Our December 2019 update outlines the key UK employment law developments over the last month. It includes cases on covert surveillance, sexual orientation discrimination when there is no identifiable victim, harassment under the Protection from Harassment Act 1997, the doctrine of state immunity as it applies to British civilians working in the UK for a foreign state, the test for interim relief in whistleblowing claims and the latest ECJ decision on holiday carry over in sickness absence cases. We also outline other points of note, including the Government’s response to the Women and Equalities Committee report into the use of NDAs in discrimination cases and an independent review of the international evidence on the impact of minimum wages.

Covert CCTV surveillance to monitor workplace theft was not an infringement of employees’ right to privacy under Article 8 ECHR

The European Court of Human Rights has held that the Spanish courts did not fail to protect the Article 8 ECHR rights of employees when they upheld their dismissals based on footage obtained from concealed cameras in the workplace.

The employees worked as supermarket cashiers. An investigation was launched after significant stock discrepancies were identified, which included installing both visible and concealed cameras. Notices were put up in the supermarket to inform customers and staff that CCTV was being used, but staff were not told about the concealed cameras.

The covert CCTV helped identify the five cashiers who were involved in the thefts and all were dismissed. Their unfair dismissal claims were not upheld by the Spanish courts, which held that the covert CCTV footage had been lawfully obtained. Although employees were not told about the concealed cameras (for obvious reasons), the surveillance was justified based on the employer’s reasonable suspicion of theft and because on the facts, the use of the concealed cameras was deemed a necessary and proportionate means of identifying the perpetrators behind the thefts.

In finding that there was no Article 8 violation, the European Court noted that the employees had a limited right to privacy on the shop floor, the concealed CCTV had been used for a short duration and for a specific purpose, access to the footage had been restricted, and that telling staff about the concealed cameras would have jeopardised the investigation. Accordingly, the Spanish courts had acted within their margin of appreciation in holding the use of the cameras had been proportionate and that the dismissals were fair.

Why this matters

This decision recognises the margin of appreciation afforded to States when applying ECHR principles to private bodies under national law. There will be cases where the use of covert monitoring is appropriate, but UK employers should not read this case as giving them carte blanche to monitor in whatever way they see fit – if monitoring is necessary, it should generally be carried out in the least intrusive manner possible and be targeted at a specific area of risk.

López Ribalda and others v Spain

Anti-gay remarks made by lawyer on radio show could be actionable as unlawful discrimination

The Advocate General has opined that remarks made by a lawyer on an Italian radio show in which he said he would not hire a homosexual person could be unlawful discrimination.

The case was referred to the ECJ by the Italian Supreme Court, after the lower courts in Italy had upheld a discrimination claim brought by an association for LGBT lawyers.

At the time the remarks were made, the law firm in question had not been not actively recruiting. However, the Advocate General said that this did not mean the remarks were not still capable of hindering access to employment. Whether or not this was the case was for the national court to determine, and relevant factors to take into account included the status of the person making the remarks and to what extent they could be said to discourage persons belonging to the protected group from applying for employment.

Why this matters

We now wait for the ECJ’s decision in this case, although it is common for the ECJ to follow the Advocate General’s opinion. As it stands, this is an important reminder that the absence of an immediately identifiable ‘victim’ of the remarks does not mean they are not still potentially actionable, if in all of the circumstances the conduct would deter individuals from the protected group from applying for employment.

NH v Associazione Avvocatura per i diritti LGBTI-Rete Lenford

Interim injunction refused under the Protection from Harassment Act 1997

The High Court has refused to grant an injunction to prevent alleged harassment under the Protection from Harassment Act 1997 (PHA).

The injunction was sought by a male school teacher, following an article which was published on a women’s organisation website titled “Indian Bride, used, abused and discarded by East London school teacher”. The article had been written by a journalist and women’s rights campaigner and purported to give Mr Jagwani’s ex-wife’s account of their marriage and separation. The article was republished on various websites and also shared on social media.

Mr Jagwani also complained that he had been contacted by the author by telephone and text message, that various untrue and defamatory statements about him had appeared on social media and that violence had been incited against him with the use of the hashtag #JustWaitWeAreComingForYou (taken from The Handmaid’s Tale).

The High Court was satisfied that Mr Jagwani had been distressed by these events and his health had been impacted. However, the court was not satisfied that the conduct in question was sufficiently serious to justify an injunction. He had only been contacted once by telephone and text, which was not the ‘course of conduct’ required under the PHA. As to the article and social media comments, there was no exceptional circumstance which justified any restriction on the author’s freedom of expression. Finally, the hashtag could not be viewed as a serious incitement of violence against Mr Jagwani, since it made no reference to him.

Why this matters

This case is a useful reminder of the relatively high threshold for harassment under the PHA. In particular, there must be a ‘course of conduct’ (i.e. at least two occasions), which is oppressive and unreasonable and targeted to cause alarm or distress. This is in contrast to harassment based on a protected characteristic under the Equality Act, which can be a one-off incident.

Jagwani v Alles

British civilians employed by US Government in the UK could not bring UK Employment Tribunal claims

The Employment Tribunal has declined to hear claims from two British civilians who were employed by and worked in the UK for the US Air Force. The Tribunal held that the doctrine of state immunity applied and that to have considered the merits of the claims would have been to adjudicate on the sovereign acts of a foreign state, which was not permissible.

The US Air Force Europe (a division of the US Air Force) operated from various RAF bases in the UK as part of long-standing military co-operation between the two countries. The claimants were employed as local civilian personnel – one in records management and the other as a firefighter. Both claimants brought claims in the UK Employment Tribunal for unfair dismissal and discrimination. The UK Air Force disputed the Tribunal’s jurisdiction to hear the claims based on state immunity, without commenting on the merits of the claims.

