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

Trade unions

Employer’s attempt to bypass a recognised trade union by negotiating directly with employees amounted to an unlawful inducement

The employer had been negotiating an improved pay deal in exchange for employees agreeing to changes to their working hours through its recognised trade union, UNITE. When those changes were rejected, the company wrote to employees directly offering the same package. It made two direct offers to employees, one in December 2015 and one in January 2016.

The Employment Appeal Tribunal (EAT) confirmed that this attempt to bypass the recognised trade union by negotiating directly with individual employees amounted to unlawful inducement contrary to section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. They said that if acceptance of the direct offers meant that at least one term of employment would be determined by direct agreement, and not through collective bargaining, that was sufficient to amount to a breach of the legislation. There is no requirement that the terms will not in future be determined collectively in order for there to be a breach.

The Employment Tribunal made two awards of £3,800 each to every employee who received the unlawful offers. The EAT agreed that the Employment Tribunal was entitled to make a separate award in respect of each of the two unlawful inducements, having found that the employer made two separate and distinct direct offers to employees.

Practical point

Employers must not make direct offers to employees with the intention of restricting or bypassing an ongoing collective bargaining process. Even where collective bargaining has broken down completely and the employer considers that there is a proper and lawful reason for approaching employees directly, employers should consider their position carefully because of potential for substantial awards to be made against them if they get it wrong. In this case, the employer was made to total pay penalties of more than £400,000.

Whistleblowing

Disclosure made in employee's own self-interest was not protected

A worker who has made a protected disclosure is protected by whistleblowing legislation from being subjected to a detriment or being dismissed because they made the disclosure. In order to be protected, a worker must have made a qualifying disclosure. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place.

In a recent case the UK courts decided that a disclosure made in a worker's own self-interest may also be also be made in the public interest.

In this case, Ms Parsons was employed as a Legal and Compliance Officer. Shortly after her employment began she expressed concerns about facing personal liability if her employer was in breach of its legal obligations. In order to allay her fears the employer changed her job title. However, concerns were raised that she was not considered or commercial in her approach, and about the rude and irrational manner in which she raised concerns. She was subsequently dismissed, after only around 6 weeks' employment, and brought a claim that she had been automatically unfairly dismissed having made protected disclosures.

The EAT decided that Ms Parsons raised compliance issues purely out of concern for her own potential liability and not in the public interest, and so did not make qualifying disclosures for the purpose of whistleblowing protection. They also concluded that the reason for her dismissal was not that she had raised concerns but that she had behaved in a rude and irrational manner when communicating her concerns. As a result, she had not been unfairly dismissed.

Practical point

Where an employee is in a compliance role, almost every issue they raise will relate to matters that may amount to a protected disclosure. In deciding to dismiss a person in a compliance or similar role, it will be particularly important for the employer to be able to show that the reason for dismissing them is genuinely separate from the fact of them raising concerns.

It is important to remember that, although in this case the tribunal made no finding that Ms Parsons' disclosures were made in anything other than her own self-interest, in other cases the employee may be found to have made protected disclosures where they raise concerns partly in their own self-interest and partly in the wider public interest.

Disability discrimination

EAT confirms that it is unlawful to discriminate against an employee because of a perceived disability

In the first case of its kind, the EAT has upheld a claim for direct discrimination based on perceived disability.

Ms Coffey was a Police Constable. She had some hearing loss which was just above the national standards for hearing loss for the police. Following national guidance, her employer arranged a practical functionality test which she passed, enabling her to work as a police constable. Ms Coffey subsequently applied to transfer to the Norfolk Constabulary. She underwent another hearing test, which found the same level of hearing loss as previously identified. However, her application was rejected without a practical functionality test being carried out. Ms Coffey brought a direct disability discrimination claim.

The evidence showed that the reason Ms Coffey's transfer application was rejected was because Norfolk Constabulary perceived that she had a disability in the form of a progressive condition that could progress to the point where she would need to be put on restricted duties. They would not have rejected an applicant who was not perceived as having a progressive condition.

Practical point

In some respects the decision in this case is not surprising as we already know that discrimination based on perception of other protected characteristics is unlawful, such as discrimination on the basis of someone's perceived sexual orientation. However, it is useful clarification that the same applies in the context of disability discrimination and as an illustration of how the tribunal will approach this issue. It also serves as a reminder of the need for employers to avoid making assumptions about a health condition, which may lead to a claim for direct disability discrimination.

Other developments

Employment Tribunal statistics show a substantial increase in the number of claims brought

The latest Employment Tribunal quarterly statistics show that the number of claims brought by a single claimant in the period July to September 2017 is up 64% on the same period in the previous year. This is the highest rate in four years and is likely to be explained by the abolition of Tribunal fees on 26 July 2017. However, the number of claims brought by multiple applicants decreased by 15%.