HR Two Minute Monthly: equal pay; employment status; data protection

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Uber drivers are workers but not employees

The tribunal has handed down its much anticipated judgment in Aslam, Farrar and others v Uber BV and others. Despite being labelled as self employed by Uber, the tribunal found that the individuals were in fact workers and as such entitled to paid annual leave, restrictions on working time, minimum and national living wage and protection under whistleblowing legislation.

Whilst Uber has already said that it intends to appeal, the decision serves as a reminder to employers that employment status is ultimately a legal question and not solely determined by the label applied by the parties. It also highlights a growing concern about “gig economy” business models which rely on a new type of self-employed workforce. With the Government already reviewing these “modern working practices” and HMRC placing an increased focus on investigating self-employed status, this is an area where further developments are likely.


Holiday pay – Lock v British Gas - the saga continues

The Court of Appeal in Lock v British Gas has upheld previous decisions and confirmed that the Working Time Regulations can be interpreted to include results-based commission in holiday pay. However, with an appeal to the Supreme Court in prospect, this decision is not necessarily the trigger for employers to make proactive changes to holiday pay calculations. Our article on the latest Lock decision explains what this decision means for you.


Discrimination arising from disability: an employer must justify its treatment of the employee – not just the underlying policy

In Buchanan v The Commissioner of Police of the Metropolis, a disabled police officer on long term sickness absence brought a claim of discrimination arising from disability. He claimed that the employer’s performance management procedure gave rise to unfavourable treatment. The issue before the EAT was whether the employer had to objectively justify only the performance management procedure itself or whether it was required to objectively justify the employee’s treatment under the policy.

When defending a claim for direct age discrimination or discrimination arising from disability, it is the employer’s treatment of the particular employee that must be scrutinised. However, in some cases, the treatment complained of may be the direct result of applying a general rule or policy so that there is little distinction between justifying the rule and justifying its application in a particular case. By way of example, the EAT referred to the mandatory retirement clause in Seldon v Clarkson Wright & Jakes.

In Buchanan, however, (as in most situations), the complaints referred to a series of specific actions taken under a performance procedure which allowed for assessment in each case and at each stage of the process. The EAT confirmed that it was each of these actions that needed to be justified, having regard to the circumstances of the particular employee, not just the application of the policy in general terms.


Equal pay – Asda stores employees can compare themselves to depot workers

There has been another preliminary ruling by the employment tribunal in the Brierley and others v. ASDA Stores Ltd litigation. The case concerns equal pay claims from about 7,000 current and former hourly paid store colleagues, who are predominantly female. The claimants argue that the (predominantly male) workers in ASDA’s distribution depots are doing work of equal value to them, and yet are being paid substantially more. An analysis of this case can be read on our blog.


Compensation for discriminatory shared parental pay policy

Snell v Network Rail Infrastructure Ltd is one of the first reported cases on the question of enhancing shared parental pay. It was widely reported in the press as a victory for fathers but that is potentially misleading. In fact, Network Rail had conceded liability for discrimination. This concession was unsurprising given that only female employees were entitled to receive enhanced shared parental pay under the company policy. Male employees taking shared parental leave under the same policy were only entitled to statutory pay.

The tribunal did not consider the bigger question of whether an employer can legitimately pay only statutory pay for shared parental leave to both male and female employees where enhanced pay for maternity leave is offered. We are still awaiting a test case that considers the government’s view that shared parental pay does not need to be enhanced in such circumstances.


Two cases on data protection

The approach to a DSAR where consent to disclosure of third party data is refused

In Dr DB v General Medical Council the High Court declined to order disclosure of a document which contained personal data of both the individual making the DSAR (data subject access request) and a third party doctor. It was not possible to disclose the personal data of the data subject without also disclosing the doctor’s personal data. The doctor had refused his consent to disclosure and competing privacy rights were therefore central to the court’s decision.

