Clyde & Co's UK employment team brings you CABLE, a monthly bulletin keeping you up to date with recent legal developments.

Whistleblowing

Day v Health Education England and others [2017] EWCA Civ 329 - The meaning of 'worker' in whistleblowing claims

Workers are protected from being subjected to a detriment on the grounds they have made a 'protected disclosure' (they blow the whistle).

The Claimant, a Junior Doctor on a training contract with one organisation and allocated to work for another, raised concerns with both organisations about staffing issues and patient safety. He subsequently brought whistleblowing claims against both organisations, alleging these were protected disclosures and he had suffered detrimental treatment. The organisation to which the Doctor was allocated alleged that he was neither their worker, nor their employee and he could not claim against them.

The Court of Appeal said that it is possible for an individual to have two employers for the purposes of whistleblowing protection.

PRACTICAL POINT

The effect of this decision is that in the context of whistleblowing protection, some workers such as agency workers and secondees may have two employers. So in principle if these individuals are employed by both the end-user and the third party introducer, they may be able to bring whistleblowing claims against either or both of them.

The Court emphasised that, when interpreting the whistleblowing laws, the courts and tribunals will keep in mind the purpose of these laws - to protect whistleblowers.

Holiday Pay

Fulton and another v Bear Scotland Ltd (No.2) UKEATS/0010/16 - Limiting successive underpayments

Previously, workers at a number of companies brought successful tribunal claims, claiming that their holiday pay should reflect and include the regular overtime that the workers were required to perform. However, the EAT decided that the potential for historical non-payment of holiday pay was subject to a three month time limit for deductions from wages claims, running from the last deduction or the last of a series of deductions. So the chain is broken where there is a gap of more than three months between one series of deductions and the next.

In the latest holiday pay decision, the EAT has confirmed that decision: legacy holiday pay claims are limited by any gap of three months between successive underpayments.

Click here for a detailed update on this decision.

PRACTICAL POINT

The effect of this decision is that even where an employee successfully argues that they have been underpaid in relation to their holiday, they can only actually obtain a remedy/ back pay in relation to holidays they have taken since the most recent three month gap. This rule has a material impact on the value of any holiday pay claims, as many claims will be out of time and so no back pay can be awarded, notwithstanding that holiday pay was underpaid.

The EAT's decision to apply a three month time limit between series of deductions is controversial and may be overturned in the future.

This decision doesn't give any guidance on how holiday pay is calculated for each and every holiday – although in the vast majority of cases, it will be possible to produce a reasonable answer.

Restrictive Covenants

Tradition Financial Services v Gamberoni & Others [2017] EWHC 768 (QB) - Non-compete clauses and the impact of a garden leave clause

The Claimant, a trainee inter-dealer broker had a non-compete clause preventing him from working for competitors within a specified territory for six months after the termination of his employment. The contract also provided that he could be put on garden leave and that if this was for less than three months, it would not be set off against the period of the post-termination restrictions.

Satisfied that a non-compete covenant was necessary, the High Court granted an injunction to enforce it, as the non-solicitation and non-dealing covenants would be difficult to police, and it was disputed what information was confidential. The Court said that if the Claimant had been put on garden leave and had then been subject to the non-compete covenant for a total period of nine months, this would not have been unreasonable.

Click here for a detailed update on this decision.

PRACTICAL POINT

This case illustrates that in certain circumstances, a six month non-compete clause can be enforceable on a relatively junior employee.

Depending on the circumstances, there may be scope for a restrictive covenant to be validly imposed after an employee has been on garden leave, thereby extending the period of protection. The court will assess whether that whole period of restriction goes no further than is necessary to protect the employer's legitimate business interests.

Disability Discrimination

The Government Legal Service v Brookes UKEAT/0302/16 - Less favourable treatment and failure to make reasonable adjustments

The employer required all applicants to take a multiple choice psychometric test. The Claimant's request for adjustments to be made to the application process, on the grounds she had Asperger’s syndrome, was rejected by the employer and she did not pass the test.

The EAT said that requiring applicants to take a multiple choice test could put some of those people with an autistic spectrum condition at a disadvantage and that as a matter of fact, had put the Claimant at a disadvantage, given that she was intelligent and capable and there was no alternative explanation as to why she had not performed better.

Click here for a detailed update on this decision.

PRACTICAL POINT

Employers must consider whether their recruitment processes are appropriately focussed on the tasks that their staff are required to carry out.

Many employers use a form of multiple choice psychometric test in the recruitment process. These employers must consider making adjustments to these tests for applicants who have an autistic spectrum condition (or indeed any other relevant disability). Where the medical evidence is inconclusive it is advisable to make adjustments where possible.

Gig Economy

Following an inquiry examining the contracts provided to individuals engaged by 'gig economy' companies, a parliamentary select committee has published a report on Self-employment and the gig economy

The report makes a number of recommendations, including introducing a default employment status of worker (rather than self-employed) which provides basic employment rights commensurate with worker status, and setting out a roadmap for equalising National Insurance Contributions for employees and the self-employed.