Newsletter
19 April 2016

Employment Newsletter Spring 2016

Introduction
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Welcome all to this, our first employment newsletter of 2016. In this Spring edition our contributors:
1. Roger Quickfall- Whistleblowing: protected disclosures
2. Sarah Brewis- Let them eat cake?
3. Andrew Webster- Barbulescu -v- Romania [2016] IRLR 235
4. Richard Ryan- TUPE Service Provision Changes
have highlighted four recent cases ranging from TUPE to whistle-blowing, sexual orientation discrimination and human rights in the workplace (respect for private life). 

I hope you find the articles useful. I for one will always think of Beyonce when regaling tribunals on the suybject of Schmidt v Spar-und Leihkasse Der Früheren Amter Bordesholm, Kiel und Cronshagen.

Aside from case law developments, the most important legislative intervention of late must be the introduction from April 2016 of the National Living Wage in the case of workers aged 25 and over. For those in that category the national minimum wage must be at least the NLA of £7.20 an hour. 

You may have seen a recent Times article ‘no such thing as a free lunch for Café Nero staff’ in which the high street coffee shop is said to have written to staff to withdraw their hitherto entitlement to a free Panini at lunchtime. The Guardian also published an article around the same time indicating that several other high street chains are reported to be looking at removing certain benefits from employment packages to militate against rising wage bills.

Whatever the truth of the particular examples, it highlights the fact that well-intended socio-economic legislation (or cynical welfare-saving legislation - according to which version you prefer as being the underlying rationale behind the introduction of the living wage) will always make work for employment lawyers. Inevitably, employers will seek to off-set the increased cost of a new National Living Wage. In doing so they will have to ensure that they do so lawfully (without breach of existing contracts) and consistently with equality legislation and collective labour provisions (e.g. section 188 TULR(C)A). Who knows what potential equal pay implications might arise out of tweaks applied here and there to contractual terms! Only time will tell. 

For those interested, you can access the revised BIS document ‘Calculating the National Minimum Wage’ by clicking on the link below. Alternatively, you could download Single Ladies and refresh your understanding of TUPE the Richard Ryan way. The choice is yours.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/514897/BIS-16-144-nmw-calculating-the-national-minimum-wage.pdf

Seamus Sweeney
Parklane Plowden Chambers

 


 

1. Whistleblowing: Protected disclosures: a change of emphasis


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Employment lawyers know well that a disclosure needs to be ‘protected’ in order for a worker to be able to rely on it for the purposes of a claim for compensation for the consequences of any detriment suffered as a result.

It is also well known that a protected disclosure is a qualifying disclosure (s.43A Employment Rights Act 1996 (“ERA”)).  To qualify the disclosure needs, in the reasonable belief of the worker making the disclosure, to show one of the matters set out at s.43B ERA.  Such matters relate to the commission of a criminal offence, a breach of a legal obligation, a miscarriage of justice, a danger to health and safety and so on.  The disclosure also needs to be made to one of the persons named in the subsequent sections.  So far, so uncontroversial.

However, the nature of the disclosure itself (facts rather than allegations) was thought to be settled until recently when Langstaff P handed down judgment in the case of Kilraine v London Borough of Wandsworth UKEAT/0260/15/JOJ, 26/1/16, unreported (“Kilraine”).

Since Cavendish Munro Professional Risks Management Limited v Geduld [2010] IRLR 38, EAT (“Cavendish”), the nature of the disclosure has been taken to be the disclosure of information rather than merely the disclosure of anallegation.  The difference between the making of an allegation and the disclosure of information was illustrated by the EAT at paragraph 24 of Cavendish:

Further, the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.”
For several years since the judgement was handed down in 2009, this distinction has regularly been relied on to encourage employment tribunals to ask themselves whether the disclosure conveys facts or whether it merely makes allegations.
It now appears that it is wrong to approach the issue on an ‘either or’ basis.

