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Monthly Knowhow Case Law Update

This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

March 2013

This is a summary of some of the most important cases reported in February 2013. It is not intended to be a full analysis of each and every case and some cases reported this month are not contained in this summary. We have made an editorial decision about which cases to include to ensure that the document remains manageable. Instructions

Clicking on the Case name will take you to the actual case report.

Clicking on "read more" will take you to our PM summary and action points/commentary

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This edition includes:

"NEED TO KNOW"

TUPE/REDUNDANCY CONSULTATION

1. Council's failure to provide agency workers information breached redundancy and TUPE consultation duties Unison v London Borough of Barnet – Read more (p4)

TUPE

2. Advocate General endorses 'dynamic' approach to collective bargaining agreements following TUPE transfer Alemo-Herron and others v Parkwood Leisure Ltd – Read more (p5)

INDUSTRIAL ACTION

3. Statutory Recognition Rules rewritten on Human Rights grounds

Pharmacists Defence Association v Boots Management Services Ltd – Read more (p7)

WHISTLEBLOWING

4. Disclosures made after employment ends can be protected under whistleblowing rules

Onyango v Berkeley (t/a Berkeley Solicitors) – Read more (p9)

DISCRIMINATION

5. Exempting a disabled employee from an employer's absence management policy was not a reasonable adjustment Jennings v Barts and the London NHS Trust – Read more (p10)

6. Enhanced redundancy payments to older workers were justified Lockwood v Department of Work and Pensions and another – Read more (p11)

HUMAN RIGHTS/CONFIDENTIALITY

7. Freedom of expression & employee confidentiality – EAT gives guidance on the balance to be struck Hill v Governing Body of Great Tey Primary School – Read more (p13)

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"NICE TO KNOW" HUMAN RIGHTS

8. Government's unpaid 'back to work' schemes unlawful but not in breach of human rights

R (Reilly and Wilson) v The Secretary of State for Work and Pensions– Read more (p14) DISCRIMINATION 9. Requirement for law degree not objectively justified and does amount to age discrimination Homer v Chief Constable of West Yorkshire Police – Read more (p15)

10. Comment about the Pope did not amount to harassment on the grounds of religion

Heafield v Times Newspaper Ltd – Read more (p16)

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"NEED TO KNOW"

TUPE/REDUNDANCY CONSULTATION

1. Council's failure to provide agency workers information breached redundancy and TUPE consultation duties Unison v London Borough of Barnet Summary An Employment Tribunal (ET) has found that Barnet Council breached its consultation obligations under both collective redundancy legislation and the TUPE regulations, for failing to provide sufficient information on the agency workers it engages, during consultation on a redundancy exercise and two TUPE transfers. Background The Agency Workers Regulations (AWR), which came into force in October 2011, introduced a requirement for employers to provide information on agency workers during TUPE and collective redundancy consultation. This includes information on the number of agency workers engaged, the areas of the business in which agency workers are being used and the type of work being carried out by agency workers. Facts

This case involved a redundancy exercise carried out across Barnet Council (the Council), and the transfer of employees from the Council to two transferee employers. One transfer was of housing staff (the housing transfer); the other was of parking staff (the parking transfer). The redundancy exercise resulted in 16 redundancy dismissals and the TUPE transfers resulted in over 100 employees being transferred. During the formal consultation process for both the redundancy exercise and the TUPE transfers, public sector trade union, Unison, requested agency worker information from the Council. Whilst information was given, Unison claimed that it was insufficient and did not allow for effective consultation. Following the conclusion of the redundancy exercise and TUPE transfers, Unison brought a tribunal claim against the Council for failure to provide information regarding agency workers. Decision

The ET upheld Unison's claim. Whilst the Council had provided information on its agency workers, the information was insufficient and the Council had therefore failed to comply with its duty. Specifically, not enough information was given about the areas of the Council's business in which agency staff were being used, nor enough about the type of work being carried out. The ET considered the breach to be most serious in relation to the redundancy exercise as the information has greater value in this context, because employers might be able to reduce the number of agency staff and that might assist them to save jobs and reduce the number of redundancies that they make. The ET therefore made a protective award for 60 days pay for each of the 16 redundant employees. The ET recognised that the breach was less serious in relation to the TUPE consultation where the value of the information to Unison would have been less, particularly in relation to the housing transfer where the impact of the transfer on the employees was minimal (moving base by 1.5 miles). Although less serious a breach in relation to the TUPE consultation, the ET held that the duty is important and should still be complied with. In reaching its decision, the ET also noted that the information was relatively easy for the Council to produce, had been produced in the past and that the Council's HR department was aware that the trade union wanted this information in relation to the TUPE transfers. The non-

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compliance was more than a technical failure and the ET awarded compensation of 40 days' pay for employees affected by the first transfer, and 50 days' pay for those affected by the second transfer.

