Summary: Our blog outlines the key employment law developments over the last month. It includes cases on perceived disability discrimination, covert surveillance, compensatory rest breaks, unlawfully bypassing collective bargaining and the exclusion of evidence of pre-termination negotiations. We also outline other points of note including changes to DBS procedures and proposed reforms to automatic enrolment.

Perceived direct disability discrimination

The EAT has upheld a claim for direct discrimination arising out of a perceived disability. The employer rejected a job application from the claimant who suffered from some hearing loss. The claimant’s actual level of hearing loss wasn’t significant enough to qualify as a disability under the Equality Act 2010. However, the employer’s refusal to recruit her was based on a concern that her hearing loss might deteriorate to the extent that she would have to be placed on restricted duties. Under the Equality Act, a progressive medical condition can qualify as a disability. Even though there was no actual evidence that the claimant had progressive hearing loss, the employer’s perception that this might happen and could prevent the claimant from doing full duties was sufficient to amount to a perceived disability. The claimant therefore succeeded in her direct disability discrimination claim.

Why this matters?

This case highlights that it is possible to claim direct perceived disability discrimination. However, in order to successfully bring such a claim, a claimant must be able to establish that the employer perceived him or her to have an impairment that satisfies the disability definition in the Equality Act 2010.

Covert video surveillance was unlawful

The European Court of Human Rights has held that a decision by a Spanish supermarket to install covert video cameras to uncover suspected thefts by its employees breached their right to privacy under Article 8 of the European Convention on Human Rights.

The supermarket had installed both visible CCTV cameras to detect thefts by customers and covert cameras to monitor their cashiers. The employer detected thefts by five cashiers, who admitted what they had done and who were summarily dismissed. Whilst the dismissals were upheld by the Spanish courts, the European Court of Human Rights found that the Spanish courts had failed to strike a fair balance between the employees’ right to privacy and the employer’s right to safeguard its business. The Court suggested that the employer should have informed staff of the installation of the video surveillance system. Despite the dismissals being properly carried out, the claimants were each awarded 4,000 Euros for non-pecuniary damage, plus costs and expenses.

Why this matters?

This decision is not inconsistent with the approach taken in the UK. Guidance published by the Information Commissioner states that it would be rare for covert surveillance to be justified. It should only be carried out where an employer reasonably believes that a less intrusive method is not feasible and, where it is undertaken, it should be for the shortest period possible and should impact as few people as is reasonably practicable. It should also be referenced in the employer’s data protection or privacy policy.

Direct offers to staff in order to side-step negotiating with trade union was unlawful

The EAT upheld the decision of the Employment Tribunal, finding that an employer who directly approached individual employees about changes to pay whilst negotiating about the same issue with its recognised trade union, committed unlawful inducements contrary to section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (the “Act”).

After the employer’s offer of a pay increase and a Christmas bonus (together with detrimental changes to terms and conditions of employment) were rejected in a union ballot, it twice communicated directly with its employees, indicating to them that their failure to take up the offer might result in dismissals. The EAT said that each of the employer’s two communications to the employees were in breach of the Act, and each claimant was awarded the mandatory award of £3,800 for each of the two unlawful communications.

Why this matters?

This case is a reminder to employers that, where collective bargaining is in place, they must act with extreme caution if they want to negotiate directly with employees. In circumstances where collective bargaining breaks down and there is a genuine business purpose for making offers directly to the workforce, employers are not prohibited from doing so. However, employers must always act reasonably when taking such steps. Failure to do so can result in significant overall awards - in this case, the total liability for the employer for these breaches was in excess of £400,000.

Excluding evidence of pre-termination negotiations

In circumstances where there is no dispute between the employer and the employee, the parties can’t rely on the ‘without prejudice’ rule to exclude settlement negotiations from evidence in litigation. However, where an unfair dismissal claim is brought in the employment tribunal, s111A of the Employment Rights Act 1996 provides an alternative route – provided certain conditions are satisfied, evidence of negotiations taking place before employment has terminated can still be excluded on the basis that they are ‘pre-termination negotiations’.

In this case, there was a dispute about the date on which the claimant’s employment terminated. The EAT said that the rule excluding evidence only applies to negotiations prior to the actual termination. As the parties disagreed about the termination date, the Employment Tribunal had to consider all the evidence to work out when the employee’s termination actually happened. This meant none of the evidence had pre-termination negotiation protection.

Why this matters?

This case highlights that there are limits to the statutory protection for pre-termination negotiations, which in any event only apply to claims for unfair dismissal. Parties will therefore usually seek to rely on the protection of the without prejudice rule, which applies generally to settlement negotiations where there is a dispute.

Compensatory rest breaks

Under the Working Time Regulations 1998, workers are entitled to a rest break if their daily working time exceeds six hours. Such a rest break should be at least 20 minutes, spent away from the worker’s workstation. There are, however, a number of sectors (including rail transport) where special exemptions apply and, in such circumstances, an equivalent period of compensatory rest must be provided by the employer.

In this case, the EAT, overturning the decision of the Employment Tribunal, found that such a compensatory rest break must be for an uninterrupted period of at least 20 minutes. The fact that the worker took a number of shorter breaks which (in total) exceeded 20 minutes did not satisfy the employer’s statutory obligation.

Why this matters?

Although the case related to compensatory rest breaks, the same principle applies to ordinary rest breaks. Employers must take care to ensure that all workers are provided with at least one continuous 20 minute break if they work more than 6 hours in a day.

Round up of other developments

Changes to basic DBS check application procedure: From January 2018, applicants in England and Wales should apply directly to the DBS for a basic certificate. It is understood that the DBS will be making available a new online application form.

Reforms to pensions automatic enrolment regime: The DWP has announced reforms that will be introduced in the mid-2020s that will reduce the lower age threshold from 22 to 18 and ensure that contributions are calculated from the first pound earned, rather than the lower earnings limit.

Changes to tax-free childcare: HMRC has announced that, with effected from 15 January 2018, the tax-free childcare scheme will be open to parents of children whose youngest child is under 9 (or who turned nine on 15 January 2018). The scheme is open to all remaining eligible families with children under 12 on 14 February 2018.