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2. Let them eat cake? The ongoing battle between the right to hold religious beliefs and protections against sexual orientation discrimination
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This Spring will see a number of interesting developments. The likely relegation of at least one of our local football teams, the disappointment of an early England exit out of the Euros 2016, but also the much anticipated appeal in the case of Lee v Ashers Baking Co Limited & Anor [2015] NICty 2, which is now due to be heard on 9th May 2016.

Mr Lee was a gay man who believed in the right to same-sex marriage and who ordered a cake from Ashers Bakery with the slogan ‘Support Gay Marriage’. The bakery refused to fulfil the order on the basis that it would compromise their Christian beliefs. Mr Lee subsequently successfully brought a claim in a Northern Ireland County Court claiming both direct and indirect discrimination on the grounds of sexual orientation and religious belief.

District Judge Brownlie, who heard the case, highlighted that there were competing rights under the European Convention on Human Rights. On one hand, the bakery owners’ rights under Article 9 to manifest their religion without unjustified limitation and on the other hand the right of Mr Lee to enjoy his right under Article 8 to respect for his private life without unjustified discrimination on grounds of his sexual orientation. The Judge pointed out that both sexual orientation and religion are ‘highly protected’ rights under the ECHR. Critics of the judgment have suggested that Judge Brownlie’s judgment in some way suggests that gay rights take precedence over religious rights, although as her judgment made clear, if the plaintiff had been a gay man and the defendants, as Christians, wanted him to bake a cake with the words ‘support heterosexual marriage’, the plaintiff would have been required to do so, since otherwise he would be discriminating against the defendants. Although the bakery argued that under Article 10, they could not be compelled to support gay marriage, the Judge concluded that what the bakery had been asked to do did not require them to support, promote or endorse any viewpoint.

Although the appeal had been due to be heard in February, this has now been adjourned until May 2016 following a last minute request by Attorney General John Larkin QC to make representations regarding a potential conflict between Northern Ireland’s equality legislation and European human rights law.
Whilst the Equality Act 2010 does not extend to Northern Ireland, many argue that the Ashers Baking case falls on all fours with the Supreme Court decision in Bull v Hall [2013] UKSC 73. In that case, Mr and Mrs Bull were devout Christians who ran a B&B in Cornwall and had a policy of only allowing heterosexual married couples to have double rooms. The Claimants were a homosexual couple in a civil partnership. Mr and Mrs Bull refused to honour a booking of the couple and the couple subsequently brought a claim of sexual orientation discrimination in the County Court. The County Court found that the policy and its enforcement amounted to direct discrimination. Mr and Mrs Bull appealed to the Court of Appeal

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3. Barbulescu -v- Romania [2016] IRLR 235: A Snooping Employer's Charter?
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Background
 
Mr Barbulescu was employed by a private company in Romania as an engineer in charge of sales.  He had an internet instant messaging account at work to enable him to respond to client enquiries.  His employer invited him into a meeting to inform him that his messenger communications had been monitored and that, contrary to the company’s policies (to the effect that employees were “strictly forbidden… to use computers… for personal purposes”), he was suspected of having used the account for personal purposes.  Though he denied this and maintained that the account had been used entirely for professional ends, his employer’s subsequent investigation indicated otherwise.  In particular, it was revealed that he had exchanged messages with his brother and fiancée in relation to matters including his health and sex life.  Needless to say, his services were duly dispensed with.  His challenge to the lawfulness of the dismissal in the Romanian courts was unsuccessful on the grounds that his employer had complied with the relevant dismissal proceedings provided for by Romanian labour law.
 
Not satisfied with the decision of the Romanian courts, Mr Barbulescu complained to the ECHR that his employer’s decision to terminate his employment was predicated upon information obtained by means of a breach of his Article 8 right (i.e. the right to respect for his private life), a right which he argued the domestic courts had failed to protect.
 
