Employment Law Update – August 2020

Our Employment Law Updates are back!

Following the challenges COVID-19 has brought us, we are aiming for a little normality with our updates, providing an overview of legislation changes and recent case law, with a summary of what that means for your people and your business.

We will continue to provide COVID-19 updates as and when they arise.

DISABILITY DISCRIMINATION: ‘BECAUSE OF’ OR ‘BUT FOR’?

In the case of Robinson v DWP, the Court of Appeal considered whether, in a disability discrimination claim, the tribunal should consider if the treatment complained of was ‘because of’ disability or ‘but for’ disability.

Facts:

The Claimant brought complaints of discrimination for reasons arising from disability and failures to make reasonable adjustments after grievances weren’t properly addressed, and screen magnification software couldn’t be adapted for her use with a particular computer system.

The tribunal initially upheld her complaint of discrimination for a reason arising from a disability. However, the Employment Appeal Tribunal overturned this decision.

The Court of Appeal, like the Employment Appeal Tribunal, held that the facts found by the tribunal could not support findings of discrimination. Both direct discrimination and discrimination for something arising from a disability require the tribunal to decide whether the treatment complained of was because of the disability.

A tribunal therefore has to consider the thought process and motivation of the decision-maker(s). It is not enough for a claimant to show that ‘but for’ disability, they would not have been in the unfavourable situation.

Comment:

Although this case highlights that the relevant question in a disability discrimination case is whether an employee suffered less favourable or unfavourable treatment as a result of their disability, employers must still be careful that their policies and practices are not indirectly discriminatory in that they, by their nature, disadvantage disabled employees.

ANONYMOUS WITNESS EVIDENCE IN DISMISSALS

In Tai Tarian Ltd v Christie, the Employment Appeal Tribunal held that, in the circumstances, it was not outside the range of reasonable responses to dismiss an employee based on the evidence of an anonymous witness.

Facts:

Tai Tarian Ltd (TT Ltd) is a housing association, which employed the Claimant as a carpenter. A tenant of TT Ltd alleged that the Claimant had made homophobic comments to her. The Claimant was subsequently dismissed. The tenant had been interviewed by two managers of TT Ltd, but she requested anonymity and was therefore not interviewed by the managers who made the decision to dismiss the Claimant.

The employment tribunal came to the decision that the dismissal was unfair, as relying on an anonymous account and failing to take other steps to ensure that the Claimant had a fair hearing was outside the range of reasonable responses.

However, the Employment Appeal Tribunal found that the tribunal had not demonstrated any good reason for its conclusion that TT Ltd could not have reasonably accepted the tenant’s evidence as truthful.

Comment:

The case shows that it is possible for a dismissal on the basis of anonymous evidence to be within the range of reasonable responses an employer can take. However, employers should be very careful when attempting to dismiss on the basis of anonymous evidence, and should document clear reasons for believing the evidence to be true, and for permitting the evidence to be given anonymously.

EMPLOYER NOT LIABLE FOR EMPLOYEE’S DATA BREACH

In the case of Wm Morrison Supermarkets plc v Various Claimants, the Supreme Court held that Morrisons was not vicariously liable for the unauthorised uploading of payroll data to the internet by an employee using his personal equipment at home on his day off.

Facts:

S, a senior IT internal auditor, was employed by Morrisons. He held a grudge against his employer for a previous disciplinary warning. When tasked with transmitting payroll data for the entire workforce to external auditors, he also released this data onto a public file-sharing website and anonymously sent it to three newspapers.

A large number of Morrisons employees whose data had been disclosed brought a claim against Morrisons for compensation. They contended that Morrisons had both primary liability for its own acts and omissions, and vicarious liability for S’s actions.

The High Court decided that Morrisons bore no primary responsibility, but the issue of vicarious liability made it all the way to the Supreme Court.

The Supreme Court explained that the question which needed to be asked was whether the conduct was so closely connected with acts that the employee was authorised to do that it may fairly and properly be regarded as done by that employee in the ordinary course of their employment. Whether the employee is acting on the employer’s business or for personal reasons is important.

The Supreme Court found that S’s wrongful disclosure of the data was not so closely connected with the task he was authorised to do that it could fairly and properly be regarded as made by S while acting in the ordinary course of his employment. The fact that his employment had given the opportunity to commit the wrongful act was not sufficient. It was clear that S was pursuing a personal vendetta.

The Supreme Court found Morrisons not to be vicariously liable for the actions of S.

Comment:

This case should give some comfort to employers in that they are unlikely to be held liable for data breaches caused by employees acting on personal grudges, provided that their actions are not closely connected with the acts they are authorised to do as part of their employment.

If you would like any further information on the above developments please contact a member of the Employment Team.