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Employment law case updates - February 2014

28 February 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

Will a covenant restricting solicitation be valid where contact information is available online?

Given the increasing use of the internet and social media this is a helpful case for employers seeking to protect customer connections. A recruitment consultancy succeeded in its claims for breach of a six month restrictive covenant that prevented its former employee from soliciting or dealing with clients or candidates for teaching positions with whom she had dealt in the 12 months prior to the termination of her employment.

The High Court held that there was a legitimate proprietary interest to protect in the relationships that the employee had built with schools and teachers during her employment even though information about them was available through social media and there is little loyalty displayed by schools or teachers to a particular individual or recruitment consultancy.

(East England Schools CIC (trading as 4myschools) v Palmer and another, High Court)

Breach of contract was not cured by withdrawal of dismissal decision

An employee appealed against the termination of her employment for redundancy, arguing that she was not properly consulted prior to the decision being made. Her employer agreed to re-start the redundancy process from the beginning and withdrew its notice of termination.

However, the employee resigned and claimed constructive dismissal on the basis that the defective redundancy process was a fundamental breach of the implied term of trust and confidence. The employer argued that its withdrawal of the notice of dismissal meant that the breach of contract had been cured, however the Employment Appeal Tribunal (EAT) disagreed.

(Gebremariam v Ethiopian Airlines Enterprise (t/a Ethiopian Airlines), EAT)

Expiry of a fixed term contract did not trigger collective redundancy consultation

The Scottish Court of Session considered whether the expiry and non-renewal of the fixed term employment contracts of four individuals triggered collective redundancy consultation obligations. This may be required in relation to dismissals "for a reason not related to the individual concerned". The Court held that one of the reasons for the dismissals was the fact that the employees had agreed that their employment would come to an end at a particular date or on completion of a particular project and that this was a reason relating to the individual.

Therefore the expiry of the fixed term contracts were not dismissals that could trigger collective consultation obligations. This decision is welcome news for employers. The law has also now been changed to provide that dismissals on the expiry of a fixed term are specifically excluded from collective consultation obligations.

(University College Union v University of Stirling, Court of Session)

Who is the correct comparator for claims of indirect religious and race discrimination?

The Prison Service's pay system is currently based on an employee's length of service. Up until 2002, the Prison Service only employed Christian chaplains. A Muslim chaplain who commenced employment in 2004 argued that the pay system placed Muslim chaplains at a disadvantage when compared against all chaplains (including Christian chaplains employed before 2002) and therefore that the pay system was indirectly discriminatory on the grounds of race and religion.

The EAT dismissed the claim, holding that the correct comparator is a person in the same position as the claimant, but for the protected characteristic. In this case, it was a chaplain of another religion (or race) who commenced employment at the same time as him. The EAT therefore concluded that the Claimant had been treated in exactly the same way as all other chaplains employed at that time.

(Naeem v Secretary of State for Justice, EAT)

Blacklisted agency worker had no employment status and therefore no right to claim

An agency worker claimed that he had been dismissed from assignments as a result of his trade union and health and safety activities that caused him to be placed on a construction industry blacklist. He claimed unlawful detriment. At the relevant time, this claim could only be brought by an employee. The EAT therefore considered whether an employment relationship could be implied between him and the construction companies.

The EAT concluded that, notwithstanding that the decision left the agency worker without a remedy, it was not necessary to give effect to the reality of the relationship in this case to imply a contract of employment between the agency worker and the construction company. The law has now changed to give specific rights to those blacklisted, which apply to both employees and workers.

(Smith v Carillion (JM) Limited and another, EAT)

A protected disclosure can be made in more than one email

The EAT has held that three separate emails sent to two different recipients within an organisation, which set out concerns about staff driving in snowy conditions in the winter of 2010, could collectively amount to a protected disclosure for the purposes of whistleblowing legislation even though each individual email was not a protected disclosure. The EAT decision suggests that it may have taken a different view had the final recipient not known what had been communicated to the other recipient previously.

It is, nevertheless, a caution to employers to investigate any previous correspondence or complaints that an employee has had regarding his concerns with others within the organisation, particularly if he has specifically referred to such communications.

(Norbrook Laboratories (GB) Ltd v Shaw, EAT)

Is the current definition of "race" wide enough to cover "caste"?

An Employment Tribunal has held that a claim for caste discrimination can be brought under the existing wording of the Equality Act, even though it is not currently an express protected characteristic.

The Tribunal considered that the definition of "race", which includes "colour; nationality; ethnic or national origin" is wide enough to include caste, which it viewed as a factor of both nationality and religion (albeit that it did not specifically consider a religion or belief discrimination argument).

The Government has committed to amending the Act to expressly include caste as a protected characteristic and currently expects to make this change in 2015.

(Tirkey v Chandok and another, Employment Tribunal)

This article was written by Kirsti Laird.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com