maintain professional boundaries at work. The employee had given the junior colleague a book promoting conversion to Christianity, had prayed for her in a one-to-one meeting and had repeatedly invited her to attend church functions. The employee’s claim for religious discrimination was rejected by the employment tribunal and, on appeal, the EAT. She was disciplined not for manifesting her religious beliefs, but for the improper manner in which she manifested them.

An employer must conduct a balancing exercise in situations like these. Whilst it will depend on the facts of each case, an employer can be justified in restricting an employee’s wish to manifest their religious beliefs in the workplace where the manifestation is improper, because, as in this case, it was unwanted conduct imposed on a junior employee.

Absence management procedure was incorporated into employment contracts

In Sparks and others v Department for Transport the Court of Appeal, agreeing with the initial High Court decision, decided that an absence management procedure in a staff handbook had been incorporated into employees’ employment contracts. Accordingly, the employer was unable to make unilateral changes to the policy when it tried to impose a lower trigger point for starting formal absence procedures. 

The Court of Appeal said that the original absence management procedure had been incorporated into the employees’ employment contracts. The procedure was in a part of the handbook which the employer had intended to be contractual. The provisions of the procedure were also sufficiently clear and precise to be incorporated directly into the employee’s contracts. The employer therefore had no authority to impose the new procedure unilaterally. The Court stressed that these types of cases always turned on their facts, but the most important question to ask is whether the provision in question is ‘apt for incorporation’. In this case, the wording of the handbook had a ‘distinct flavour of contractual incorporation’.   

This case highlights the importance of making clear which employment provisions are intended to be contractual or non-contractual. An employer has far greater scope and flexibility when it wants to change non-contractual provisions.

Employer’s genuine and reasonable belief that employee was not entitled to work in the UK was a fair reason for dismissal

In Nayak v Royal Mail Ltd the EAT confirmed that an employer fairly dismissed an employee for some other substantial reason (SOSR). The employer genuinely and reasonably believed the employee no longer had a right to work in the UK, but did not have actual knowledge that the employee was working illegally. The employer had made sufficient attempts to establish the employee’s immigration status over an extended period, by asking both the employee, who had persistently refused to co-operate, and the Home Office.

This case is a useful reminder that for a SOSR dismissal the employer only needs to establish a genuine and reasonable belief (in this case that a statutory restriction applied preventing continued employment). This is in contrast to a dismissal for contravention of a statutory restriction, where an employer has to establish actual knowledge that continued employment would be illegal.

National law must be interpreted in line with EU law or disapplied

The European Court of Justice (ECJ) in Dansk Industri (DI) v Estate of Karsten Eigil Rasmussen held that an age discriminatory Danish law was contrary to general principles of EU law and so should either be interpreted in line with EU law or, if that was not possible, should be disapplied. This is so even though the case involved private sector employees, rather than public sector employees (the latter may be able to directly enforce employment rights under EU Directives against their employers without having to rely on the implementing national law). The Danish law in question provided for a severance payment to be made to long service employees on termination of employment, but excluded employees who were entitled to an occupational pension. This exclusion was age discriminatory.

Although this case involved Danish law, it is significant because it emphasises the primacy of EU law. It reaffirms that where general principles of EU law apply, such as the principle of non-discrimination, UK employment law will have to fall into line with what EU law requires, even if this means disapplying national legislation.

New General Data Protection Regulation in force from 2018

The EU has adopted the General Data Protection Regulation (GDPR) which will significantly change data protection law from 2018. In the employment context, this includes changes to the subject access requests regime, new ‘delete it, freeze it, correct it’ rights, and far stricter limits on the use of employee consent to allow for the processing of data (for example to transmit it overseas outside the EEA).  Employers are well advised to consider preparing for the GDPR sooner rather than later. The ICO has published general guidance on preparing for the GDPR and ’12 steps to take now’.

New Trade Secrets Directive approved

A new Trade Secrets Directive covering the unlawful acquisition, use and disclosure of trade secrets has been approved by the EU. Under the Directive a “trade secret” is information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. It is intended to introduce a minimum harmonised standard across member states.  Importantly, the Directive will not affect non-compete post-termination restrictions which will remain a matter for national law.  It will also contain an exemption for whistleblowers who act in the general public interest to acquire, use or disclose a trade secret in order to reveal misconduct, wrongdoing or illegal activity. The Directive is likely to come into force in Summer 2018.

The impact of Brexit on employment and health & safety laws

The TUC has published an Opinion by Michael Ford QC on the potential impact of Brexit on EU-derived rights in employment, including health and safety. The Opinion includes a useful summary starting at page 63.

ACAS guide to help combat sex discrimination in the workplace

ACAS has published a new guide to help employers and managers identify, tackle and prevent sex discrimination in the workplace. Sex discrimination: key points for the workplace is intended to assist employers better understand equality laws behaviour which could be considered as sex discrimination.  It covers best practice advice on dealing with areas where sex discrimination can occur, including recruitment, pay and conditions, promotions and redundancies.

Consultation on calculating pensions loss

The President of the Employment Tribunals has issued a consultation paper covering the approach that tribunals should take when calculating pensions loss. The proposal is for pensions loss to be calculated on the basis of the employer’s contributions over the period of loss, or in complex cases, holding a separate remedies hearing to assess pensions loss on the basis of the Ogden tables or with expert actuarial evidence.

Consultation on 30-hour free childcare entitlement

The Department for Education has published a consultation on the 30-hour free childcare entitlement contained in the Childcare Act 2016. The Childcare Act 2016 (not yet in force) places an obligation on the Secretary of State to ensure that free childcare is available for qualifying children of working parents for 30 hours in each of 38 weeks in any year.  The consultation seeks views on the operation and delivery of the 30-hour free childcare entitlement before the Act comes into force.