Action points/Comments:

This case is the first decision that we have seen on these provisions and shows that a failure to provide agency workers information can be an expensive mistake and will not be regarded as a technical breach.

It is important for employers to ensure that they have proper, adequate records of the numbers of agency staff, where in the business the work is being carried out by agency workers and what work is being carried out by agency workers.

This information should be readily to hand so that HR can communicate this during TUPE or collective redundancy consultation processes.

Hirers and agencies should agree in their terms and conditions, an obligation on the agency to provide information if requested by the hirer regarding the number of agency workers who are on assignment with the hirer at any given time.

However, the agency is unlikely to know which part of the business the agency worker is assigned to and the type of work they are doing, so hirers need to ensure that (i) this information is shared with the agency when the worker is engaged; or (ii) someone in the hirer‟s organisation is responsible for tracking agency workers and maintain a list of this information. Back

To watch our HR Network TV programme on this case, click here.

TUPE

2. Advocate General endorses 'dynamic' approach to collective bargaining agreements following TUPE transfer Alemo-Herron and others v Parkwood Leisure Ltd Summary The Advocate General (AG) has said that the EU Directive which the TUPE regulations implement domestically (the Acquired Rights Directive), permits UK courts to take a "dynamic" approach to obligations stemming from national collective bargaining agreements. This approach means that it would be for national courts to decide whether employees could continue to benefit from future pay increases under such an agreement once they have transferred to the private sector. Facts The 24 workers involved in this long-running case were originally employed by Lewisham Council (the Council), under contracts which gave them the right to pay increases in line with the National Joint Council for Local Government Services' collective agreement. In 2002 their jobs were transferred to a private sector employer that continued to apply the nationally-agreed pay increases, before there were once again transferred to Parkwood Leisure Ltd (P) in 2004. P originally uprated pay "without liability" in line with the collective agreement, but stopped doing so shortly after the transfer. The case reached the Supreme Court in June 2011 after progressing through the ET system. The Supreme Court said that it was inclined to take the view that the right to benefit from the national pay increases did transfer under TUPE, and so bound subsequent contractors, in line

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with earlier case law and a natural reading of the workers' contracts of employment. The fact that there was a clear contractual reference to the NJC arrangements meant that the employees had a right to benefit from them, even though the private sector employers could not participate in or influence the agreement. However, the Supreme Court decided to check this understanding with the Court of Justice of the European Union (CJEU), which had previously ruled that the Acquired Rights Directive did not prevent national courts from adopting a static approach (meaning that pay rises after transfer would not apply to the transferred-out workers). Under German law, post-transfer changes to a collective bargaining agreement do not impact on the transferee. Advocate General Decision The AG's opinion upholds the view of the UK's Supreme Court. In his ruling, the AG said that the Acquired Rights Directive was only intended to achieve "partial harmonisation" rather than "establish a uniform level of protection throughout" the EU. In addition, the case could be distinguished from previous German cases as the clause giving effect to the agreement was set out in "an employment contract containing a dynamic clause adopting the terms agreed in future agreements". "In view of the foregoing, I am of the opinion that the [Acquired Rights Directive] presents no impediment to the United Kingdom allowing parties to use dynamic clauses referring to future collective agreements and accepting that such clauses are transferable as a consequence of the transfer of an undertaking," he said. "The directive does not require member states to adopt a dynamic interpretation to clauses referring to a collective agreement ... however, the directive does not, in principle, prevent member states from allowing dynamic clauses referring to collective agreements to exist." Action points/Comments:

AG opinions are not binding on the CJEU, which will deliver the final ruling. However, judges use the opinions in making their decisions and opinions are followed in the majority of cases.

Employers should note that this case is about what the contract of employment says, not just about whether collective agreements are static or dynamic.

The contract of employment stated that the terms and conditions would be those decided through national collective bargaining. That is no different to saying pay rises will be linked to inflation. Collective agreements made after the transfer only have an impact for transferee and employee because the contract says that this will be the case.

Nevertheless, the practical implications of the likely outcome of this case may be huge. Many contractors may be bound by collective bargaining outcomes that they don't control unless and until they can break the link between the contract and the national collective bargaining.

This area is one which the Government is considering in its proposed reforms of TUPE.

This opinion makes clear that the Government is in control of the solution and can place a time limit on how long collective agreements will continue to bind a transferee.

