HR Two Minute Monthly: agency workers, Facebook dismissals, subject access requests, and rights to be accompanied

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Summary: Our September HR Two Minute Monthly includes decisions on agency workers' rights, subject access requests, Facebook dismissals and LLP members' rights to claim repudiatory breach.

Agency workers' right to be informed of vacancies is limited

An agency worker has the right to be informed by a hirer of any relevant vacant posts and be given the same opportunity as a comparable worker to find permanent employment with the hirer. In Coles v Ministry of Defence, the Employment Appeal Tribunal confirmed that this right is limited to the provision of information relating to vacancies at the hirer. It does not extend to an equal right to be considered for vacancies alongside employees.

In this case, the claimant was an agency worker whose role was advertised as vacant. The post was accessible to all internal candidates (including the claimant, who did not see or apply for the role). A current employee applied for and secured the role. The agency worker argued that this breached his right to equal treatment regarding basic working and employment conditions. The EAT disagreed. It held that the employer’s obligation was limited to providing information about the role to agency workers, and this had been satisfied.

This decision is helpful to employers in clarifying the limited extent of the rights of agency workers. The EAT’s limited interpretation of this right is perhaps surprising given the underlying thrust of the Agency Workers Regulations 2010 to encourage equality of treatment in recruitment. However, the facts of this case may well be relevant to the way it was decided - the employee who secured the agency worker’s role was already at risk of redundancy. Despite this EAT decision, employers may wish to consider applications for vacancies from agency workers alongside permanent employees.

Dismissal for historical Facebook comments was fair

In British Waterways Board v Smith, the Employment Appeal Tribunal held that the dismissal of an employee for posting offensive comments on Facebook about his employer was fair, despite the comments being made a long time before his dismissal, and the employer being aware of the comments but not acting on them at that time.

The claimant in this case had raised a number of grievances against his employer. As part of the preparation for a mediation, a manager highlighted a number of comments made by the claimant some time previously on his Facebook page. These included offensive comments about his employer and his colleagues, and also indicated that the claimant had been drinking whilst on call (which was not permitted). The Facebook comments had been flagged to HR when the company first became aware of them, but no action had been taken. However, now the employer commenced a disciplinary procedure because of them, and summarily dismissed the claimant. The Tribunal held that the dismissal was unfair. This was overturned by the EAT, which concluded that the Tribunal had substituted its own views for the employer. The EAT said that the dismissal was fair because it was within the range of reasonable responses.

Whilst this case reiterates the importance of a clearly drafted social media policy, the EAT’s decision is striking given the employer had been aware of the Facebook comments some time earlier and had failed to act on them then. Employers would be well advised to act promptly when being made aware of potential misconduct and there remains a significant risk that relying on such matters at a later stage could jeopardise the fairness of a dismissal.

Data subject access requests were not reasonable or proportionate

In Dawson-Damer and others v Taylor Wessing LLP and others, the High Court refused an application for an order that a firm of solicitors, Taylor Wessing, comply with data subject access requests (“DSARs”). The law firm was acting for a Bahamian trustee company which was in dispute with some beneficiaries. The beneficiaries made DSARs against the firm.

The law firm said that the personal data it held on behalf of its client, the trustee, was subject to legal professional privilege, and so was exempt from the DSARs. The High Court agreed and held that given the background to the DSARs, it would not be reasonable or proportionate for Taylor Wessing to undertake lengthy and costly searches of files stretching back over 30 years to determine whether legal privilege applied. Although it did not formally have to decide the point, the High Court also suggested that as the historic hard copy documents were stored in boxes in an unstructured way, they were not sufficiently well organised to form a ‘relevant filing system’, which is required for such 'manual' records to fall within the remit of the Data Protection Act. The High Court further said that even if the claimants had got over these hurdles, it would not have exercised its discretion to order Taylor Wessing to comply with the DSAR in any event. This was because the real purpose of the DSARs was to obtain information to be used in separate Bahamian litigation, and it was not a proper use of the DSAR regime to enable the claimants to obtain documents that they could not obtain in the Bahamian proceedings.

This case is the latest in a line of court decisions which have taken a restrictive approach to ordering compliance with DSAR requests. Of particular note is that the judge emphasised that an employer need only take reasonable and proportionate steps to identify personal data when conducting its DSAR search. This is contrary to the Information Commissioner’s view (to whom most DSAR complaints are made), who says that employers should make extensive efforts to locate personal data relevant to a subject access request, and that the disproportionate effort exemption only applies to the provision of copies of the results of the DSAR search. Employers should therefore be wary of assuming that the Dawson-Damer case gives them licence to significantly limit the scope of their DSAR searches.

Refusal to allow companion at disciplinary hearing was breach of trust and confidence

The High Court has held that an employer’s refusal to allow an employee to be accompanied to a disciplinary investigation meeting was unfair and breached the implied term of trust and confidence.