At a preliminary hearing, the Employment Judge held that the correct respondent was the United States (not the US Air Force Europe or US Air Force as neither had any separate legal personality distinct from the state) and further that the United States had the benefit of state immunity. As a matter of fact, the Tribunal found that both claimants were involved in governmental functions and therefore common law state immunity applied. Further, that the United States could not be said to have submitted to the jurisdiction since they had taken no steps in the proceedings other than to claim immunity.

Why this matters

The doctrine of state immunity has received increased attention recently, including following the death of Harry Dunn in a traffic collision near RAF Croughton. There is a feeling that it can lead to apparent injustices, as noted by the Employment Judge in this case when he expressed his personal sympathy with the claimants. However, it is important to note that all cases involving foreign states will turn on their facts, including whether or not the employees in question are truly engaged in a governmental function such that the immunity applies.

Webster and another v United States of America

‘Likely to succeed’ test applies to all elements of the Claimant’s claim where interim relief is sought in a whistleblowing claim

The EAT has held that a claimant who makes an application for interim relief in an unfair dismissal case, must satisfy the Tribunal that their claim is ‘likely to succeed’ in all respects.

Interim relief is a remedy available in certain types of unfair dismissal claims, including whistleblowing cases. If granted, it requires the employer to continue to employ (and pay) the employee until final determination of the claim at trial. The test which the Tribunal must apply in determining the application is whether the claim is ‘likely to succeed’ at trial.

In this case, unfair dismissal claim was brought by a dentist whose agreement with the dental practice in which he worked had been terminated, allegedly after he raised concerns about the fitness to practice of another dentist. As well as issuing his substantive claim, he also made an application for interim relief.

There was a question mark over the dentist’s employment status. The agreement between the dentist and the dental practice stated that it was not a contract of employment, albeit the nature of the working relationship had many features of a traditional employer/employee relationship.

The Tribunal granted the interim relief application without first holding a preliminary hearing to determine the question of the dentist’s employment status. The Tribunal held that the interim relief application was by its nature an assessment of whether the claimant was likely to succeed at trial, including an assessment of whether the claimant was likely to succeed on the issue of employment status. In this case the Tribunal was satisfied that on the facts the issue of employment status was likely to be resolved in the claimant’s favour and that as a whole the claim was ‘likely to succeed’ at trial.

The claimant appealed the Tribunal’s decision. However, his appeal was dismissed by the EAT which endorsed the approach the Tribunal had taken.

Why this matters

This is helpful clarification of the hurdles which a claimant must overcome in making an interim relief application. Whilst interim relief applications remain relatively uncommon, an employer who finds themselves on the receiving end should ensure that they are sufficiently prepared to challenge all aspects of the claimant’s claim at this early stage, including any jurisdictional issues which may arise on the facts.

Hancock v Ter-Berg and another

Holiday carry over can be limited to four weeks in sickness absence cases

In a referral from the Finnish Labour Court, the ECJ has confirmed that it is permissible for Member States to impose a 4 week limit on the amount of holiday that can be carried over from one leave year to the next in cases where a worker is prevented from taking all of their leave in the relevant year due to ill-health. This is notwithstanding that the Member State may provide for a more generous holiday entitlement under national law than the four weeks provided for under the Working Time Directive.

Why this matters

Helpfully, this decision confirms the approach taken by the EAT in Sood Enterprises Ltd v Healy. In Sood, the EAT held that there was no requirement to allow a worker who was prevented from taking holiday due to ill-health to carry over the full 5.6 weeks’ holiday granted under the Working Time Regulations (which implements the Working Time Directive in the UK). Employers can therefore continue to limit carry over of holiday in sickness absence cases to the four weeks’ leave under the Directive, with the comfort that there is now also ECJ authority on the point.

Terveys-ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan liitto ry

Roundup of other developments

Government responds to Women and Equalities Committee report on NDAs in discrimination cases

In the Government response to the Women and Equalities Committee report on the use of NDAs in cases involving discrimination and harassment, the Government has confirmed that it intends to introduce legislation in this area, including limiting the use of confidentiality clauses in employment contracts and settlement agreements. However, some of the more radical recommendations in the Committee’s report will not be adopted, and others will considered by the Government further.

Government publishes independent review into the international evidence on minimum wages

The Government has published the findings of the review undertaken by Professor Arindrajit Dube into international evidence on the impact of minimum wages. The review concludes that minimum wages in a number of countries have had a minimal impact on jobs but have increased the earnings of the lowest paid workers. The review was commissioned by the Conservative Government in order to inform policy on the minimum wage, with the current Chancellor announcing plans to increase the National Living Wage (‘NLW’) to £10.50 an hour by 2024 and to reduce the threshold for the NLW from age 25  to 21.

Legal challenge to Government’s alleged digital discrimination of visa applications

The Home Office is facing a legal challenge from the Joint Council for the Welfare of Immigrants (‘JCIW’) which alleges that its software is creating a ‘digital hostile environment’ for immigrants, with an algorithm that allegedly discriminates based on characteristics such as nationality or age. The JCIW is seeking clarity over how the technology is used. The Home Office is defending the legal challenge and maintains that the technology is intended to improve efficiency, that it fully complies with equality legislation and that caseworkers ultimately decide the outcome of all visa applications.

ICO guidance on special category data

The ICO has published guidance on special category data, highlighting the importance of identifying such data and handling it carefully. The guidance is aimed at individuals within larger organisations who have responsibility for data protection.