Round-up of Coronavirus developments in employment

For our round-up of coronavirus-related developments in employment, please click here

 

Reminder of employment law changes coming into force on 6 April 2020

 

Supreme Court hands down two decisions on vicarious liability

The Supreme Court has held that an employer was not liable for data breaches made by a rogue employee, overturning the decision of the Court of Appeal in W M Morrison Supermarkets v Various Claimants. In a separate case, Barclays Bank v Various Claimants, it also found that a bank was not responsible for assaults carried out by a doctor engaged to examine new employees, because the doctor was self-employed.

For further details of these cases, please see our Connectontech blog post

 

Disability discrimination: capping voluntary exit payment due to entitlement to early ill-health pension was discriminatory

The EAT has held that capping a voluntary exit scheme payment to two disabled individuals because they had immediate access to a deferred pension was discriminatory. The scheme had a cap for people who had reached ordinary pension age, but was silent on the position of people entitled to an early pension on ill-health grounds. The EAT held that applying a cap to such people was clearly unfavourable treatment arising from their disability. Furthermore, on the facts of this case, the employer had failed to objectively justify its actions.

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Restrictive covenants: no inducement to breach contract where new employer received advice that covenants were unenforceable

The Court of Appeal has held that a company (Dodd) did not unlawfully induce a new employee (P) to breach his restrictive covenants with his former employer.

Dodd received legal advice that the covenants were unlikely to be enforceable. The High Court held that some were enforceable but that Dodd was not liable. The Court of Appeal agreed. Relying on its advice about enforceability, it was clear that Dodd had not intended to cause P to breach his contract. The court held that it is sufficient for these purposes if the legal advice is that it is more probable than not that no breach will be committed.

This decision is consistent with earlier cases. While it provides a possible defence to inducement claims, organisations will be rightly cautious about disclosing privileged legal advice. Where advice is disclosed, it cannot be done so selectively: all advice on the same "transaction" must be disclosed.

David Allen (t/a David Allen Chartered Accountants) v Dodd & Co Ltd, Court of Appeal

 

Tribunal erred in finding that a manager who knowingly submitted a false investigation report was wrongfully dismissed

The EAT has upheld an employer's appeal against a finding that an employee who had knowingly submitted a false investigation report had been wrongfully dismissed. The tribunal had misdirected itself in law by equating the right to remain silent with a right to say something that is not true.

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Further details published on future right to neonatal leave and pay

In the Budget Report published in March 2020, the Chancellor announced that employees whose babies spend an extended period of time in neonatal care will be entitled to neonatal leave and pay for up to 12 weeks. The costings data which accompanied the Budget indicated that the right is likely to be introduced in the 2023-24 tax year.

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Government launches consultation on carer's leave

The government has launched a consultation seeking views on its proposal to introduce a new right that would allow qualifying employees to take an additional week of unpaid "Carer's leave" per year to provide care for a family member or other dependant who has a longer-term or otherwise significant care need. The consultation considers the circumstances that the Carer's leave might cover and asks questions about who might qualify, how the leave could be taken and what the process for taking the leave might be. The consultation closes on 3 August 2020.

 

Increase in Vento bands for discrimination injury to feelings awards​

The Presidents of the Employment Tribunals (England & Wales, and Scotland) have issued Presidential Guidance updating the Vento bands for damages for injury to feelings in discrimination claims. The new figures will apply for claims issued on or after 6 April 2020.

  • Lower band (for less serious cases): £900 to £9,000
  • Middle band (for those cases which do not merit a higher award): £9,000 to £27,000
  • Upper band (the most serious cases): £27,000 to £45,000

An award of over £45,000 may still be awarded in the most exceptional cases.