In Brief: February 2020 employment law round-up

In the courts: recent case updates

University's default retirement age was not justified despite legitimate aims

The employment tribunal has upheld a university professor's claims of age discrimination and unfair dismissal in Professor Ewart v Chancellor, Master of Scholars of the University of Oxford. Under the University's Employer Justified Retirement Age policy ("EJRA"), the professor had to compulsorily retire at age 69.

The tribunal held that whilst the EJRA was capable of contributing to legitimate aims such as intergenerational fairness, career progression for junior academics and the promotion of equality and diversity, the statistical evidence suggested that these aims were not reflected in practice nor given sufficient importance by the University to justify their discriminatory impact (for example the EJRA only created 2-4% more vacancies and a number of senior positions were filled by external recruits as opposed to being available for junior academics.

This case is therefore a reminder that whilst discriminatory policies (including but not limited to default retirement ages) are potentially capable of being objectively justified, any legitimate aims relied upon for the justification must actually be borne out in practice and not be merely hypothetical in nature.

Do watch this space for future updates as an appeal of the decision is expected.

Shared parental pay: enhanced maternity pay not discriminatory

Last week the Supreme Court refused permission to appeal in the combined cases of Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire v Hextall. Both cases concerned whether it was unlawful sex discrimination for men to be paid less on shared parental leave than women are paid on maternity leave.

The Court of Appeal held that it is not discriminatory to pay men on shared parental leave less than an enhanced rate of maternity pay paid to women on maternity leave, and since the Supreme Court has refused permission to appeal, the Court of Appeal's decision is now final. 

Accordingly, employers can now rely on this case with come certainty should they choose not to offer enhanced shared parental pay in circumstances where enhanced maternity rights are on offer.

Click here for full a summary of the Court of Appeal's decision in May 2019.

Whistle-blowers and detriment

In Jesudason v Alder Hey Children's NHS Foundation Trust, the Court of Appeal held that an employer seeking to defend its reputation can subject a worker to a detriment in the way it denies the truth of a protected disclosure.

A paediatric surgeon made disclosures regarding what he thought were fundamental failings in the Department of Paediatric Surgery at Alder Hey Children’s Hospital and expressed his concerns publicly in various publications. As part of the Trust's response to these allegations, the Chairman of the Trust sent a number of letters to third parties in which it was stated that Mr Jesudason's allegations were 'completely without foundation' and that the actions of Mr Jesudason were 'weakening genuine whistleblowing' (notwithstanding that a report by the Royal College of Surgeons had identified some areas of concern in the hospital's practices).

Dr Jesudason brought an employment tribunal claim alleging that the comments in the letters amounted to a whistleblowing detriment. Both the Employment Tribunal and the EAT agreed that no reasonable employee would have considered the comments contained within the Trust's letters as detriments, however, the Court of Appeal reversed this decision, stating that actions of the employer do not cease to be a detriment merely "because of the employer's purpose or motive".

That being said, the purpose and motive of the employer is relevant to the issue of causation and whether the detriments suffered were as a result of the protected disclosure.  In this case, the Court found that whilst the comments amounted to detriments, the detriments were not on the grounds of Mr Jesudason's protective disclosures, rather they were as a result of the Trust seeking to minimise the effect of the potentially damaging and misleading information Dr Jesudason had chosen to put into the public domain.

This case provides some comfort in terms of employers being able to respond to allegations put into the public domain by employees and/or former employees, however whistleblowing claims are fact sensitive and advice should therefore be sought prior to publically responding to any protected disclosures raised by an employee. 

Dominant purpose test confirmed for legal advice privilege

In Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) the Court of Appeal unanimously held that for a communication to attract legal advice privilege, the dominant purpose of that communication must have been to obtain or give legal advice.

This dispute centred on the CAA's decision to leak correspondence between the parties that was critical of Jet2 to the Daily Mail. This leak resulted in a judicial review process brought by Jet2 against the CAA.

Jet2 applied for disclosure of all drafts of one of the CAA's letters which had been leaked and any documents evidencing discussions of those drafts. Jet2 submitted that these drafts were necessary to understand the CAA's purpose behind the leak. The CAA claimed the documents were privileged as their in-house lawyers were involved in the discussions and gave advice on the drafts.