Given the practical impact of contractors being bound by ongoing public sector collective bargaining, the case for reform appears stronger and more urgent. Back

A Government consultation on changes to TUPE, designed to remove what it claims are "gold-plated" protections from the regime, closes on 11 April.

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INDUSTRIAL ACTION

3. Statutory Recognition Rules rewritten on Human Rights grounds

Pharmacists Defence Association v Boots Management Services Ltd

Summary

The Central Arbitration Committee (CAC) considered the law in the UK on trade union recognition and ruled that the legislation on statutory recognition requests did not properly give effect to Article 11 (the right to freedom of assembly) of the European Convention on Human Rights (ECHR).

Background

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides a mechanism for a trade union to seek statutory recognition by an employer. If a successful application for recognition is made, the employer must recognise that union for the purposes of collective bargaining on core topics. However, it was previously clear from the legislation that a trade union could not make a request for statutory recognition if the employer already recognised a trade union for any collective bargaining purposes. The process for recognition is regulated by the CAC. Facts The CAC, in this case, was faced in this case by an employer who had 'recognised' the Boots Pharmacists Association (BPA) after the Pharmacists Defence Association (the Union) had contacted Boots Management Services Ltd (Boots) seeking formal recognition. Boots had a long standing relationship with the BPA. There was evidence of consultation between Boots and the BPA over a number of years (primarily concerning matters such as the machinery for consultation and facilities of officials). The BPA was listed as a trade union by the Certification Officer for Trade Unions and Employers Associations ('the CO'), but did not have a Certificate of Independence from the CO. Significantly, the BPA had never been recognised by Boots for the purposes of collective bargaining in relation to terms and conditions of employment. The Union accused the BPA of not being independent, and also argued that the BPA was ineffectual. The Union applied to Boots for formal recognition. In what seems to have been a deliberate attempt by Boots to block the Union‟s attempts at recognition, Boots delayed the talks with the Union whilst moving very quickly to formally recognise the BPA and enter into a formal collective agreement. This agreement preserved the nature of their current relationship and the limited rights to collective bargaining (and specifically excluded any bargaining or negotiation rights on the core topics i.e. pay, hours and holiday). The Union subsequently applied to the CAC for recognition. It argued that, because of the limited nature of the collective bargaining rights in the existing collective agreement with the BPA, it was not prevented from making a request for statutory recognition. It argued that the arrangements between Boots and the BPA failed to give effect to the essential requirements of Article 11 ECHR enabling workers to join trade unions to protect their interests through collective bargaining. Boots argued that the CAC should not accept the application, as an established relationship with a listed trade union (the BPA) existed in respect of members of the proposed bargaining unit. Boots had, however, never recognised the BPA for collective bargaining purposes in relation to terms and conditions of employment, pay, working hours or holidays, and had no intention of doing so in the future. The BPA's role was therefore limited to consultation. Article 11 of the ECHR provides that "everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests". Article 11(2) states that no restriction shall be placed on this right

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other than such as prescribed by law and necessary in a democratic society. In the case of Demir and another v Turkey in 2009, the Grand Chamber of the European Court of Human Rights stated that the right to bargain collectively has become one of the essential elements of the right to form and join trade unions under Article 11.

Decision

The CAC agreed with the Union. Although the limited collective bargaining rights did satisfy the requirements of TULRCA on a basic reading, the effect of the BPA agreement was to deny employees the opportunity of having an independent trade union bargaining collectively on their behalf in relation to their terms of employment. Interestingly, the CAC was satisfied that the BPA was a trade union for TULRCA purposes. Contrary to the Union's arguments, the BPA's principal purposes included the regulation of relations between workers and the employer. Further, it was highly relevant that the CO had listed the BPA as a trade union. The BPA had a long-standing relationship with Boots over several decades "and is not an artificial organisation as is sometimes seen in these cases". The CAC was also satisfied that the agreement between Boots and the BPA amounted to a "collective agreement" as defined by section 178 of TULRCA. However, it was common ground that the legislation had to be construed to give proper effect to Article 11 of the ECHR. In this regard, the CAC agreed with the Union that "a right merely to bargain collectively over facilities for trade union officials and consultation machinery" (as under the agreement between the BPA and Boots) does not amount to collective bargaining within the meaning of the Article 11, International Labour Organisation Conventions or EU case law. The CAC therefore found that TULRCA 1992 was not compliant with Article 11, and in accordance with its duty under the Human Rights Act 1998 it "iron(ed) out a wrinkle" in TULRCA by adding the words "in respect of pay, hours and holiday" as a qualifier to "collective bargaining". The effect of this is that an agreement between an employer and a non-independent union providing collective bargaining rights limited to facilities for officials and machinery for collective consultation could not be used to block an application by an independent trade union for recognition in relation to collective bargaining on pay, hours and holidays. The CAC noted, and Boots accepted, that the TULRCA scheme as drafted enabled an employer to prevent an independent union from seeking recognition on pay, hours and holidays where the employer has already recognised a non-independent, so-called "sweetheart" union on "secondary and peripheral issues of machinery for consultation and facilities for union officials". The CAC's robust approach in the above case, adding words to the statutory scheme to give effect to Article 11 of the ECHR, suggests that this is no longer possible. By adopting such a purposive approach to the exercise of statutory interpretation the CAC may encourage Unions to argue cases on the basis of the actual effect of collective bargaining as opposed to the form of collective/recognition agreement. Action points/Comments:

