We are pleased to provide you with the Herrington Carmichael employment law update for December 2019.

This is a key note summary of some of the main developments in employment law in the last month.

1. Dismissal where reason is hidden

The long running saga in the case of Royal Mail Group Ltd v Jhuti, has come to an end. This is the case that relates to the basis for dismissing an employee, who has made a protected disclosure or whistleblown. The Supreme Court has held that where the real reason for a dismissal is because an employee made a protected disclosure, that dismissal will be automatically unfair. This is the case even if the decision maker did not have knowledge of that disclosure.

As a reminder, the Claimant, in this case, blew the whistle to her line manager. The Claimant was subjected to a detriment, by an unreasonable performance improvement plan and eventually dismissed by a different manager who knew nothing about the original disclosure. The Claimant bought a claim for automatic unfair dismissal, on the basis of her protected disclosure and she had been subjected to detriment. Her original claim did not succeed and the Claimant appealed all the way to the Supreme Court.

The Supreme Court found that where someone in a senior position to an employee has deliberately hidden the real reason for their dismissal, and used a fictitious reason, it is the Court’s duty to look past the fictitious reasons. Even though the decision maker was unaware of the disclosure, this knowledge could be imputed on the employer as a result of the manager’s actions.

While it will likely be rare that individuals will fabricate a reason to force a dismissal, it is important that employees are aware of the potential consequences of their actions. This case is a useful reminder for Employers to ensure they have adequate protection and policies in place for employees who wish to make a protected disclosure or whistleblow.

2.TUPE protection extending to workers

In the recent case of Dewhurst v Revisecatch Ltd t/a Ecourier, an Employment Tribunal extended the reach of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) from employees to also include workers.

The current legislation states that the definition of ‘employee’ for the purposes of TUPE is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise.” Employment Judge Joffe has interpreted the words “or otherwise” to include workers. The reason for her interpretation is that the Acquired Rights Directive states that TUPE should be interpreted liberally.

This decision, if followed, has potentially broad reaching issues for employers and it is one we will be watching closely. It could mean that all of the application of TUPE applies to workers as well as employees. The outcome in this case is, however, made by an Employment Tribunal and is therefore not binding. The Employers has 42 days to appeal this, and it is likely they will. We will wait to see how this case develops.

3. Settlement Agreements and Legal Fee Contributions

In the recent EAT decision of Solomon v University of Hertfordshire, a comment was given regarding legal fee contributions of £500 + VAT in settlement agreements. The Judge said this contribution might be enough to cover advice on the “terms and effects” of a settlement agreement, but it is highly unlikely to cover the cost for a solicitor to give advice on the merits of any potential claims and the likely award of compensation, as this type of advice would require further reading in to the matter.

The statement made in this Judgment does not mean that Employers have to increase the legal fee contribution given in settlement agreements. However, it may be used to attempt to persuade employers to pay more. The legal requirement, for a settlement agreement to be binding, is for the employee to take advice as to the “terms and effect” of the agreement and, therefore, a legal fee contribution at this level would be sufficient. If employees do want to take more detailed advice as to the claims they will be waiving, it is for them to decide and, if necessary, pay separately for this advice. However, where an employee is not fully advised, this can result in expensive and time consuming issues.

4. Covert CCTV Recordings

In Lopez Ribalda and Others v Spain, the European Court of Human Rights ruled that covert CCTV recording was not a breach of an employee’s privacy rights under the European Convention of Human Rights because it was proportionate in balancing the loss of privacy against the necessity of conducting covert recordings.

The Claimants worked at a supermarket and were dismissed for theft of over ten thousand pounds. The theft was caught on covert CCTV cameras. The Claimants argued that the footage was inadmissible on the basis that it breached their privacy rights. The ECHR confirmed it was not a breach of any privacy rights on the basis the installation of the cameras were fitted above the tills, and was necessary and justified. If the Company had informed employees of the cameras, it would have undermined the aim of trying to catch the thief.

This case gives employers a useful guidance on an employer’s ability to monitor staff activity without letting them know. Employers must consider the data protection legislation, human rights legislation and undertake an impact assessment, before undertaking any covert recordings. Recordings which are proportionate, taking in to account the data protection laws, are generally allowed. Covert recordings must be justified, but may be justified if the measure is proportionate depending on the reason for using it.