Landmark cases in Court of Appeal and Supreme Court could drastically change Employment Law for good

by Faareen Ali

The ethical veganism case was perhaps a highlight for many of us earlier this year, but who would’ve thought that the Employment sector would see further legal quandaries, which could potentially change the industry and our lives for good.

From rights of sleep-ins within the care sector, employer’s vicarious liability in malicious acts by employees, involving Data Protection Act 2018, to Age discrimination and legitimacy of a discriminatory policy for Probation officers.

Some of these cases are still to be heard, and others have already been heard, with judgment being reserved for a later date. There will be significant consequences either way. We sat down to briefly discuss the cases, and the changes that have occurred, and could occur to employee’s rights, and the obligations upon employers.

Ethical Veganism declared a philosophical belief and protected under Equality Act 2010

In this case, the tribunal determined that ‘ethical veganism’ is a ‘philosophical belief’ which merited protection under Equality Act 2010.

Mr Jordi Casamitjana, the claimant and a devoted ethical vegan had learnt that his ex-employer, League Against Cruel Sports (‘LACS’) was investing their pension contributions in firms who tested animals. He had asked for his contributions to be ceased. He then went onto alerting other colleagues, and found himself out of a job because of it, as LACS argued it constituted gross misconduct.

Ethical veganism goes further than not eating or wearing animal products, as this particular case stipulated. Mr Casamitjana told the tribunal how he chose to walk rather than take a bus, as he feared buses were likely to kill insects.   

Since the finding, ethical vegans are protected under this law, which means they cannot be discriminated against, directly or indirectly, on the basis of their belief, whether that be in a workplace or in the wider society.  

For employers and service providers; discrimination, harassment and victimisation on the basis of ethical veganism is equally as serious as any other religious belief, and appropriate policies may need to be implemented to ensure effective policing. The imminent effect of the ruling is that entities will be required to make available vegan-friendly options,  for example, in canteens, separate storage/ refrigerator arrangements and/or protective equipment, but only as far as reasonably practicable and justifiable.

Case Citation: Mr J Casamitjana Costa v The League Against Cruel Sports 3331129/2018

Sleep-in shifts and National Minimum Wage 1998 (‘NMW’)

This case  affects the social care sector, as carers are often asked to work sleep-in shifts. This means they sleep through the night, only to be awakened in case of emergencies. As a result, care homes do not pay the National Minimum Wage (NMW) as they argue carers should be available to work in order to be eligible for it. In this particular case, a flat rate of £22.35, plus one hours pay at £6.70 was paid for a sleep-in shift.

The Supreme Court have been asked to decide the matter once and for all. If successful, carers will start receiving the NMW for sleep-in shifts, and will have a right to claim backdated pay for at least 6 years. The claim has been valued at £400 million pounds, which will inevitably cause dismay and worry among care homes. The case was heard by the Supreme Court in February, but the judgement is still pending.

Case Citation: Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641

Vicarious liability and Data Protection Act 2018

A disgruntled employee bearing a grudge against his employer who he audits data for, in the course of his employment, can be very dangerous. This case proved so. This is especially when you throw into the mix statutory obligations under General Data Protection Regulations (GDPR) which were implemented into the UK by the Data Protection Act 2018, as well as Common Law duties.

The case concerned itself with whether an employee would be liable either vicariously or directly, for data protection breaches, breach of confidence and/or misuse of private information at common law, when a corrupt employee released personal details of 99,998 co-workers on a file-sharing website.  Morrisons were the employers who were met with this ill-fate.

The Supreme Court held that an employer would only be liable if the act was authorised, and fairly and properly regarded as being done in the ordinary course of employment, and in furtherance of an authorised act.  It found that employers can also be vicariously liable under DPA 2018.

Employers can breathe a sigh of relief as they will not be held liable for any malicious acts by employees, which do not stem from authorised practice. However, there should still be measures by  employers to monitor compliance, whilst also arming themselves with the right level of insurance. For more on what vicarious liability is, and for a comprehensive analysis on this case, see here.

Case Citation: Various claimants v WM Morrison Supermarkets plc UKSC 2018/0213

Age discrimination and legitimacy of a discriminatory policy for Probation officers

Alterations had been made to the pay policy of probation officers by Ministry of Justice amid funding cuts. Under the new rules, it will take an individual 23 years to progress to the higher salary band, rather than 7 or 8 years, which was the position previously.

 As a result of these changes, older officers are receiving much more in salary and pension. The Court of Appeal is due to hear the case after it was rejected by Employment Appeals Tribunal, on the basis that the rules were legitimate, and that the new policy was an equitable and a fair response to the funding cuts. If overturned, probation officers will see the pay policy redesigned to reduce the huge gap, and could also find  themselves entitled to a backdated pay.

Case Citation: Heskett v Secretary of State for Justice UKEAT/0149/18/DA

All of these changes are only a tip of the iceberg within the Employment sector, as there are also other pressing developments which are progressing to resolution. Some examples include the legal status of Uber drivers and the legality of payments made to employees by employers, over the head of trade unions.

The year of 2020 has certainly proven to be one of the most memorable, especially for the Employment sector.

Disclaimer: This is a blogging forum tasked with the responsibility of simplifying law, it does not intend for its content to constitute or be used as legal advice.

 

 

 

 

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