Employment Matters - November 2018

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Employment Matters - November 2018

Published 13 November 2018

This month, we look at two Court of Appeal cases, which extend the boundaries of vicarious liability. These cases demonstrate that the courts are willing to find organisations responsible for the actions of their employees even where these actions occur away from the workplace and outside of working hours.

This alert also covers four discrimination cases. The first is the much publicised “gay cake” case, where a baking company was found not to have discriminated on the grounds of sexual orientation when it refused to ice a cake with a message supporting gay marriage.

The second is a decision that calling a disabled employee a “fat ginger Pikey” was not harassment – though under different circumstances, this would be likely to constitute harassment. Another discrimination case follows the continuing trend for the loosening of the causation test for discrimination arising from a disability. The final discrimination claim concerns the failure of an employer to draft job descriptions to accurately reflect the reasonable adjustments it was making.

We also look at a whistleblowing claim where individual directors were found to be personally liable for a whistleblowing dismissal, and a case that clears up confusion around whether or not employment tribunals have the jurisdiction to consider underlying contractual disputes in claims of unlawful deductions from wages. Our final case relates to holiday pay and underlines that employers need to ensure they give workers the ability to take their holiday, and can show they have done so.

The Government is continuing its focus on immigration status for EU staff post Brexit. It has announced that the majority of employees working in the Health and Social Care sector will be able to apply for settled status under the new EU Settlement Scheme pilot between 29 November and 21 December 2018, so there is a brief window of opportunity for EU employees working in health and social care to resolve their immigration status ahead of other EU nationals working in the UK. More information about how we can help you make the most of this opportunity is set out below.

Vicarious Liability: Employer vicariously liable for managing director's assault

An employer was vicariously liable for its managing director’s assault on an employee when drinking in a hotel bar after the company’s Christmas party.

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Whistleblowing: Individual workers can be liable for a whistleblowing dismissal

The Court of Appeal has upheld the EAT’s decision that an employee may bring a claim against a co-worker on the grounds that the employee has suffered the detriment of dismissal for whistleblowing.

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Refusal to provide cake with slogan "Support Gay marriage" not discriminatory

The Supreme Court has held that a bakery did not discriminate against a gay man when it refused to provide him with a cake iced with the words “Support Gay Marriage”.

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Discrimination: Was it harrasment to call a colleague with Type 1 Diabetes a "fat ginger pikey"?

An employee suffering from type 1 diabetes, with strong links to the traveller community, was not harassed or victimised, and did not suffer disability related discrimination when he was called various names.

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Employment Tribunals: Claims of unlawful deductions from wages

The Court of Appeal has held that employment tribunals have jurisdiction to resolve disputes about the construction of the employment contract when determining claims for unauthorised deductions from wages.

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Disability Discrimination: Causation test for discrimination arising from a disability

The causation test for discrimination arising from a disability must not be applied too strictly.

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Disability Discrimination: Despite a failure to issue job descriptions reflecting a disabled employee's adjusted duties, there was no discrimination

Although an employer had not issued job descriptions showing adjustments made to a disabled employee’s duties, the tribunal had correctly looked at the interactions between the employer and employee as a whole.

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Holiday Pay: Employers need to show they have encouraged their workers to take the holiday they have accrued

In two co-joined German cases, the European Court of Justice has looked at the issue of when a worker, who does not apply for their holiday during their employment, loses the right to payment in lieu of untaken leave on the termination of their employment as prescribed by German national law. The ECJ has used this case to set out clearly that workers must be given an opportunity to take their holiday and the onus is on the employer to show that the worker has been encouraged to do so accurately and in good time before the end of the holiday year.

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Data Protection: Employers vicariously liable for a rogue employee's intranet disclosure of 100,000 employees' personal information

The Court of Appeal has upheld a High Court decision that Morrisons was vicariously liable in damages for a data protection breach by a rogue employee whose intention had been to damage Morrisons.

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EU Settlement Scheme: Helping you support EU staff

The Government has announced that the majority of employees working in the Health and Social Care sector will be able to apply for settled status under the new EU Settlement Scheme pilot between 29 November and 21 December 2018.

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Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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