At first instance, the Judge held that legal advice privilege applied only to communications or documents produced for the dominant purpose of legal advice, therefore the documents were to be disclosed as the dominant purpose of the documents in issue had been to seek commercial views; the CAA appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and confirmed that the communication must have been prepared for the dominant purpose of seeking or obtaining legal advice for it to be covered by legal advice privilege. Further, the Court confirmed that the same principle applies to multi-party communications where, for example, emails have been sent to multiple addressees some of whom are lawyers, some not: if the dominant purpose of the communication was to obtain legal advice the email is privileged; if it was to obtain commercial views it is not. 

There are therefore clear implications in terms of multi-party communications; an email will not attract privilege simply because an in-house or external lawyer is copied in to the email and inevitably there will be risks associated with combining requests within one communication for legal and commercial advice from lawyers and non-lawyers respectively. The safer approach is therefore to keep such communications separate as far as practicable, so that there is no doubt that the dominant purpose of the communication is obtaining/giving legal advice.

Timings of disability and discriminatory acts

The Employment Appeal Tribunal held in Tesco Stores Ltd v Mrs C Tennant that to successfully claim disability discrimination, a claimant must show their condition amounted to a 'disability' under the Equality Act 2010 ("EA") at the date of the alleged act(s) of discrimination.

The Claimant was employed by Tesco from June 2005, and from September 2016 she was off sick for extended periods whilst she suffered from depression. A claim for disability discrimination was brought a year later, alleging discriminatory acts took place between September 2016 and September 2017.

Initially, the Employment Tribunal found that the Claimant's impairment had lasted for a period of 12 months and, as such, the statutory conditions of disability under the EA was satisfied.

Tesco appealed and the Employment Appeal Tribunal upheld the appeal, finding that it was necessary to assess whether the definition of disability was satisfied at the time of the discriminatory acts, not at the time the claim was submitted. At the time of the relevant dates in question, the Claimant's impairment had not then lasted for 12 months and there was no evidence before the tribunal that it had been likely to last for 12 months at that time. The Claimant was therefore not disabled within the meaning of the EA at the time of the discriminatory acts in question.

Whilst this case does provide some comfort to employers, had the Clamant had a prognosis in September 2016 that her depression was likely to last for a period of 12 months or more, she would have met the statutory conditions required for a disability; accordingly if an employer receives an Occupational Health report which indicates that an employee's condition may be long term, the relevant employee would likely be deemed disabled and appropriate steps and advice should be taken.

Legislation and Consultations

Increase in National Minimum Wage

The draft National Minimum Wage (Amendment) Regulations 2020 have been laid before Parliament and propose to change the rates of the National Minimum Wage following recommendations from the Low Pay Commission. The draft was approved by the Government on 31 January 2019 and the Regulations are due to come in to force on 1 April 2020, following which the National Minimum Wage rates will be as follows:

• £3.90 per hour for apprentices
• £4.35 an hour for 16-17 year olds
• £6.15 an hour for 18-20 year olds
• £7.70 an hour for 21-24 year olds
• £8.21 an hour for 25 year olds and over.

Parental Bereavement Leave Regulations 2020

The Government has laid the draft Parental Bereavement Leave and Pay Regulations before Parliament.

From 6 April 2020, all employees who lose a child under the age of 18 or suffer a stillbirth after 24 weeks of pregnancy will be entitled to two weeks' statutory leave. Employees with at least 26 weeks' service who meet the minimum earnings criteria will also qualify for Statutory Parental Bereavement Pay which is at the same rate as Statutory Paternity Pay.

Click here for the Draft Parental Bereavement Leave Regulations 2020 and the Draft Statutory Parental Bereavement Pay (General) Regulations 2020.

IR35

At the beginning of the year HMRC published a technical note and draft secondary legislation on extending the off-payroll working rules to the private sector for consultation. The closing date for responses was 19 February 2020. We will provide further updates once the response to the consultation/final legislation has been published.

For further information as to the effect of these provisions, please see our previous article here and for a review of recent decisions in the tax tribunal regarding engagements which fall within or outside of IR35, please see this month's article here.

News

GDPR

The Information Commissioner's Office ("ICO") has issued a statement confirming the EU General Data Protection Regulation will continue to apply in the UK, notwithstanding that the UK has now left the EU with effect from 31 Jan 2020. This will remain the position at least during the transition period until 31 December 2020.