ECHR Decision
 
The ECHR found that Mr Barbulescu’s Article 8 right had not been infringed and dismissed his application.  In reaching that conclusion it considered whether a fair balance had been struck by the domestic courts, having regard to their margin of appreciation, between Mr Barbulescu’s right to respect for his private life and his employer’s interests (Article 8, of course, being a qualified right).  The factors considered by the court in reaching its decision included the following: the monitoring took place within the scope of the employer’s disciplinary framework; the communications had taken place within working hours; the employer accessed the messages after Mr Barbulescu had proffered assurances that his communications were all of a professional nature; whilst there was no suggestion that Mr Barbulescu’s actions had caused actual damage to his employer, it was not unreasonable for his employer to wish to ensure that only professional tasks were being completed within working hours; and the employer’s monitoring had been limited in scope and proportionate (notably only messenger communications had been examined- other documents and data had not been scrutinised).

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4. TUPE Service Provision Changes: the transfer of part of an activity and the plurality of organised groupings

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Arch Initiatives -v- Greater Manchester West Mental Health NHS Foundation Trust & Others (2016) EAT/0267/15/RN (the Arch case)

The new President of the EAT, The Honorouble Mrs Justice Simler DBE, has clarified the scope of the Service Provision Change (SPC) regulations within TUPE, in a judgment delivered in January 2016 but only recently published on the EAT and Bailii websites (March 2016). It confirms the general understanding that the transfer of all activities is not required for TUPE to apply and, furthermore, that activities may be split along functional lines, as well as quantitative lines. It also confirms that there is scope for a single person to constitute a SPC, even where that person is part of a wider service/activity which is itself split up upon the transfer (and therefore the single person transfers, potentially alongside other organised groupings or indeed multi-organised groupings, to the same transferee).
This case will be of interest to all solicitors who advise businesses which operate contracts for services either as an end user (client) or contractor (service provider) particularly in the context of the public sector and the reconfiguration of contracts on a re-tendering, where it is sometimes particularly difficult to identify transferring staff (if any). It will be of equal interest to the private sector, because the case has general application.

Background
The putative transferor was the Trust and the putative transferee was Arch; the latter disputed that TUPE applied as alleged. The service provided by the Trust to the client (Bolton Council) was the management and provision of drug and alcohol treatment services in the Bolton area, under a number of contracts requiring it to deliver combined case management and ‘treatment’ interventions using nurses, doctors, and substance misuse practitioners, amongst others. It was a sophisticated service and, with the ever-changing epidemiology of drug and alcohol misuse, over the years different ways of carrying out assessment and treatment were adopted. Increasingly, the focus was on promoting recovery, rather than maintenance.
The nine Claimants included eight who worked within the Trust’s “drug team” (CDT) and one Claimant (Mrs Aulton) who worked within the Trust’s “alcohol team” (CAT). The service operated by Arch following the transfer, which was known at the time as Lot 1, or the Single Point of Access and Assessment (SPAA) was, in effect, a “case management” service where users were to be assessed and referred for treatment. Lots 2, 3, 4 and 5 involved the various forms of treatment for users (called “interventions”) and the other third party, Lifeline, accepted that TUPE applied to these Lots, so those carrying out the treatment would transfer to them. Therefore, the service was, with effect from 1 January 2013, split into 5 Lots. In simple terms, Lot 1 would be the “planners and controllers” assessing the users, while Lots 2 – 5 would be the “doers” involved only in treatment. Lot 1 became the most controversial Lot, as Arch alleged that no TUPE transfer took place because, primarily:

  1. The activities of SPAA were not fundamentally or essentially the same; it was a “pure” and sole case management with no treatment aspects to that service, which did not exist before. Arch also argued that the focus on “recovery” was new.
  2. There was no “organised grouping” and in particular no dedicated teams working as organised groups with clear and structured line reports.

The original tribunal rejected the above grounds, amongst others. It found that although SPAA was in some respects a “new” service, the activities were fundamentally or essentially the same. Whilst there were four main differences, those differences did not undermine this conclusion. In addition, the Claimants constituted two organised groupings; eight of the Claimants were organised into a grouping of (drugs team) “case managers” and the other (Mrs Aulton) formed an organised grouping of one, as a Team Manager of the alcohol team. It was a matter of design rather than happenstance that she carried out this role. All were assigned to their respective grouping, despite Arch suggesting otherwise.

The decision of the EAT 

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Dates for the diary!

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We hope to see you there!