The CAC has made it clear that an existing recognition agreement can only block a request for statutory recognition from another union if it includes the right to collective bargaining on the "core topics" of pay, hours and holiday.

If an employer has already entered into a collective agreement with a "friendly union" sometimes known as a "sweetheart" arrangement they should carefully check the wording of that recognition agreement to ensure it affords the right to collective bargaining on the core topics. If it does not, the door may now be open for an additional (and perhaps "less friendly") union to apply for statutory recognition.

Our experience is that in several sectors the union recognition agreement is often found in a collective agreement between an Employers Association and a recognised union.

Employers who are members of the Employers Association may now have to demonstrate the actual impact of the collective agreement on the terms and conditions of their

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employees. Employers would be wise to gather this information now in anticipation of any formal request for recognition from another union. Back

To watch our HR Network TV programme on this case, click here.

WHISTLEBLOWING

4. Disclosures made after employment ends can be protected under whistleblowing rules

Onyango v Berkeley (t/a Berkeley Solicitors)

Summary The Employment Appeal Tribunal (EAT) has ruled that a disclosure made after employment was terminated could still be classed as a "protected disclosure" under whistleblowing legislation, provided that the worker suffers some sort of detriment, such as a refusal by the employer to provide a reference. Facts Mr Onyango (O) was employed as a solicitor by Berkeley Solicitors (B) between March 2009 and June 2010. In August 2010 he wrote a letter to B's head, stating that he was about to take action against B relating to his former employment, which he followed up with a letter to the Legal Complaints Service (LCS) about B one month later. B then reported O to the Solicitors Regulation Authority (SRA), which regulates lawyers based in England and Wales, citing allegations of forgery and dishonesty. O brought a number of discrimination claims against B, as well as a whistleblowing claim in which he argued that, by reporting him to the SRA, B had subjected him to a detriment. He said that his letters to B and to the LCS were both protected disclosures. Previous case law had established that a detriment occurring after the employment relationship has ended, as a result of a disclosure made whilst employed, is protected, as is a claim against a current employer based on a protected disclosure made while working for a previous employer. After the original ET dismissed all of O's claims, he appealed the whistleblowing claim to the EAT. Decision The EAT had "no hesitation" that disclosures made after the employment relationship had ended could be protected "as a matter of pure construction" of the legislation. Judge Peter Clark said, "Worker and employer are defined ... as those who are or have ceased to be in a contractual relationship of service or core services," he said. "These parties were in that relationship. Since the detriment must occur and be causatively linked to the protected disclosure, it follows that it must come later in time and since the detriment may arise post termination we can see no warrant for limiting the disclosure temporarily to the duration of the employment." He referred O's case to a different ET, which will now establish if O suffered "detrimental treatment" as a result of his disclosure. Action points/ Comments:

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Disclosures made after an employment relationship has terminated are still protected under whistleblowing legislation, providing the whistleblower suffers some sort of "detriment" as a result.

The position under whistleblowing legislation is in contrast with the position under discrimination legislation. In a recent case, the EAT decided that post-employment victimisation is not unlawful under the Equality Act 2010. This means that if an employee suffers a detriment after their employment has ended (such as an employer's refusal to give a reference) as a result of a protected act that they did whilst in employment (such as making a complaint of discrimination) they will not receive protection under the EqA, and the detriment will not be unlawful. (We will cover this case in next month's update).

The House of Lords has recently approved the Government's proposed amends to the Enterprise and Regulatory Reform Bill 2012-13 (ERRB). The amends include a provision which protects whistleblowers from acts of detriment by workers or agents of an employer. This means that employees will be liable for subjecting a co-worker to detriment and employers will also be vicariously liable, unless they can show that reasonably practical steps were taken to prevent the detrimental treatment.

