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Employment Insight November 2018

Liability for Behaviour at an After Work Party

The festive period is just around the corner and Christmas party plans are being finalised. We would not be employment lawyers without providing the annual reminder that a business may be vicariously liable for the actions of their employees during an after work party.

The Court of Appeal handed down a timely judgement in the case of Bellman v Northampton Recruitment Ltd. The case concerned JM, who was a director and shareholder of Northampton Recruitment Ltd (“Northampton”). JM assaulted another employee at an impromptu after party causing a permanent debilitating brain condition. This after party had taken place immediately after the business-organised Christmas party. Whilst this after party was not itself formally organised by the business, the drinks were mainly paid for by the business and in fact, the taxis that were organised to take employees to the after party was paid for by JM. The assault was preceded by a “lecture” to a number of employees by JM during which he was “laying down the law”, an employee
challenged JM’s comments, one thing lead to another and eventually to the assault.

You may recall that in 2016, the High Court found that the business was not liable for the actions of JM as the assault occurred at an impromptu after party, and not at the event the business had organised.

However, the Court of Appeal disagreed and considered that at the time of the assault, JM was director, shareholder and Northampton’s most senior employee, and in the events leading up to the assault (during which he had given his “lecture” to his employees on authority) JM was acting in his capacity as director. Additionally, the Court of Appeal held that it could not be said that the after party was a purely social event that just happened to involve colleagues. It immediately followed on from a work event that was arranged by the business, it was attended by many of its employees, and indeed the business had paid for transport to and drinks at the after party. In those circumstances, the Court of Appeal found that there was a sufficient connection between JM’s conduct and his role within the business, and the business was therefore vicariously liable for his actions.

On first glance, this judgment may have an impact on pretty much any out of work activity, especially where alcohol is involved. Having said that, it is worth noting that liability does not necessarily arise just because there is an argument between colleagues which leads to assault. A key factor in this case was that JM, in his actions leading up to the assault, was acting in his capacity as a director and therefore the focus was on what had led to and motivated the assault.

Individual Liability for Whistleblowing

The law is clear that if an employer dismisses an employee because they have blown the whistle (that is, made a protected disclosure) the dismissal is automatically an unfair dismissal (section 103A of the Employment Rights Act, “ERA”).

The ERA also prohibits subjecting workers to unlawful detriments as a result of whistleblowing. A detriment is treatment that is demeaning or unfavourable, such as denial of training opportunities or promotion, being given more mundane or excessive work, undue scrutiny, or poor handling of disciplinary processes or grievances. A worker has the right not to be subjected to a detriment on the ground that they have blown the whistle (section 47B ERA).

The law is also clear that individuals can be personally liable for acts of “whistle blower detriment” which they have done and for which the employer is in turn made vicariously liable (sections 47B(1A) & (1B) ERA)).

However, under the ERA, individuals cannot be liable for dismissals arising because an employee has blown the whistle.

Can it be right that liability for individuals is limited to detriments that fall short of dismissals?

In Timis and anor v Osipov, the Court of Appeal considered this question. In this case, AO was CEO of International Petroleum Ltd (“IPL”) until he was dismissed after he had blown the whistle on wrongdoing. Two directors of IPL, FT and AS, were key to AO’s dismissal. AO brought successful claims in the Employment Tribunal for whistleblowing detriment and automatically unfair dismissal. However, IPL had become insolvent and in order to obtain compensation for the losses flowing from his dismissal, AO needed to show that FT and AS were personally liable to compensate him.

The Court of Appeal considered that a construction of the whistleblowing legislation (section 47B(2) ERA) which permits an employee to bring a claim against an individual for detriment falling short of dismissal, but not if the detriment is dismissal, would produce an incoherent and unsatisfactory result. The Court stated that it would not have been what was intended by Parliament when legislating.

It therefore was found that an employee (AO in the above case) could bring a claim not just against his employer but also against key individuals (FT and AS) for their dismissal.

Loss of Legal Advice Privilege

Legal advice privilege is extremely important. It ensures that communications between a client and his solicitors remains confidential. It protects those communications from being disclosed to other parties, including to Employment Tribunals or courts as well as any opposing parties in a claim as part of the usual litigation disclosure process.

That said, there have always been limitations. Broadly speaking, for privilege to apply, the document or communication must be confidential, it must pass between the client and the solicitor, and the document must have been created for the purposes of giving or receiving legal advice. Importantly privilege must not be lost (i.e. through inadvertent disclosure) or waived by either party. It is worth noting that legal privilege can also be lost due to iniquity.

The recent case, X v Y Ltd is an interesting case. The Employment Appeal Tribunal (EAT) held that the privilege should not apply to an email sent by a solicitor to a client (an employer), in which the solicitor was providing advice to the client as to how to “cloak” the decision to dismiss an employee who had made complaints of discrimination as a redundancy dismissal.

By way of background, X was employed by Y until he was dismissed in January 2017. X is disabled under the Equality Act 2010 and alleged a claim that Y Ltd had subjected him to disability discrimination and had failed to make reasonable adjustments. He made a claim in the Employment Tribunal against Y Ltd and also raised a grievance using the Y Ltd’s internal procedures. Y Ltd subsequently announced a redundancy process and in October 2016, X was given three months notice of dismissal.

