While the focus has been on the impact of the coronavirus pandemic, HR professionals have still had their fair share of employment law cases to keep track of in 2020. We highlight seven noteworthy cases from 2020 that employers should know about.
1. Employer not vicariously liable for rogue employee’s data leak
WM Morrison Supermarkets plc v Various claimants (Supreme Court, 1 April 2020)
In this landmark data breach group action, a rogue employee deliberately leaked online the personal data of almost 100,000 colleagues.
The Supreme Court found that the employee was not engaged in furthering his employer’s business, but was pursuing a personal vendetta for facing disciplinary proceedings some months earlier. Consequently, the court held that the employer was not vicariously liable for the data breach.
While employers will welcome the decision, they must bear in mind that each vicarious liability case is fact-specific.
2. Senior lawyer’s homophobic comments on radio breached EU law
NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford (ECJ, 23 April 2020)
The European Court of Justice (ECJ) held that a senior lawyer’s comments on a radio show that he would not wish to recruit homosexual people breached EU law.
This was despite the fact that the lawyer’s firm was not recruiting, or planning to recruit, at the time.
While this case concerns homophobic comments, it highlights the importance of providing all staff with robust and proactive training on wider diversity and inclusion issues.
3. Dismissal of teacher over indecent images of children was unfair
The Employment Appeal Tribunal’s (EAT’s) conclusion that the dismissal of a school teacher for possessing indecent images of children was unfair might surprise employers.
However, the EAT focused on the employer’s failure to cite reputational damage as a potential ground for dismissal.
This case is a stark reminder that different considerations apply where the potential ground for dismissal is reputational damage, as opposed to misconduct. Employers should make sure that they provide sufficient notice of all grounds on which an employee may face dismissal.
4. Discrimination arising from disability: focus on employer’s thought processes
Robinson v Department for Work and Pensions (Court of Appeal , 7 July 2020)
Here, the Court of Appeal clarified the correct approach to establish the cause of the unfavourable treatment in discrimination arising from disability claims. The Court confirmed that the focus must be on the reasons for the treatment, which requires an examination of the thought processes of the decision-makers concerned.
As the claimant’s disability meant that she found it “impossible” to use her employer’s software, the employer had moved her temporarily to a paper-based role until it had resolved the technical difficulties.
The Court held that even if moving her to a paper-based role as an interim measure was unfavourable, it allowed her to remain at work and at the same pay grade. As a result, the employer’s actions were reasonable and proportionate.
This case is an important reminder to train staff on disability discrimination as their thought processes may be subject to close inspection by a tribunal.
5. Employee who had paranoid delusions about Russian gang not disabled
Sullivan v Bury Street Capital Ltd (EAT, 9 September 2020)
In this case, the employer dismissed the claimant for issues relating to his timekeeping and attitude. The claimant, who suffered from paranoid delusions about a “Russian gang problem”, claimed disability discrimination.
More disability discrimination cases
However, the EAT decided that he was not disabled under the Equality Act 2010. His doctor had based his opinion that a disability existed on the claimant’s account and not on “factually accurate descriptions of independently observed reality”.
The EAT observed that it was impossible to link every instance of the claimant’s poor timekeeping or record-keeping to his impairment because he had a relaxed attitude to these matters before the onset of his delusional beliefs.
6. Keeping within pay constraints justified discriminatory pay policy
Heskett v Secretary of State for Justice (Court of Appeal, 11 November 2020)
In this long-running case, the Court of Appeal confirmed that the employer’s need to reduce expenditure due to budgetary constraints imposed by the Government is a legitimate aim, and the employer’s discriminatory pay policy is a proportionate means of achieving that aim.
Here, changes to the employer’s pay progression policy meant that newly appointed probation officers took 23 years to progress to the top of the pay scale, instead of the previous seven or eight years.
A probation officer brought a claim of age discrimination, arguing that the pay progression policy indirectly discriminated against younger probation officers.
More age discrimination cases
The Court’s decision will be of particular interest to public-sector employers that have to balance cost savings with avoiding discrimination.
7. Gig economy: EU health and safety rights extend to workers
In this potentially very important case for gig economy workers, the High Court held that the Government has failed to implement properly EU health and safety Directives by excluding workers from UK legislation.
In particular, the High Court ruled that provisions in the Employment Rights Act 1996 should give workers, and not just employees, protection against detriment for taking steps in response to serious and imminent danger. The Court also accepted that workers should also be covered in the UK’s personal protective equipment (PPE) laws.
While the decision does not provide guidance on whether or not employers are doing enough to protect their workers from the risk of COVID-19 infection, businesses should review their health and safety arrangements for workers.
