ELiAction Monthly News: August 2017
Welcome to the Summer edition of the Employment Law in Action newsletter providing you with useful information regarding changes to employment legislation, best practice and latest case information.
Whistleblowing: what it is, what protection it gives and when an employee can rely on that protection
Whistleblower protection gives workers the right to complain to an Employment Tribunal if they suffer a detriment/unfair dismissal on the grounds that they have made a ‘qualifying disclosure’ which amounts to a ‘protected disclosure’ (i.e. blown the whistle) (Part 1VA Employment Rights Act 1996).
What is a qualifying disclosure? For a disclosure to be ‘qualifying’, a worker must disclose information to an employer or certain other ‘prescribed persons’
When is a ‘qualifying disclosure’ also a ‘protected disclosure’? For a disclosure to be protected the information must, in the reasonable belief of the worker making the disclosure, be made in the public interest and tend to show a specific type of wrongdoing (e.g. where the health or safety of any individual has or is being endangered).
Can a disclosure relating to a breach of the worker’s own contract of employment be in the public interest? The ‘public interest’ requirement was only introduced in 2013 and the point argued in the recent Court of Appeal case Chestertons v Nurmohamed, is whether whistleblowing in respect of a breach of employment contract will meet this test. The Court of Appeal decided that the answer is (not always but it can be), depending on the circumstances and it endorsed some practical guidance (see Case Law article below).
Do you pay national minimum wage to employees who are permitted to sleep at work?
As reported in our May newsletter, the EAT has recently considered whether ‘sleep-in’ time counted as ‘time work’ for the purpose of the National Minimum Wage Regulations and set out a number of relevant factors for employers to consider.
Now, the HMRC who is responsible for enforcing the Minimum Wage Regulations, has updated its Policy on Enforcement, prosecutions and naming employers who break National Minimum Wage law to provide that no financial penalty should be imposed in cases of underpayment attributable to the treatment of time when the worker was working and was permitted to sleep in a pay reference period before 26th July 2017.
The issue is whether the employee is ‘working’, a question not as simple as it seems but reviewing your working practices in light of the relevant factors and the Government guidance, Calculating the minimum wage, is the best guidance we currently have.
Whilst the HMRC is turning a blind eye to activities prior to July 27th 2017, an employee who is not paid the NMW can of course bring a claim for unlawful deductions from wages under section 13 of the Employment Rights Act 1996 within three months of the deduction.
Employment tribunal and EAT fees declared unlawful- what next?
Employers will not have missed the news that the Supreme Court has held that tribunal fees were set at such a level as to prevent access to justice and accordingly unlawful from the outset. The court found that there was no evidence to establish that the introduction of fees had achieved the aims of increasing settlements and decreasing weak claims.
As a result, the Employment Tribunals have stopped taking fees and fees already paid will need to be reimbursed, although the process for this is not yet clear. Another question is whether Tribunals will take the situation into account when considering whether to extend the time limits for bringing claims.
A useful summary of the judgment can be found here.
Parental Bereavement (Pay and Leave) Bill introduced
The Parental Bereavement (Pay and Leave) Bill 2017-19 was introduced into the House of Commons on 19 July 2017 to give employed parents a statutory right to paid time off on the death of a child. The Bill will need to go through a number of stages before becoming law but an entitlement to child bereavement leave was included in the Conservative manifesto. The second reading of the Bill is scheduled for October.
Currently, time off in such circumstances is limited to the right, under the Employment Rights Act 1996, to take a ‘reasonable’ amount of unpaid time off work to deal with an emergency involving a dependant, including making arrangements following the death of a dependant.
Data Protection: How far do you have to go?
The ICO has updated its guidance in relation to the “disproportionate effort” exception.
Following The Court of Appeal judgments earlier this year, the Information Commissioner’s Office has updated its ‘Subject Access Code of Practice’, ‘Data Protection Guide’ and ‘CCTV Code of Practice’.
What is the “disproportionate effort” exception?
When served with a Subject Access Request (SRA) (e.g. from an employee), the data controller’s obligation to supply a copy of the relevant information ‘in permanent form’ does not apply where the supply of such a copy is impossible or would involve ‘disproportionate effort’ (section 8(2) of the DPA). The data controller is often the employer.
How far does the exception reach?
The Court of Appeal has explained that there is scope for assessing whether complying with a request would result in so much work or expense as to outweigh the requester’s right of access to their personal data.
That said, the guidance makes clear that the burden of proof is on the data controller to show that all reasonable steps have been taken to comply with the SAR, and that it would be disproportionate in all the circumstances of the case to take further steps. Even if the data controller can show that supplying a copy of information in permanent form would involve disproportionate effort, they must still try to comply with the request in some other way.
Can ‘Conduct’ be a fair reason for dismissal if the employee was not at fault?
In the case of JP Morgan v Ktorza, a bank worker was dismissed for a working practice which he said he had not been told not to do i.e. he was not culpable for his actions.
In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the principal reason for the dismissal is a potentially fair reason (s.98(i) and (2) ERA). Conduct is a potentially fair reason. It is then for the court to consider whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee (s.98(4)).
In this case, the Employment Tribunal had found that the dismissal was unfair. However, the EAT emphasised that an employer is not required to show that the conduct in question is actually culpable. The issue of culpability and fairness comes in at the next stage (s.98(4)), when determining whether the employer acted reasonably in treating the conduct as sufficient reason for dismissal.
Can whistleblowing in respect of a breach of employment contract meet the ‘public interest’ test?
The Court of Appeal has handed down judgment in Chestertons v Nurmohamed. The case concerned an employee who believed his employer was deliberately misstating £2-3million of actual costs and liabilities which had the result of negatively affecting the earnings of 100 senior managers, including himself.
The appeal was the first time that the Court of the Appeal has considered the 2013 amendments to the protected disclosure “whistleblowing” scheme under the Employment Rights Act 1996 which requires that a disclosure has to have been made, in the reasonable belief of the whistleblower, ‘in the public interest’, S.43(B)(1) ERA.
In making its assessment, the Court endorsed guidance comprising four factors to be taken into consideration:
- The numbers in the group whose interests the disclosure served.
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. A disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect.
- The nature of the wrongdoing disclosed. A disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people.
- The identity of the alleged wrongdoer. The larger or more prominent the wrongdoer (in terms of size of its relevant community), the more obviously should a disclosure about its activities engage the public interest, although this should not be taken too far.
In giving comment and advice in the newsletter, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss we would be pleased to assist you.
If you would like advice on how any of the above articles apply to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
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