The claimant in Stevens v University of Birmingham was subject to a disciplinary investigation relating to his role in clinical trials. His employment contract with the University entitled him to the statutory minimum choice of representation (trade union representative or work colleague). He also had a separate contract with an NHS Foundation which allowed for a wider category of companion at disciplinary hearings, but it was the University, rather than the NHS Trust, which was disciplining him. In advance of a disciplinary investigation meeting, the claimant requested a companion from a medical defence organisation (akin to a trade union) but the University refused. The High Court held that the University breached the implied term of trust and confidence by failing to permit his choice of companion. The Court took into account the seriousness of the allegations, the fact that the medical defence organisation fulfilled a similar function to a union, and also that the claimant had been assisted by that organisation previously.

The High Court’s decision should be seen in light of the unusual set of facts in this case, and so is likely to be of limited application. It is notable that the High Court’s reasoning suggested that although there had been a breach of the implied term of trust and confidence, this was not fundamental and so did not bring the relationship to an end. This finding is inconsistent with previous case law. However, the case is a useful reminder that even where an employer has clearly defined who can be a companion, in some situations it may be appropriate for an employer to consider exercising its discretion to allow someone outside of that scope to accompany the employee.

English courts claim jurisdiction over share incentives scheme operated by US parent company

The Court of Appeal has held in Petter v EMC Europe Ltd and another that a claim by an employee in relation to a share incentives scheme could be brought in the UK courts. Although the employee was employed by a British subsidiary, the incentive scheme in question was operated by the employer’s US parent company and contained an exclusive jurisdiction clause in favour of the courts of Massachusetts. The Court of Appeal concluded that Articles 20 -23 of the Recast Brussels Regulation applied to the dispute, as the incentive scheme was a matter “relating to individual contracts of employment”. As the Recast Brussels Regulation applied, the employee was entitled to sue the employer in the member state where the employee habitually worked (in this case, in the UK). The Court of Appeal therefore granted an anti-suit injunction restraining the US parent company from taking any further action in the US courts and also subsequently ordered them to withdraw any motions filed in the US courts.

Prejudice caused by extension of time should be assessed separately for each respondent

In Harden v Wootlif and another, the Employment Appeal Tribunal upheld an appeal brought by Mr Wootlif (an individual respondent) that a Tribunal had erred in law in failing to consider the circumstances of each respondent separately when it concluded that it was just and equitable to extend time.

The claimant in this case had brought a number of claims against the employer and subsequently sought to add an out of time harassment claim against both the employer and Mr Wootlif. The Tribunal held that it was just and equitable to extend time and allow the claim of harassment against both respondents to proceed. The Tribunal’s reasoning was that the claim of harassment would need to be considered in any event as background in the hearing of the other claims. Mr Wootlif appealed on the basis that the Tribunal had failed to assess the balance of prejudice in respect of his circumstances, in particular failing to recognise that no claims would remain against him if the claimant’s out of time harassment claim did not proceed. The EAT agreed with this analysis and held that the Tribunal’s justification for extending time clearly did not apply to Mr Wootlif. The Tribunal had not considered the position of the two respondents separately.

The Tribunal’s decision to allow an extension of time because the facts of the claim would need to be considered in any event is a relatively common approach. With this in mind, this case is a helpful reminder that in circumstances where a claim is also brought against individual respondents, it is worth considering separate arguments on the potential prejudice that would be caused by an extension of time.

No repudiatory breach in multi-party LLP agreements

The High Court has ruled in Flanagan v Liontrust Investment Partners LLP and others that the doctrine of repudiatory breach does not apply to multi-party LLPs but could potentially apply where an LLP contained just two members.

The Claimant was given an invalid notice attempting to retire him from the LLP. He argued this amounted to a repudiatory breach which he accepted, terminating the LLP agreement. Consequently he argued that the default statutory LLP regulations applied to him which would have entitled him to a pro-rata share of the LLP’s profits, even though the terms of the original LLP agreement continued to apply to other members.

The High Court rejected this argument, noting that it would be offensive to common sense and contrary to reasonable commercial expectations if the effect of a repudiatory breach was that the claimant became entitled to an equal share of profits when the LLP agreement provided him with a fixed allocation of profits and income. The appropriate remedy was instead a claim for damages (if loss had indeed been suffered). This is a welcome clarification of the law for multi-party LLPs as it provides confirmation that the exit terms of an LLP agreement will continue to apply, and will not be substituted by the default statutory LLP provisions, even where there has been an alleged breach. The Court indicated, however, that where an LLP contained just two members, a repudiatory breach may still be possible.

Judicial review of the employment tribunal fees regime fails in the Court of Appeal

The Court of Appeal has dismissed Unison’s judicial review of the Employment Tribunal fees and EAT fees regime. Although the Court noted that the general statistics showed a startling decline in the volume of tribunal cases since the introduction of fees, Unison had failed to present evidence showing the impact of the fees regime on specific individuals and therefore hadn’t proved that those individuals had been denied access to justice. The Court of Appeal also said that the Government could objectively justify introducing the fees regime, so the fees regime wasn't indirectly discriminatory. Unison is looking to appeal to the Supreme Court. In the meantime, the Government is currently conducting its own review of the fees regime.

 

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