February 27, 2017

UK - CABLE: Current Awareness Bulletin

Clyde & Co's UK employment team brings you CABLE, a monthly bulletin keeping you up to date with recent legal developments.

Wrongful Dismissal

Adesokan v Sainsbury’s Supermarkets [2017] EWCA Civ 22 - Gross negligence - by a failure to act - may justify dismissal without notice

The claimant was a Regional Operations Manager responsible for 20 stores. When an HR Partner sent an email to five store managers in his region suggesting that colleague engagement surveys could be manipulated, which undermined Sainsbury's procedure for measuring staff engagement, the claimant failed to take any action. He was dismissed without notice for gross negligence tantamount to gross misconduct, and brought a claim for wrongful dismissal.

The Court of Appeal confirmed that gross negligence can amount to gross misconduct justifying summary dismissal without notice. However, there will only be limited circumstances in which an employee's failure to act justifies summary dismissal if they did not intend to act contrary to, or to undermine, the employer's policies.

Practical point: Where a manager's negligence has the effect of undermining a process which the employer treats as an important part of its culture, and the individual is responsible for the success of that procedure, this can amount to a serious dereliction of duty which may justify dismissal.

That said, there are not likely to be many occasions when dismissing a grossly negligent employee without notice is risk-free, particularly if the negligence is as a result of their failure to act rather than their action.   It will strengthen an employer’s position in these circumstances if it has included gross negligence (whether by act or omission) within the definition of gross misconduct in its Disciplinary Policy.

Employment Status

Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51 Pimlico Plumber is a worker, not self-employed contractor

Although the plumber's contract stated that he was an independent contractor, the Court of Appeal looked at the reality of the situation and concluded he was a worker because:

  • he did not have a right to sub-contract work to an external plumber, and
  • the company manual stipulated a minimum five-day and 40-hour working week, and although the contract said he could reject work, this did not reflect the day-to-day reality.

Practical point: This Court of Appeal decision makes it clear that when assessing employment status, it is necessary to look at the relationship as a whole, and the degree to which the individual is integrated in the business.  It is important to look not just at the documentation, but at how the relationship works in practice.

Data Protection

Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74  – Subject access request must be complied with

The claimants were beneficiaries of various Bahamian trusts for which law firm Taylor Wessing (the data controller) was the legal representative of a trustee. They submitted data subject access requests (DSAR) in the context of disputes over these trusts in the Bahamas but Taylor Wessing refused to respond on the grounds that the data requested was protected by legal privilege.

The Court of Appeal made an order compelling Taylor Wessing to comply with the DSAR. Commenting on whether a data controller can be excused from doing any further searches on the basis it would involve "disproportionate effort", which applies to the process of complying with the DSAR in addition to the action of supplying the copy documents, the Court said Taylor Wessing must show the steps it has taken to deal with the DSAR, and do more than assert that it is too difficult to search through voluminous papers.

Practical point: The circumstances of this DSAR are unusual and it is difficult to know how the Court would have responded to different facts. However, the Court of Appeal noted that the EU legislation emphasises the substantial public policy reasons for giving individuals control over data maintained by others about them and so, as far as possible, DSARs should be enforced.

Click here for a detailed update on this decision.

Gender Pay Reporting

The new gender pay gap regulations for companies with at least 250 employees have received parliamentary approval and are awaiting sign off by ministers. They are expected to come into force on 6 April 2017.

The Government and Acas have issued draft statutory guidance to assist employers with gender pay gap reporting. The guidance provides practical advice on how to carry out gender pay gap calculations, clarification of some of the key terms and provisions in the regulations, and "essential considerations" on how employers can reduce the gender pay gap.

Click here for a detailed update on the draft guidance.

Employment Tribunal Fees

The Ministry of Justice has published its long-awaited post-implementation review of the introduction of fees in the employment tribunals and the EAT.

The review concludes that the fees regime is working well and is meeting the original objectives for the introduction of fees, namely the financial, behavioural and access to justice objectives. Although the review accepts that the fees regime may have discouraged many individuals from bringing employment tribunal claims, it does not believe that individuals have been prevented from bringing employment tribunal claims. That said, certain claims under the national insurance fund will be exempt from fees with immediate effect.

There will be a consultation on proposals to widen access to the Help with fees remission scheme, which closes on 14 March 2017.