Employment Tribunal Update - November 2018
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Employment Law Update – November 2018

It’s getting cold outside! Put the kettle on and take some time to get stuck in to Novembers employment tribunal update. This month, we cover a host of cases which pose some interesting questions, with answers that may take you by surprise. Within these cases, there is an important reminder that the unique factual matrix of a case has a significant impact on the outcome, even when faced with a seemingly obvious conclusion. For full case summaries, you can sign up to receive our monthly employment law update here.

The case of Evans v Xactly is a prime example, as the Employment Appeal Tribunal concluded it was not harassment to call an employee a ‘fat ginger pikey’. It was determined that because the Claimant had been actively involved in banter between colleagues, the alleged discriminatory comments could not have created an intimidating environment that violated his dignity. Perhaps a surprising decision at first glance but less so when we consider the nature of the working environment. However, employers should be slow to take comfort from this decision, as the culture described was not one many would aspire to.

Issues surrounding discrimination are rarely clear cut and employers should take the time to ascertain details of all and any issues, as well as exploring the cause (or causes) of any potential discrimination. There is also a need to be mindful that there may be more than one link in the chain of causation. The case of Sheikholeslami v University of Edinburgh demonstrates that discrimination arising from a disability can be the result of several connected issues and not just a one-step cause. In this case, the reason for the unfavourable treatment (dismissal) was the Claimant’s refusal to return to work, which was linked to her poor relationships with colleagues which were a consequence of disability. The Tribunal had applied the wrong test when they asked whether dismissal was simply because of her disability.

The question in Lee v Ashers Bakery – is it discriminatory for a devout Christian baker to refuse to bake a cake bearing the message ‘Support Gay Marriage’? No, the Supreme Court has said, concluding that refusing the order was not direct discrimination on the grounds of sexual orientation. The less favourable treatment related to the message, not the man and the bakery would have refused the same order had it been requested by someone heterosexual. Although not an employment case, employers should be aware that the same legal principles could apply in the workplace and employees holding strong political or religious views may be bolstered by this case. Ensuring everyone is aware of and up to date with the relevant equality and diversity policies and procedures is essential.

The safe storage of personal data is vital for employers, and GDPR should be at the forefront of an employer’s mind. So, can an employer be held responsible for the actions of an employee who has ‘gone rogue’ and deliberately posted sensitive employee data online? Yes, the Court of Appeal has said in Morrisons v Various Claimants. The Court of Appeal agreed that Morrisons was vicariously liable and highlighted that to conclude otherwise might leave an individual who suffered financial loss (because of a data breach) with no recourse except against the perpetrator. A warning that safe storage of data must be a priority and even the most trusted of employees should be subject to safeguards if they have access to sensitive personal data.

With further consideration of vicarious liability – one of this month’s cases asks, is an employer liable for a drunken assault which happens after a work party has finished? Sometimes, said the Court of Appeal in Bellman v Northampton Recruitment. The facts of this case are quite unusual as employers will not usually be liable for work arguments between colleagues which lead to an assault.

However, in this case, there was enough connection between the attacker’s role as Managing Director (‘MD’) and the assault. His remit and authority in the business were very wide and he had organised the event which was paid for by the business. At the time of the assault, he was lecturing his staff about work and the Court concluded that the attack arose out of a misuse of his position as MD. The facts of this case are quite unusual. Despite the specific nature of this case, employers should ensure that managers and staff are properly trained to ensure that they behave professionally at work-related events.

Finally, the Court of Appeal have confirmed that an employment tribunal can resolve disputes about the meaning of contractual terms when dealing with an unauthorised deduction from wages claim. In Agarwal v Cardiff University, the tribunal held that if a contract was unclear, the correct claim was for breach of contract in the county court (because employment tribunals cannot hear breach of contract claims brought during employment). However, the Court of Appeal confirmed that this was not the case otherwise, dealing with unauthorised deduction claims would be almost impossible except in the most clear-cut cases.

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