The amended ERRB will also remove the current requirement that a disclosure must be made in "good faith" in order to be able to benefit from whistleblowing protections. Tribunals will instead be given the power to decrease any compensation awarded by up to 25% where a disclosure has not been made in good faith.

In 2012, a provision was included in the ERRB to restrict the definition of qualifying disclosure to disclosures that are "in the public interest".

The government has also indicated that it will launch a call for evidence to ascertain whether there is a need to review the scope of the whistleblowing protection, to potentially protect job applicants. Back

To watch our HR Network TV programme on the new vicarious liability provisions, click here

DISCRIMINATION

5. Exempting a disabled employee from an employer's absence management policy was not a reasonable adjustment Jennings v Barts and the London NHS Trust Summary The EAT found that it was not a reasonable adjustment for an employer to exempt a disabled employee from its absence management policy and that the dismissal of the employee was fair. Facts Mr Jennings (J) worked in IT support for the respondent NHS Trust (the Trust) and had a long history of intermittent absence followed by long-term absence. The Trust eventually dismissed J on the grounds of poor attendance due to ill health. The medical evidence presented at ET confirmed that J suffered from a paranoid personality disorder and major depression. The Trust accepted that this was a mental impairment amounting to a disability. However, the Trust argued that it had not known this at the time of the disciplinary action and dismissal (because of an earlier incorrect diagnosis) and therefore it had had no duty to make reasonable adjustments. The ET disagreed, finding that the Trust had "imputed knowledge" of J's disability.

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The Trust's short term absence policy was a 'Provision, Criterion or Practice' (PCP) which put J, as a disabled employee, whose condition was erratic and recurrent, at a disadvantage because under the policy, employees could not take unplanned intermittent absences without disciplinary action that would eventually lead to dismissal. However, the ET found that the adjustment suggested by J (effectively exempting him from the application of the policy) was not a "reasonable adjustment". J appealed and the Trust cross appealed against the decision that it had "imputed knowledge" of the disability. Decision The EAT upheld the ET's decision, dismissing both the appeal and cross appeal. Whilst J's condition had been initially incorrectly diagnosed as post traumatic stress disorder (as a result of a road accident), there was sufficient information available to the Trust (through its Occupational Health department) that J suffered from a mental impairment which was sufficiently long-standing and which interfered with his day-to-day activities to such an extent as to amount to a disability. Therefore the ET's finding of the Trust's "imputed knowledge" was upheld by the EAT. The EAT upheld the finding that the Trust's policy amounted to a PCP which put J at a disadvantage. However, the EAT agreed with the ET that it was not a reasonable adjustment for the Trust, in the context of a particularly busy IT service, to have tailored its policy and procedures to J's unique situation. The ET noted that it would not be reasonable for the Trust to make modifications when J would have simply remained unfit for and away from work. The ET also took account of the fact that J did not engage in meaningful steps to facilitate a future return to work and that the frequent and persistent absences were having an "enormous" impact on J's colleagues, given the pressure that the department was under. The EAT also clarified that a claimant has to be clear about what adjustments should have been made by the time they go to ET. However, at the time the adjustments are being considered by the employer, the employee does not have to clarify what adjustments they think should be made. Here, the duty is very much on the employer to determine what adjustments are reasonable. Action points/ comments:

This case shows that employers will not automatically be obliged to drastically modify their absence policies and procedures when managing the absence of a disabled employee.

Similarly, a tribunal in another recent case (Olusoga v Homerton University Hospital NHS Trust) held that employers are not automatically obliged to disregard all disability-related absences when recording and controlling employees' absences under scoring systems such as the Bradford factor (read more).

There are limits to what is a "reasonable adjustment" for an employer to make when managing a disabled employee's absence.

The purpose of a reasonable adjustment is generally to return an employee to work from absence, or to help keep the employee at work. It is not to prolong absence. However, employers should note that each case will turn on its own facts and that it might be a reasonable adjustment to modify the application of an absence policy to some extent.

Whether the adjustment is reasonable will vary according to factors such as: the extent to which the adjustment is practical and effective in removing the disadvantage, the financial costs involved, the alternative options and the size, nature and resources of the business. Back

6. Enhanced redundancy payments to older workers were justified Lockwood v Department of Work and Pensions and another Summary

