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

Data Protection

Deer v University of Oxford and Ittihadieh v 5011 Cheyne Gardens RTM Company Ltd and Others [2017] EWCA Civ 121 – Complying with subject access requests

The claimant brought a number of employment tribunal claims against the university and then made two wide ranging data subject access requests (DSAR).

The Court of Appeal refused to make an order that the data controllers should take further steps in subject access compliance. It said there was no obligation to "leave no stone unturned" when searching for personal data.

Practical point:
Although a blanket refusal to comply with a DSAR could not be justified, as long as a reasonable and proportionate search has been made, a more extensive search would not be required even if that would reveal more personal data.
Click here for an update on the recent Court of Appeal decisions.

Religious Discrimination

Achbita and anor v G4S Secure Solutions NV (Case C-157/15) and Bougnaoui and anor v Micropole SA (Case C-188/15) - Dress codes: a policy of religion and belief neutrality in the workplace.

The European Court of Justice considered two cases involving employers objecting to Muslim employees wearing Islamic headscarves at work.

The Court concluded that a ban on wearing an Islamic headscarf, which arose from an internal rule imposing a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace, was not direct discrimination. However, it could amount to indirect discrimination, unless the ban was objectively justified.

Practical point:
Employers in the UK will still have to show that a policy of religion and belief neutrality in the workplace is proportionate, balancing their business interests on the one hand and the employee’s reasonable freedoms on the other, which in the UK market is likely to remain a difficult hurdle to overcome.
Click here for an update on these decisions.

Termination Of Employment

Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153 – When notice of termination of employment is effective

The Court of Appeal considered when an employee could be said to have received notification of the termination of her employment. In this instance, the contract of employment did not contain any express terms setting out when notice would take effect. In the absence of such an express term, notice took effect when the employee personally received the relevant letter.

To give notice to the employee whilst she was away on holiday, the employer had: emailed the employee’s husband; and posted the letter giving notice by both recorded delivery and standard post. The employer was not authorised to communicate with the employee’s husband and the employee did not read the letter until she returned home from her holiday. The date that termination took effect was significant because if the employee’s employment was terminated after her 50th birthday, she was entitled to a higher pension.

Practical point:
Employers should bear in mind that if they plan to post notice to an employee, they should allow time for the post to arrive and be opened before notice will take effect. In such circumstances, it is sensible to deliver notice directly to the employee’s own email address and to deliver the letter by hand if possible at a time when the employee is unlikely to be away on holiday.

Employment Status

Boxer v Excel Group Services Ltd (in liquidation) ET/3200365/2016 – Gig economy: cycle courier is a worker

Although the cycle courier's contract stated that he was self-employed, the tribunal looked at the reality of the employee's relationship with Excel and concluded he was a worker for a number of reasons, including that:

  • he had no bargaining power when he signed the contract
  • he worked under the supervision of a controller
  • he had to tell Excel if he was not intending to work
  • he did not pay insurance
  • in reality he could not send a substitute

The courier therefore succeeded in his claim for paid holiday.

Practical point:
An individual's employment status is assessed on the basis of the reality of the relationship and in particular the control exerted in practice, rather than what the documentation says.
Note that this is only a first instance decision, so it is not binding on other tribunals or courts. That said, this is one of a series of decisions in which the courts and tribunals have looked beyond the wording in the contract when assessing whether an individual is an independent contractor or a worker.
Click here for an update on this case.