• 12 Working Days of Christmas: An Employment Review of 2018
  • December 11, 2018 | Author: Caroline Mathews
  • Law Firm: Withers LLP - London Office
  • As we approach the end of the year, where the days get shorter and the nights get colder, we take a look back at some of the more interesting employment law talking points of the last 12 months and forward to what the new year holds in store.

    With festive spirit and in the context of the beloved yuletide ditty, the 12 Days of Christmas, follow us as we release a short blog on each of the next 12 working days.

    On the fourth day – Four whistleblowing birds

    We have had statutory protection for whistleblowers for nearly 20 years. However, the legislation does not work well and, over the last year, the Courts have been busy clarifying key aspects of the rules.

    In Jhuti, the Court made whistleblowing more difficult for Claimants. It held that when determining the ‘reason for the dismissal’, the tribunal need to consider what knowledge the dismissing party had in their possession at the time of the dismissal and taking in to account this knowledge, did they believe their actions to be appropriate. That meant that where another co–worker had tried to get the Claimant fired because she had made protected disclosures to her line manager, this could not be attributed to the employer, provided the person making the dismissal decision was not aware of the behaviour that the co-worker was using to get the Claimant fired.

    This case highlighted the need for having information barriers to ensure that anyone dealing with a disciplinary issue is also not the same person to whom a protected disclosure is made and has been dealing with that, so that that information cannot taint a decision. So employers would do well to keep their dismissal decision makers at a safe distance from any protected disclosures made by an employee.

    By contrast, the Court opened up a new head of claims for whistleblowers in Osipov. Here the Court held that co-workers who were involved in the decision to dismiss could be personally liable for the losses that the Claimant suffered in consequence of the dismissal. The Court commented that Claimants were unlikely to sue co-workers very often. We disagree and believe that there will be an immediate increase in this type of claim.

    In the Chestertons case, the Court looked at whether (and when) a whistleblower’s disclosure, which relates to a breach of their own contract of employment, can be in the public interest as well as in the personal interest of the employee. The Court concluded that a disclosure relating to a breach of an employee’s own contract of employment may still be held as made ‘in the public interest’ if a tribunal considers that the whistleblower held a reasonable belief that the disclosure was made in the public interest.

    Finally, the Court grappled with a tricky distinction in the case of Kilraine, specifically whether the disclosure comprises of factual information or an allegation. They concluded that the distinction was too fine and an allegation could too constitute a disclosure.

    These cases, spread over the past year, have clarified some of the finer points surrounding whistleblower’s rights. But, whilst some points are a little clearer, there is still plenty of murky water in the law. Hopefully, 2019 will shed more light on what we can only express is one of the more complicated areas of employment law.

    Meriel Schindler, Partner, London

    On the third day – Three French British hens

    The 12 Days of Christmas is thought to be French in origin and, whilst the etymology behind the carol’s lyrics is unknown, one interpretation has suggested a deeper, spiritual meaning beneath the carol’s light-hearted façade. This interpretation sees our three ‘hens’ standing for ‘Faith, Hope and Love’ and, as we face the current uncertainty surrounding the terms of our withdrawal from the EU as well as the growing possibility of a second referendum, these three French hens are exactly what we need

    Despite the lengthy debates surrounding Theresa May’s Brexit deal, little has actually been said about its implication for workers’ rights. EU law – which covers everything from discrimination at work to equal pay and paid holidays – has introduced rights that did not previously exist in Britain and, via its membership of the EU, Britain is subject to a European court that, on the whole, interprets the law more favourably for workers than British courts do. So what is going to happen following Brexit?

    When (if) it leaves the EU, the UK will enter into a transition period during which the status quo will be maintained. Following this, we enter into either a backstop arrangement or into a new arrangement with the EU. The backstop arrangement currently contains the UK’s comforting commitment not to reduce employment rights below those in place in the EU. However, this statement currently appears to be unenforceable. The alternative new arrangement contains little detail about workers’ rights save the implication that the more integrated the UK is with the EU, the more the UK will have to obey EU employment law.

    Clearly this situation remains one to watch closely into the new year – let’s hold onto our three hens as we do so.

    Katie Williams, Associate, London

    On the second day – #MeToo turtle doves

    Although the phrase ‘Me Too’ has been in use since 2006 and was revived in late 2017, 2018 was arguably the year it fully took flight in the UK, as #MeToo. A spate of very public scandals and allegations swirled around institutions from the House of Commons to the (now defunct) charity The Presidents Club, amongst others, and allegations continued to emerge against specific individuals.

    One strand of these stories was a debate about gagging clauses (also known as confidentiality provisions or non-disclosure agreements/NDAs). Parliament’s own Women and Equalities Committee criticised (in its report on Sexual Harassment in the Workplace*1) the unethical use of NDAs by some employers and expressed concern that NDAs were being used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye, for fear of bad publicity.

    Respondent employers and claimant employees both grappled with these issues. There is near-universal condemnation of NDAs being used to cover up serious misconduct, including (but not only) criminal acts. There is also a widespread view that NDAs reflect and perpetuate an imbalance of power, the economically stronger party muting and continuing to control the weaker. However, there remains a strand of opinion arguing that, in certain cases and contexts, there can be value to all parties – employer and employee alike – in resolving issues between them swiftly, and so avoiding the cost and stress of litigation and ongoing publicity for either party.

    We reflected on some of these issues back in June, but they seem likely to remain with us into the New Year as the Committee has now launched a specific inquiry into NDAs, to examine wider issues relating to their use in discrimination cases*2.

    Hugh More, Special Counsel, London

    On the first day – A partridge in a GDPR tree

    Just like our friend the partridge in the song, GDPR seems to have appeared at least once every day over the last year, even months before the legislation was implemented on 25 May 2018.

    As all employers’ process data of their employees, the implementation of GDPR has had a wide reaching effect. If an employer was to write a Christmas wish list of things to work on to ensure that their business was in top shape for the new year, reviewing (if they had not already) the way in which they process employee data, the reasons for why they process the data and the policies they have in place for collecting, transferring and storing employee data would be at the top of that list. Employers should also review their data protection policies and provide refresher training on data protection, to ensure that all employees, especially those who handle personal employee data, are aware of the new regulations.

    The Morrisons case, in which the supermarket was found to be liable where an employee deliberately committed a data breach (for malicious reasons), has stressed just how costly the new regulations can be to an employer. By Christmas Day, seven months will have passed since its implementation. But, as this brief note highlights, employers should not just sit back and enjoy mince pies and mulled wine – they should be aware that this is an ongoing process that requires regular review, and there are still steps that they should take to ensure compliance with GDPR in the New Year.