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The EAT found that enhanced redundancy payments made to workers over the age of 35 were not discriminatory; the payments were objectively justified on public interest grounds, because they reflected the extra problems older workers face when losing their jobs. Facts Miss Lockwood (L) began working for the Department of Work and Pensions (DWP) as an administrative officer in October 1999. In April 2007 her position was made redundant, and she applied for redundancy under the Civil Service Compensation Scheme (CSCS). Under the scheme, as a 26-year-old leaver with almost eight years service, she was entitled to a payment of nearly £11,000. However, if she had been over the age of 35 she would have been entitled to a further sum of over £17,000. L brought a claim for direct age discrimination, based on this disparity in redundancy pay. L's claim was dismissed by an ET on the grounds that there was a material difference between her age group (under 35) and the comparator age group (over 35), meaning that it was not appropriate to compare the treatment of the two groups. Further, the ET found that the less favourable treatment of the under 35 age group was objectively justified. L appealed to the EAT. Decision The EAT dismissed L's appeal, upholding the ET's decision on both grounds. The DWP had provided statistical evidence which indicated the comparative difficulty suffered by the older workers losing their employment (finding another job; family financial commitments etc.) when compared with those in the younger age group. The ET had not erred in relying on this evidence or in finding that there was a material difference between the two age groups. Further, the EAT upheld the finding that the less-favourable treatment of L was objectively justified. The judge referred to the case of Seldon v Clarkson Wright and Jakes (where the Supreme Court held that a firm of solicitors could force one of its partners to retire for the public interest aims of "inter-generational fairness" and "dignity"; providing that the age specified was a "proportionate means" of achieving those aims). The EAT held that the DWP had identified a legitimate aim (to provide a financial cushion for older workers to reflect the extra difficulties older workers face when losing their jobs) and that the enhanced redundancy payments for older workers were a proportionate means of achieving that aim. Action points/ Comments

A number of employers apply enhanced redundancy schemes of this sort, although they are perhaps more common in the public sector and in large 'institutional' employers, such as banks.

Under age discrimination rules, employers are able to make more generous redundancy payments to older workers as long as the way in which the payments are calculated reflects the statutory redundancy scheme.

If the enhanced scheme does not reflect the statutory position it could potentially be unlawful as it will discriminate against younger workers, unless the employer can objectively justify the existence of the scheme.

The EAT's decision in this case provides "further guidance" for employers on the validity of these schemes.

This decision is good news for employers who may have been concerned that they would be forced to extend their more generous redundancy terms to the entire workforce.

The flip side is that it will be more difficult for businesses who have been seeking to negotiate a way out of their enhanced redundancy schemes, by saying that they may be age discriminatory, to continue to run that argument.

Most of the reported cases on this point have now concluded that, for a variety of reasons, these schemes are not unlawful.

The Lockwood case is yet another confirmation of that view. Back

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HUMAN RIGHTS/CONFIDENTIALITY

7. Freedom of expression & employee confidentiality – EAT gives guidance on the balance to be struck Hill v Governing Body of Great Tey Primary School Summary In upholding an appeal against a Polkey deduction, the EAT provided helpful guidance on the approach that should be taken to Article 10 (Freedom of Expression) of the European Convention on Human Rights (ECHR) and how the balance should be struck between freedom of expression and restrictions on the right, such as employee confidentiality. Facts Mrs Hill (H) was a mid-day dinner assistant at Great Tey Primary School (the School). H told a child‟s parents that the child had been tied to a railing in the playground and whipped across the legs by other pupils. H was suspended and complained to the press about the suspension. In doing so, H confirmed what she had told the parents. The School found that H had breached confidentiality by speaking to the child's parents and to the press and that H had seriously damaged public and local community confidence in the School. H was dismissed. Her claim that she was dismissed for making a disclosure in the public interest was rejected, but her dismissal was held to be unfair on procedural grounds. At the subsequent remedy hearing, the ET made a "Polkey deduction" to H's compensation, and awarded her £49.99. In reaching its decision, the ET took account of H's right to freedom of expression and stated that the right "must be exercised judiciously, responsibly and not recklessly". In making the comment(s), H had acted for her own personal gain, rather than in the child's best interests; the dismissal was within the band of reasonable responses and, if proper procedure had been followed by the School, H would have been fairly dismissed after two months. H appealed against the Polkey deduction and also argued that the ET had taken an incorrect approach to Article 10 of the ECHR. Decision The EAT upheld H's appeal against the Polkey deduction and H's argument that the ET had taken an incorrect approach to Article 10 of the ECHR. In stating that H's right to freedom of expression "must be exercised judiciously, responsibly and not recklessly", the ET had wrongly approached Article 10, paraphrasing the qualifications to the right, rather than applying the legislative words. The EAT provided guidance on how the ET should have approached the application of Article 10 in this case:

1) Could the events that had occurred fall within the ambit of the right to freedom of expression? 2) If so, the School, as a public body, would be bound to respect the exercise of that right, unless it could be qualified by Article 10 (2). 3) Does Article 10(2) apply? In answering this question, the ET should: identify the aim which the restriction on free speech sought to serve. In this case, two

aims were potentially legitimate – the protection of the reputation or rights of others, and preventing the disclosure of information received in confidence

