Our October update considers recent developments in employment law, including cases on the whistleblowing public interest test, whether vegetarianism is a protected belief under discrimination law, and employment status. We also outline other points of note, including guidance published by the Banking Standards Board on regulatory references, the latest employment tribunal statistics and revised immigration arrangements in the event of a no-deal Brexit.

Raising data protection concerns was sufficient to satisfy the whistleblowing public interest test

The Employment Appeal Tribunal (EAT) has confirmed that an employee was entitled to whistleblowing protection when she had a reasonable belief that alleged data protection breaches by her employer were in the public interest.

The employee worked for a small charity which among other things supports victims of domestic violence. Due to performance concerns, the employee’s probationary period was extended. The employee subsequently raised concerns that, given the nature of the sensitive and confidential personal information she dealt with, the charity was in breach of data protection legislation by failing to provide her with her own mobile phone and also with secure storage facilities to hold client records. The employer subsequently terminated her employment on performance grounds. The employee brought a claim that she had been automatically unfairly dismissed for blowing the whistle.

The employment tribunal found that the complaints raised by the employee were not in the public interest as they concerned her own contractual position, which prevented her from succeeding in her whistleblowing claim. However, on appeal, the EAT disagreed. The employment tribunal had failed to explore the extent to which the employee had reasonably believed the disclosure about data protection issues was in the public interest. Given the sensitive information involved, the EAT said it would hard to see that her complaints would not be in the public interest.

Why this matters?

This case confirms that it is sufficient for a claimant to have a reasonable belief that their disclosure is in the public interest. It also confirms that having public interest concerns does not need to be the individual’s only motivation for making the disclosure – they can at the same time be motivated by matters relating to their own contractual position.

Okwu v Rise Community Action

Vegetarianism held not to be a protected belief under discrimination law

Religion or belief is a characteristic that’s protected under UK discrimination law. In this case, the Employment Tribunal considered whether vegetarianism constituted a belief that qualified for discrimination protection.

The Employment Tribunal acknowledged that vegetarianism was worthy of respect in a democratic society. However, it said that the belief failed to satisfy the other requirements necessary for it to gain discrimination protection. Firstly, vegetarianism was not about a weighty and substantial aspect of human life and behaviour. It is a lifestyle choice. Further, the claimant’s belief didn’t attain a sufficient level of cogency, seriousness, cohesion and importance to merit discrimination protection. The reason for being a vegetarian differs greatly between individuals, who may adopt the practice for many different reasons such as lifestyle, health, diet, concern about the way animals are reared for food, and personal taste. On this point, the Employment Tribunal distinguished veganism from vegetarianism, saying that veganism might be capable of discrimination protection as the reasons for being a vegan appear to be largely the same.

Why this matters?

Although this decision is not binding on other Employment Tribunals, it is helpful for employers as it demonstrates the high threshold required for a belief to get discrimination protection under UK law. It will be interesting to see whether the comments made in this case on veganism will be endorsed in a separate case that the Employment Appeal Tribunal is due to hear in the near future.

Conisbee v Crossley Farms Ltd and others

Out-of-hours GP was a ‘worker’, despite having her remuneration paid via a personal service company

Dr Narayan was a duty doctor, registered with Community Based Care Health Limited (‘CBCH’), a company providing out of hours services to the NHS. Dr Narayan had worked regular shifts at CBCH on a 12 week rota since 2005. In 2015, she set up an intermediary company which received income from CBCH from the work she carried out. She did not inform CBCH about setting up her company and only supplied CBCH with the company bank details for payment purposes.

CBCH later ceased to offer Dr Narayan work and she brought various claims in the Employment Tribunal including for unpaid holiday pay. The EAT, agreeing with the Employment Tribunal below, held that Dr Narayan was a worker rather than self-employed, and so was entitled to bring the holiday pay claim. The Employment Tribunal had considered the key features of Dr Narayan’s role including that she had worked regular shifts for around 12 years, was required to work personally and was integrated into CBCH’s operations. The Employment Tribunal was therefore entitled to find that she was a worker. Setting up a limited company to receive her remuneration did not change this – on the facts, CBCH still contracted directly with her, rather than with her limited company.

Why this matters?

The question of employment status is fact-specific. However, this case highlights that even if a business believes it is engaging self-employed individuals, if the reality of the arrangement is one where the individual has worker status, the individual will be entitled to various employment rights. The employment status of the individual is also relevant for income tax and National Insurance Contributions (NICs) purposes. In this regard, the forthcoming changes to off-payroll working rules from April 2020 will require employers to correctly determine for tax and NICs purposes the working relationship of individuals who are engaged via a personal service company. You can review BCLP’s analysis of the off-payroll working rules changes here.

Community Based Health Care v Narayan

Round up of other developments

Regulatory references: The Banking Standards Board has published the final version of its statement of good practice relating to regulatory references under the SMCR regime. The statement of good practice provides a set of principles and guidance when providing and obtaining regulatory references, and details the type of information to include in a reference. Whilst Banking Standard Board members are not required to follow the guidance, it provides a useful reference point for firms.

Employment Tribunal statistics: The Ministry of Justice has published tribunal quarterly statistics for the period April 2019 – June 2019. During this period, single employment tribunal claims have increased by 14% when compared to the same period in 2018, continuing the trend over the past two years of an increasing volume of employment tribunal litigation.

Revised immigration plans in the event of a no deal Brexit: The Government has published revised immigration arrangements for EU citizens should there be a no-deal Brexit. The arrangements cover EU citizens (and those from Iceland, Liechtenstein, Norway and Switzerland) and their family members living in the UK before Brexit as well as those who arrive post-Brexit. The new arrangements replace those set out in the policy paper published by the Government on 28 January 2019.