Employment Law Update, April 2018: Springtime Special

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Employment Law Update, April 2018: Springtime Special

The tide has changed. To keep you ahead of the game and avoid claims I have identified recent key developments:

Discrimination

 

Cancer in situ is a deemed disability; watch out

Under the Equality Act 2010 (“EA 2010”) cancer is automatically a disability. However, the extent of this was tested in Lofty v Hamis t/a First Café.

Mrs Lofty (“L”) has a lentigo maligna, a pre-cancerous lesion, which could result in skin cancer. L’s GP confirmed this meant that cancerous cells had been found in the top layer of L’s skin and that she had a cancer in situ. It was a type of early stage skin cancer called melanoma. The employer argued that any cancer in situ was not cancer in the strict sense, because they cannot spread to other parts of the body as they are not invasive.

 

The Employment Appeal Tribunal disagreed. The EA 2010 draws no distinction between any in situ cancer and invasive cancer. L was only required to show that she had cancer. The evidence was clear that there were cancerous cells in the top layer of her skin, therefore she had proven she was disabled.

>£47k award for transgender discrimination

An Employment Tribunal (“ET”) has ruled that Miss Souza (“S”) had been subjected to harassment due to her gender reassignment. This included colleagues: outing her; calling her “Alexander”; spraying scent near her; and making comments like “it’s a man’s voice”. The ET also found that her employer, Primark, had subjected S to direct gender reassignment discrimination by failing to investigate her concerns and deal with them appropriately, i.e. by not giving S the outcome of her grievance and failing to advise her of the right of appeal.

 

The discrimination sustained led to an award being made by the ET to S for the sum of some £47k or so. The ET also recommended that an appropriate policy be adopted by Primark and communicated on the treatment of transgender staff, together with training on its application.

 

Data Protection/GDPR/Privacy/Monitoring

£130k ICO fine for easily overlooked mistakes by an employer

Humberside Police (“Police”) has been fined £130k by the ICO after a video interview went missing.

 

Facts?

3 unencrypted disks and accompanying paperwork identifying the victim and the accused were left in an envelope on an officer’s desk. The bundle included names, dates of birth, signature and details of the alleged crime, the victim’s mental health and the suspect’s address. Cleveland Police were expected to receive the information in the post but it is not known if the package was ever sent.

The information was never recovered. It is still classified as missing.

 

Are there any key lessons to learn?

  • The Police failed to encrypt the disks before sending or intending to send the material.
  • The Police failed to maintain a detailed audit trail of the package.
  • When transferring information, the Police should have considered the consequences of it being lost before going ahead.
  • Staff training is vital and for that to be meaningful, proper policies and procedures need to be in place so that staff know what is expected.

 

ICO publishes introduction to the Data Protection Bill - a useful starting point

The ICO has published an introduction to the Data Protection Bill (which will ultimately replace and expand upon the General Data Protection Regulation, which will itself replace the Data Protection Act 1998, and comes into force on 25 May 2018). It’s worth a read. Part 1 sets out explanations of definitions used in the Bill and the general processing regimes can be found in Part 2. The ICO will produce detailed guidance once the Bill has been enacted. At present, it is not known when the Bill will come in to force. Watch this space!

 

Essential regulations dates to note – it’s a must

• The Data Protection (Charges and Information) Regulations, which sets out the new annual fees payable by data controllers to the ICO, will come into force on 25 May 2018.

Reflecting advances in technology etc. the following are not yet in effect but it’s important to know they’re on the horizon:

• The Investigatory Powers Act 2016 (“IPA 2016”) will replace the Regulation of Investigatory Powers Act 2000, which regulates certain types of monitoring and communications interception. IPA 2016 received royal assent on 29 November 2016.

• On 18 December 2017, the draft Investigatory Powers (Interception by Business etc. for Monitoring and Record-keeping Purposes) Regulations 2018 were published. It will replace the current Telecommunications Regulations 2000, which sets out when it is lawful to intercept communications (including those concerning employees) without consent.

• The existing Privacy in Electronic Communications Regulation (“PECR”) governs privacy rights in relation to electronic communications, including marketing. Changes to PECR (including its replacement with a new ePrivacy Regulation – still in draft form; it widens the scope and deals with technological advances (such as instant messaging) and proposes larger fines and earlier notification to ICO for any breach).

We will keep you informed.

 

Dismissals & Redundancy

Use of secret recordings; makes sense

Secret recordings may be admissible if used to understand a dismissal decision; Fleming v East of England Ambulance Service NHS Trust. Mr Fleming (“F”) claimed disability discrimination and unfair dismissal. He sought to rely on his covert recording of conversations involving panel members during breaks in a disciplinary hearing. The Employment Appeal Tribunal held that if it is in the public interest to hear any relevant evidence then it should be heard. Further, to properly assess the evidence a Tribunal must hear all the relevant evidence.

 

Inappropriate reference concerning mitigating circumstances = some £30k award

An employee who was dismissed for attending a gin festival to apparently “get away from it all” whilst off sick with stress following the death of 3 friends has been awarded circa £30k for unfair dismissal.

 

In a nutshell the Employment Judge described the employee’s treatment as follows:

It was egregiously unfair. None of the decision-makers appeared to have engaged seriously with the circumstances leading to Mr Reid’s absence from work or his explanation for going to a gin festival, or for the Facebook postings. Management actions were “remarkably insensitive” and showed a “flagrant disregard” for fairness.

 

Failing to consider bumping in any redundancy situation may make dismissal unfair

In Mirab v Mentor Graphics (UK), Dr Mirab (“M”) was made redundant; his role as a Sales Director was no longer required. An Employment Tribunal (“ET”) decided the employer had sufficiently considered alternative roles and, specifically, it had not been required to consider the displacement of a role/bumping (i.e. in this case placing M into a lower account manager role). This was because such an obligation only arose if M had raised it. The Employment Appeal Tribunal disagreed. Case law clearly stated there may be situations where it might be reasonable for an employer to consider a vacancy that might be created, possibly at the expense of another. That applied even though there was no rule that an employer must always consider bumping to dismiss fairly.

 

References – when it counts

An employee brought a claim for negligent misstatement against his former employer, in respect of a reference; Hincks v Sense Network Ltd. The reference contained opinions formed following an investigation into the employee’s conduct. The employee claimed that where a reference contains such opinions it was binding on the referee to be satisfied that the investigation was reasonably conducted and procedurally fair, consistent with the standard to be expected of a reasonable employer. The High Court dismissed the claim considering the specific facts.

 

As ever wishing you all the best, and should you need me please feel free to contact me.

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. PDT Solicitors LLP accepts no responsibility for the content of any third party website to which this webpage refers.

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