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satisfy itself that the restriction or penalty imposed in the light of that aim was one

prescribed by law. That does not mean, in the UK context, that it must be provided for by statute: a common law right will suffice. A contractual term requiring respect for confidential communications would, for instance, be sufficient. So, too, would a common law right to confidentiality

if so, consider if the restriction or penalty was “necessary in a democratic society”. This

involves looking to see whether the measure concerned was appropriate to the legitimate aim to which it was said to relate, and that the extent of the interference which it brought to the exercise of the right was no more than proportionate to the importance of the particular aim it sought to serve.

The ET had not clearly identified what was confidential about the information that was supplied, nor to whom it was confidential. Further, the ET did not adopt the structured approach to Article 10, outlined above. Instead, the ET applied a "homespun" version of the qualifications to the right, which meant that it may have placed more weight upon factors suggesting that H had been blameworthy than it would have done if it had carefully balanced her right to free speech against her obligations to keep matters confidential. The ET had also wrongly taken a "review" rather than "predictive" approach to Polkey; it had asked whether the dismissal would have been fair if the school had dismissed H following a fair procedure; it should have gone on to assess the chance that the school would have dismissed H. Action points/ Comments:

Although not a claim for breach of the right to freedom of expression, the case provides helpful guidance on the approach that should be taken by both employers and tribunals in determining whether Article 10 applies and whether, on the facts, it is qualified by a justifiable restriction such as employee confidentiality.Back

"NICE TO KNOW" HUMAN RIGHTS

8. Government's unpaid 'back to work' schemes unlawful but not in breach of human rights

R (Reilly and Wilson) v The Secretary of State for Work and Pensions Summary

The Court of Appeal found that the Government‟s unpaid back-to-work schemes are unlawful but do not amount to forced labour in breach of job seekers' human rights. Facts Two job seekers claimed that the Government‟s schemes amounted to "slave labour" and were in breach of their human rights. Miss Reilly (R) was a geology graduate who was in receipt of Job Seeker‟s Allowance (JSA). She was required, under the Government‟s Work Academy Scheme, to undertake an unpaid placement with Poundland which consisted of six weeks unpaid work. Mr Wilson (W) was in receipt of JSA and was told by his Jobcentre Plus adviser that he was required to take part in the Community Action Programme (CAP) which would require him, after three months unemployment, to undertake 30 hours per week of unpaid work for a period of six months.

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The High Court rejected their claims, finding that the schemes were not in breach of their human rights. Decision R and W appealed to the Court of Appeal who considered the legality of the two schemes, which were established under the ambit of the Jobseeker‟s Allowance (Employment, Enterprise and Skills) (ESE) Regulations. The Court did find the schemes to be legally flawed but did not find that they amounted to „forced labour‟. Rather, the Court found that the ESE Regulations do not comply with the Act of Parliament which gave the Department of Work and Pensions the power to introduce such schemes. The Court ruled that the Work and Pensions Secretary had acted unlawfully by not giving the unemployed enough information about the penalties they faced and their rights to appeal against being made to work on an unpaid basis. However, Appeal Court judges backed the High Court‟s earlier view that requiring jobseekers to participate in the scheme did not breach their human rights. Action points/Comments

Whilst the schemes were found to be legally flawed, they are not a breach of human rights.

These schemes received negative press attention and public pressure last year and the news that they are not in breach of participants' human rights will be welcomed by those employers who have participated.

Those employers who do engage in such schemes can continue to do so, as the claims are against the Government rather than the individual companies which have participated.Back

DISCRIMINATION

9. Requirement for law degree not objectively justified and does amount to age discrimination

Homer v Chief Constable of West Yorkshire Police

Summary

In May 2012, the Supreme Court held that the requirement for employees to have a degree in order to be promoted to the highest grade of the employer's career structure, did amount to indirect age discrimination, unless objectively justified. Following a remission from the Supreme Court, an ET has now ruled that the requirement was not objectively justified in this case.

Facts

Mr Homer (H) was a legal advisor for West Yorkshire Police (the Police) and had previously been a police officer for 30 years. At the time of his appointment as a legal advisor, a law or equivalent degree (which H did not have) was not required providing candidates had "exceptional experience/ skills in criminal law, combined with a lesser qualification in law". H did meet this latter requirement. A new structure was introduced, under which employees were required to have a law degree to reach the highest of three levels. As H was 62 and it would have taken him four years to obtain a law degree, he would not have been able to apply for promotion to the highest grade before reaching retirement age. H argued that the requirement of a law degree was a provision, criterion or practice (PCP) which put people of his age group, including him, at a particular disadvantage compared with others who were not in his age group and therefore amounted to indirect age discrimination. The case reached the Supreme Court which found that, because people in H's age group (60-65) would not have enough time to obtain a law degree before retiring, they were put at a particular disadvantage by the requirement, as was H. The requirement was therefore indirectly

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discriminatory unless it could be objectively justified as a proportionate means of achieving a legitimate aim.

