Welcome back to our second edition of our refreshed ‘Need To Know’ employment and HR newsletter. Below are some of our key articles:
- Government U-turn on Public Sector Exit Payments
- Harassment: Is your Training Stale?
- Uber Drivers: Self employed or workers?
HR Bullets
- In Travel Counsellors Limited v Trailfinders Limited, two travel agents left their employment with Trailfinders and retained confidential client information. They provided this confidential information to their new employer, Travel Counsellors, who in turn uploaded the information to its own internal database. The Court of Appeal held that Travel Counsellors were under an equitable duty of confidence, noting that such a duty will arise where a reasonable person in Travel Counsellor’s position would have made enquiries as to whether the information it received was confidential. By abstaining from doing so, and by using the information for its own business, Travel Counsellors had breached this duty of confidence.
- In Chalmers v Airpoint Ltd the Claimant, a Business Support Manager, lodged a grievance with her employer regarding her line manager, alleging that by excluding her from two work events her line manager committed acts that “may be discriminatory”. When her grievance was not upheld, the Claimant brought a victimisation claim against her employer. The EAT dismissed the claim, believing this allegation to be insufficient to amount to a protected act on which a claim of victimisation could be brought. In doing so, the EAT noted that the Claimant’s other complaints had been expressed in clear terms, but that that the Claimant’s allegation that that she ‘may’ have been discriminated against signified doubt and so did not constitute an allegation that she had been discriminated against.
- In Cumming v British Airways plc Ms Cumming, who worked as aircrew for British Airways, brought a claim that a staff policy which provided that aircrew would lose one day of paid leave for every three days of unpaid parental leave they took in a month was indirectly discriminatory against women. The Tribunal initially rejected Ms Cumming’s claim on the basis that the provision, criterion or practice (PCP) (ie the policy) applied to all aircrew equally. The EAT however remitted the claim back to the Tribunal, noting that the key consideration was whether more women were put to a particular disadvantage by the PCP than men in the same circumstances, and not whether the policy applied to all aircrew in general. In this case, there was statistical evidence to show that, amongst both male and female aircrew having childcare responsibilities, more women made use of parental leave than their male counterparts.
- In Gordon v J & D Pierce (Contracts) Ltd, the EAT held that a contract of employment is not affirmed by the parties engaging in a grievance procedure. In this case, Mr Gordon resigned and brought a claim for constructive dismissal against his employer, following a breakdown in his relationship with his manager. Although Mr Gordon’s claim was ultimately unsuccessful, the EAT held that exercising a right of grievance or appeal should not be regarded as an affirmation of the contract as a whole, noting that it would be unsatisfactory if an employee was unable to accept a repudiation because he wished to seek a resolution by means of a grievance procedure.
- The EAT in Clark v Harney Westwood & Riegels has given guidance that, in cases where the identity of an employer is in dispute, caution should be exercised in relation to documents which are created by one party without the knowledge of the other party. In this case Ms Clark had an employment contract with Harney Westwood & Reigels (HWR). Unbeknownst to her she had been named by HWR as an employee of Harneys Gill (HG) on her Cayman Island work permit. When Ms Clark was later dismissed, she brought a claim for breach of contract against HWR. The EAT held that Ms Clark was employed by HWR and not HG and gave general guidance that documents which are created separately from the written agreement, of which one party had no knowledge, risk concentrating more on the private intentions of one party rather then the agreement between both parties.