Employment: Internal disciplinary proceedings and criminal proceedings

In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, the Court of Appeal considered an appeal by a Trust against the decision of the High Court to grant an interim injunction preventing it from continuing with a disciplinary investigation, amongst other things.  The case concerned a consultant in anaesthetics (the employee), and the death of two patients in his care.  Disciplinary proceedings were commenced, and the police were notified.  The CPS did not charge the employee for the first death due to insufficient evidence, although it was in the process of investigating the second patient’s death. The High Court decided that the Trust was in breach of an employment contract for: failing to pay the employee’s salary during the period when he was the subject of an interim suspension by the Interim Orders Tribunal of the Medical Practitioners Tribunal Service for proposing to hold a hearing to discuss the termination of the employee’s contract for his failure hold the requisite licence to practise with the General Medical Council because of the temporary withdrawal of his licence for the period of suspension and for breaching the implied term of trust and confidence by pursuing their own internal disciplinary process at the same time as an ongoing police investigation On the first point, the Court of Appeal considered Read Full Article…

Employment: High Court – Employer not responsible for injury at Christmas party

In Shelbourne v Cancer Research UK [2019] EWHC 842 (QB) the High Court upheld a county court judgment that an employer was not liable in negligence for an injury sustained at its Christmas party by one of its employees, nor was it vicariously liable for the actions of the individual who caused the injury. In order for the tort (or delict, in Scottish law) of negligence to arise, it must be established that the defendant owed a duty of care to the claimant.  A three-fold test has been set by case law, in order to determine the presence of such a duty: was the damage foreseeable? is there a sufficiently proximate relationship between the parties? in all the circumstances, is it fair, just and reasonable to impose a duty of care? Vicarious liability refers to strict, no-fault liability for wrongful actions or omissions of another person.  Whether vicarious liability can be attributed to a person (natural or legal) is generally decided on the basis of a two-stage test: is there a relationship between the primary ‘wrongdoer’ (typically, an employee) and the person alleged to be liable (typically, an employer), which is capable of giving rise to vicarious liability? is the connection between that relationship and the wrongful act or omission such as to make it just and reasonable to hold Read Full Article…

Employment: Government consultation on confidentiality clauses and workplace harassment or discrimination

On 4 March 2019, the Government published an open consultation called: ‘Confidentiality Clauses: measures to prevent misuse in situations of workplace harassment or discrimination’. The purpose of the consultation is to seek evidence and views on the use of confidentiality clauses – also known as non-disclosure agreements or NDAs – in the employment context, and to propose further regulation to tackle their misuse. The consultation uses the term ‘confidentiality clause’ whether as a stand-alone agreement or part of a wider contract or settlement agreement. It is acknowledged that confidentiality clauses have an important role to play in protecting trade secrets or other confidential information pertaining to an employer. There are certain existing legal limitations on confidentiality clauses, for example, they cannot override anti-discrimination law under the Equality Act 2010, or remove the protections around making a protected disclosure (‘whistleblowing’).  Also, a stand-alone confidentiality clause cannot prevent someone taking a matter to an employment tribunal, however, a valid settlement agreement can waive this right. There is evidence to suggest that they have been used to intimidate victims of harassment or discrimination from disclosing their treatment to the police or other people.  Therefore, the consultation seeks to examine: whether there should be more limitations on confidentiality clauses in the employment context, to make it easier to understand when workers are able to disclose Read Full Article…

Employment: Government Equalities Office – guidance to help employers tackle gender pay gap

On 8 February 2019 the Government Equalities Office (GEO) published two sets of guidance titled Eight ways to understand your gender pay gap and Four steps to developing a gender pay gap action plan.  According to the GEO, these publications aim to assist employers with tackling gender pay gap issues. The new guidance follows the publication in January 2019 of a GEO research report titled Employers’ Understanding of the Gender Pay Gap and Actions to Tackle it: research report on the 2018 survey.  The report provided results from a 2018 research exercise which was concluded shortly after the deadlines for employers in England, Wales and Scotland to publish their first set of gender pay gap (GPG) data under the Equality Act 2010 (Gender Gap Pay Information) Regulations 2017.  It consisted of a telephone survey of 900 employers (each with 250+ staff), and 30 follow-up qualitative interviews.  It covered employers’ understanding of the GPG, their experiences of complying with relevant legislation and the actions taken to close their GPG (or to ensure that one did not develop). The majority of respondents (82%) believed they had a good understanding of what the gender pay gap is and how it is calculated, an increase from 48% in 2017.  A further 16% felt they had a reasonable understanding but were unsure on the specifics, Read Full Article…

Employment: The Good Work Plan outlines key changes to employment law rights

This week the Government has published the final version of The Good Work Plan.  This follows on from the Taylor Review of Modern Working Practices and four subsequent Government consultations.  The key aims of The Good Work Plan are to: ensure work is ‘fair and decent’ and not exploitative, improve clarity in working relationships, and strengthen the enforcement system. To this end the Government will bring forward legislation to achieve the following: Workers with variable working hours (such as zero hours workers) who would like more certainty will be able to request a more fixed working pattern from their employer after 26 weeks of service. To help workers who are engaged intermittently with gaps in service accrue more employment rights that are linked to length of service.  A four week gap between employment with the same employer will be needed to break continuity of service rather than a one week gap. It will no longer be possible to implement an existing derogation that allows agency workers to surrender their right to equal pay with non agency counterparts after 12 weeks. A ban on employers from making deductions from staff tips. The holiday pay reference period will be increased from 12 to 52 weeks. A reduction in the threshold required for a request to set up information and consultation arrangements from Read Full Article…

Employer vicariously liable for rogue employee’s data breach

Our December 2017 Newsletter reported in detail on the case of Various claimants v Wm Morrisons Supermarket PLC [2017] EWHC3113 (QB), in which the High Court considered the extent of an employer’s liability when a rogue employee deliberately disclosed his colleagues’ personal information. To recap briefly, an employee who was disgruntled with his employer abused his position of Senior IT Auditor to post on a file sharing website personal details of 99,998 fellow employees of Morrisons.  Whilst the High Court held that Morrisons had limited primary liability for the data breach, it found them liable vicariously for the unlawful conduct of its employee in respect of claims under the Data Protection Act 1998 (DPA), an action for breach of confidence, and an action for misuse of private information.   Morrisons appealed to the Court of Appeal on the point of vicarious liability and the Court issued its judgment this month in Wm Morrisons Supermarket PLC v Various claimants [2018] EWCA Civ 2339.   Morrisons argued again for the legitimacy of the defences that it had relied upon in the High Court.   Firstly, Morrisons argued that it was not possible to be liable vicariously under the DPA.  They further argued that the DPA also effectively excluded actions for misuse of private information and breach of confidence and/or the imposition of Read Full Article…