Decision

Upon remission by the Supreme Court, the ET found that the requirement was not objectively justified and therefore H's claim for indirect age discrimination succeeded. The Police had a 'legitimate aim' of recruiting and retaining employees of an appropriate calibre, to improve the quality of service offered. Further, the introduction of the new structure itself was an appropriate and necessary means of achieving that aim. However, the application of the scheme and the requirement for a law degree to existing legal advisers was not reasonably necessary or appropriate. The ET accepted that an advisor with a law degree was likely to be a better calibre than one without. However, there was no evidence that clients or prospective clients requested or insisted on being given advice only by those with a law degree. Further, as regards the 'retention' of employees, there was no evidence to suggest that those on level 1 and 2 who did have a law degree, would be likely to leave and move to competitors if an exception was made to allow existing staff without a law degree to progress to level 3. Rejecting the Police's arguments to the contrary, the ET found that it would have been practicable to introduce the new grading structure whilst exempting existing staff from the requirement to obtain a law to degree in order to progress.

Action points/ comments:

Even though a PCP might be a proportionate means of achieving a legitimate aim, its strict application to existing employees might not be considered proportionate.

Employers faced with a similar situation, where the application of the policy is prima facie indirectly discriminatory, should therefore consider whether it would be practicable and reasonable to apply the policy more leniently to existing staff in order to follow a less-discriminatory course of action.

In this case, a key issue for the ET was that the Police had overstated the problems of applying a more lenient rule to existing staff. Back

10. Comment about the Pope did not amount to harassment on the grounds of religion

Heafield v Times Newspaper Ltd

Summary

The EAT held that the ET in this case was "unarguably correct" to find that a comment about the Pope, shouted across a newsroom, did not amount to religious harassment.

Facts

Mr Heafield (H) is a practising Catholic who worked for The Times as a casual sub-editor. Before publication, each article would be cleared by Mr Wilson (W), a senior sub-editor and H's line manager. Before being assigned a headline, each article would be assigned a working title to allow a mock-up of the story to be made. When W realised he had not yet received an article which had been given the working title "The Pope" he shouted across the newsroom, "Can anybody tell me what's happening to the f***ing Pope?" H complained to the Chief Night Editor three days later, stating that he found the comment to be offensive, unnecessary and blasphemous. The Chief Night Editor did not investigate the complaint, as he felt that no further action was necessary and H did not pursue the matter further. When H received the rota for the following month, he discovered he had not been given any shifts. The newspaper claimed that it was under increasing pressure to reduce the number of casual worker shifts, although the casual workers had not been informed at the time. H decided he could no longer work for The Times and brought claims for harassment and victimisation on the grounds of religion and belief.

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The ET dismissed H's claims. Whilst the comment might have upset H, on the evidence, it was not reasonable for it to have had the effect of creating a hostile, intimidating, degrading, humiliating or offensive environment to H. In reality, the subject of the comment was the whereabouts of the article and not the Pope himself. The ET rejected H's claim that he had been victimised for making a complaint of religious harassment; finding that the reduction in shifts offered to casual workers was applied across the board and H had therefore not established a prima facie case of victimisation.

Decision

The EAT upheld the ET's decision, dismissing H's appeal. The EAT noted that in a perfect world H should not have used the expletive in the context of a sentence about the Pope. However, people are not perfect and a reasonable person in H's position would have understood that and made allowance for it. The comment was evidently not ill-intentioned or anti-Catholic and it was not reasonable for H to feel that his dignity had been violated or an adverse environment created by the comment. Given this finding, H's claim for harassment failed and the EAT did not go on to consider whether the comment was made "on grounds of religion".

Action points/ Comments:

This case further highlights the importance of context in harassment claims.

Whilst employers often feel that courts assess harassment too subjectively, this is a reminder of the objective element to the test and the importance of the circumstances surrounding the allegedly discriminatory treatment and/or comments. Back

FEEDBACK

Please provide any feedback on this update by emailing sue.gilchrist@pinsentmasons.com, maria.passemard@pinsentmasons.com or anna.hall@pinsentmasons.com. This will help us to shape future editions of this Monthly case law update.