Following his dismissal, X received a print out of an email from an anonymous source. The email was marked as legally privileged and confidential and it was between a senior lawyer and another lawyer assigned to Y Ltd. The email stated that “…there is at least a wider reorganisation and process at play that we could put this into the context of…” and “otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution.”

X’s view was that email contained advice on how to “cloak” or conceal the real intention behind dismissing  him, which was that he had raised complaints of discrimination. Consequently, X issued a further claim against Y Ltd for discrimination alleging discrimination, victimisation, and unfair dismissal.

The Employment Tribunal held that X could not rely on the email because they found that it was subject to legal advice privilege. As a result, part of X’s case that relied on it was struck out. However, on appeal to the EAT, this finding was overturned. The EAT found that there was a strong prima facie case for iniquity as the email was held to be way of advising Y Ltd to “cloak” the victimisation dismissal behind the redundancy process. It was found that this was an attempt to deceive X as well as the Employment Tribunal.

Whilst the offending email was provided to X by way of anonymous source, which is not a situation that often arises, it is a reminder that legal advice privilege has limitations and does not provide absolute protection.

Criminal Records Check Did Not Breach Human Rights

The Supreme Court has recently considered the legality of an enhanced DBS check, known as the Enhanced Criminal Records Certificate (ECRC). An ECRC is required for people applying for certain types of roles such as roles that involve working with children or vulnerable people. The ECRC goes further than the standard DBS check and will reveal any additional information held by the police which they consider relevant.

The case of R (on the application of AR) v Chief Constable of Greater Manchester Police and another concerned AR, who was charged with rape but was found not guilty by a jury. Some years later, he applied to work as a teacher. As part of the standard recruitment process, an ECRC was obtained by AR’s prospective employer. The ECRC revealed that AR had been acquitted of the rape. It also revealed other information provided by police, including that AR had confirmed that the alleged victim had been a passenger in his taxi, and that he claimed that she had made sexual advances towards him which he had rejected. As a result AR was not employed.

AR appealed under the internal police complaints procedure about the information revealed in the ECRC but was unsuccessful. He subsequently applied for a taxi licence, which also requires an ECRC check. The ECRC revealed the same information provided previously. Again, AR appealed via the complaints procedure, and again, he was unsuccessful.

AR applied to the High Court for judicial review of the police’s decision to provide the details of his acquittal on the basis that his right to privacy under Article 8 of the European Convention of Human Rights had been breached. His application was dismissed by the High Court on the basis that the information revealed by the police on the ECRC was “no more than necessary to meet the pressing social need”.

On appeal, the Supreme Court agreed with the High Court. It was found that the ECRC which was issued did not breach AR’s right to a private life. Reference to the rape acquittal in the ECRC was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons.

Ultimately, subject to any legal or regulatory requirements placed on employer, it is up to the employer to decide whether a candidate is suitable for a role based on the information contained in the certificate.

Employee Dismissed For Failing to Provide Right to Work Evidence is Entitled to Appeal

The EAT has recently considered whether an employee who was dismissed for failing to provide evidence of his right to work in the UK should be given the right to appeal against his dismissal.

In Afzal v East London Pizza Ltd t/a Dominos Pizza, Mr Afzal had the right to apply for permanent residence. He was entitled to continue work in the UK pending the outcome of his application for permanent leave provided that he submitted his application before his limited leave expired. The day before his leave expired, Mr Afzal emailed his employer with attachments which he said contained evidence of his application. However, the employer was unable to open the attachments. Believing that Mr Afzal’s leave to remain in the UK had expired,
and in order to avoid the penalties for employing an illegal worker, East London Pizza dismissed Mr Afzal. No disciplinary procedure was followed prior to Mr Afzal’s dismissal, and he was not afforded the right of appeal against the decision.

Mr Afzal was unsuccessful in his claim for unfair dismissal. The Employment Tribunal considered that the dismissal was fair and that this was not impacted by the decision to not allow a right to appeal, as “there was nothing to appeal against”.

However, on appeal, the EAT disagreed. It held that that the failure to allow Mr Afzal to appeal the decision  denied him an opportunity to provide the relevant information. If an appeal had been allowed, Mr Afzal’s dismissal may have been prevented as the appeal may have lead to the required evidence being provided. It was therefore held that allowing an appeal was integral to deciding whether an appeal was fair or not. The case was remitted to the Employment Tribunal to make a decision on fairness.

A important reminder that it is always good practice to allow employees the right to appeal against a decision to dismiss. Had this been done in this present case, litigation and the associated costs, may have been avoided.

Minimum Wage, Working Time And ‘On Call’ Sleeping In

In Royal Mencap Society v Claire Tomlinson-Blake and John Shannon v Jaikishan and Prithee Rampersad, the Court of Appeal ruled that carers working ‘sleep-in’ shifts are to be characterised as “available to work”, rather than actively working. The judgment concerns workers who sleep overnight on premises to care for elderly, disabled or otherwise vulnerable people in their own homes.

It seems that in such situations, Nationa Minimum Wage applies only to time when the employee is required to be awake for the purposes of working.

This is not the end of the story; the matter will progress to the Supreme Court on appeal.


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