In weighing up these competing rights, the court’s starting point was a presumption against disclosure without the doctor’s consent. The doctor’s privacy rights included the protection of his professional reputation. He had a reasonable expectation that the report, the real focus of which was his professional competence, would not be disclosed without a careful weighing up of his and the data subject’s rights and that it would be kept confidential in line with the GMC’s usual practice of disclosing only a summary. Finally, the court had regard to the purpose of the DSAR, namely intended litigation against the doctor rather than ensuring the accuracy of personal data as contemplated by the Data Protection Act 1998. Importantly, where a document is disclosed in the course of litigation, the Civil Procedure Rules place restrictions on the use of the document. This protection would not apply to the doctor’s personal data if disclosed in response to the DSAR.

The case is a useful example of how the courts balance competing rights where third party data is involved. However it is important to remember that it is also possible for an aggrieved data subject to make a complaint to the Information Commissioner’s Office (“ICO”) free of charge. The ICO typically takes a broader view of a data subject’s rights. For example, it is less willing to consider the data subject’s intention or underlying purpose for making a DSAR. Enforcement action by the ICO can include criminal prosecution, non-criminal enforcement and audit. It may impose a fine on a data controller of up to £500,000.

Damages for data protection breaches

Also this month, the County Court awarded a former police officer £9,000 in damages following a data protection breach by her former employer and associated police forces, which improperly accessed her personal information. The employee in Brown v Commissioner of Police of the Metropolis and Chief Constable of Great Manchester Police had travelled overseas whilst on sick leave without informing her line manager. In preparation for disciplinary proceedings, the employer sent an information request to the body responsible for maintaining a UK flight passenger database, which in turn disclosed a significant amount of personal data relating to both the employee and her daughter. The award was apportioned between the bodies which made and responded to the personal data request. Importantly, the award of £9,000 was made on account of the employees distress and upset, even in the absence of financial loss or personal injury.

Both cases are an important reminder of the importance of data protection awareness as companies continue their preparation for the General Data Protection Regulation which comes into force from May 2018. This article considers the impact of Brexit on implementing GDPR for UK companies.


Responsibility of acts of non-employee agents

An employer is vicariously liable not only for acts of its employees in the course of their employment, but also for certain acts of its non-employee agents. Such liability arises for acts of the agent with the authority of the principal. It is therefore important for a business to ensure that all individuals for whose actions it has responsibility are aware of its anti-discrimination and general conduct policies.

Unite the Union v Nailard recently provided a reminder of this important principle. Although the two workplace officials were not employees of the union, it was nevertheless liable for their acts of bullying and sexual harassment towards a union employee in the course of their union activities. It was no defence for the union to say that it had not authorised the officials to behave in a discriminatory way. The officials were acting as agents for the union because they were carrying out work on its behalf in their dealings with local members, officers, other trade unions and employers. It was in this context that the discrimination had occurred.


Flexible working arrangements for breastfeeding mothers

In McFarlane v easyJet Airline Company Ltd the tribunal upheld claims against the airline after it refused flexible working requests received from breastfeeding mothers. The employees had requested not to be rostered for shifts longer than eight hours. The refusal of the flexible working requests amounted to indirect sex discrimination which could not be justified. The case demonstrates again that employers seeking to argue that their decision-making is objectively justified must put forward concrete evidence in support of their position. In this case, the airline was unable to adequately back up its argument that the proposed rosters would cause serious operational difficulty. A witness conceded that a small number of bespoke rostering arrangements would perhaps not restrict the airline’s flexibility to manage supply and demand.

The case is also an important reminder that breastfeeding mothers have the right to be offered temporary suitable alternative work, or the right to a paid suspension from work on health and safety grounds in the same way as pregnant employees.


Employment law and Brexit

Finally, by way of employment law Brexit update, the Prime Minister has announced at the Conservative Party conference that after triggering Article 50, it is the Government’s intention that current employment rights will remain protected under domestic law.

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