An Interesting Start to 2018

There have been some interesting judgments to start the year so here is a brief summary of a few of them.

These deal with:

  • jurisdiction in relation to claims against individuals based overseas
  • the rights of workers to paid annual leave
  • sex discrimination where boys and girls are educated separately in the same school
  • whistleblowing and knowledge

Bamieh v EULEX Kosovo and ors – EAT

EAT held that an employment tribunal had territorial jurisdiction to hear whistle-blowing claims brought by a Foreign and Commonwealth Office (FCO) employee against two co-workers, despite both co-workers being on secondment in Kosovo.  The EAT applied the conventional principles set down by the House of Lords in Lawson v Serco Ltd and by the Supreme Court in Duncombe v Secretary of State for Children, Schools and Families, namely whether the connection with Great Britain and British employment law was sufficiently strong, and held that, in this case, it was.

King v The Sash Window Workshop Ltd and anor – ECJ

In this case, the ECJ held that, on termination of employment, a worker is entitled to be paid for any periods of annual leave that have accrued during the whole of the employment where it wasn’t taken because such holiday would have been unpaid.  This contrasts with the situation of an employee who, because of a period of long-term sick leave, has not been able to take all his/her holiday entitlement during the relevant holiday year.  In that case, the employee is entitled to carry the holiday over to the next holiday year but domestic legislation may limit the period for which the holiday is carried over to a specific period of time during which, if it isn’t taken, the right to it lapses.

The reason for the distinction is that, in the case of an employee who is sick, there naturally needs to be a balance between the rights of the employee and the rights of the employer because an employer might otherwise be faced with the risk that a worker will accumulate periods of absence of too great a length causing too great and costly a disruption.  However, for a worker who has never been paid during periods of annual leave, there is no such requirement to protect the employer as an employer who does not allow a worker to exercise his or her right to paid annual leave must bear the consequences.

HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School – CA

In this case the CA overturned the High Court’s decision that a school’s complete gender segregation of pupils aged nine to sixteen was not sex discriminatory.  Whilst the majority of the Appeal judges felt that there was no greater harm to girls than to boys (Lady Justice Gloster dissenting), the judges were unanimous in holding that segregation of the sexes in a mixed school amounted to direct sex discrimination against both boys and girls contrary to ss. 13 and 85 of the Equality Act 2010 and was therefore unlawful.  This is because, as s. 13 refers to a person, it is necessary to view the treatment from the perspective of a given individual.  Further, the denial of the opportunity to mix with individuals of the opposite sex was clearly a detriment within the meaning of s.85 when one looked at the evidence of the Ofsted reports into the effects of the segregation on the pupils.

Royal Mail Ltd v Jhuti – CA

In this case it was held that, if the person who makes the decision to dismiss a whistle-blower is unaware of the disclosures that were made, then those disclosures cannot be the employer’s principle reason for the dismissal (which would need to be the case if the employee were to succeed in demonstrating that it was an automatically unfair dismissal).  This is deemed to be the case even, as in this case, when the decision to dismiss has been manipulated by someone else who was aware of the disclosure.

This contrasts with detriment cases where a person will be regarded to have been subjected to a detriment on grounds of his or her protected disclosure where that disclosure had a material influence on the decision to subject him or her to a detriment.

However, although the decision to dismiss was not found to have been unlawful, the Claimant was not automatically precluded from claiming loss of earnings as part of her detriment claim.  If she could demonstrate that the unlawful detriment caused the subsequent losses, then she would be entitled to such compensation.  This is something to be determined by the employment tribunal at the remedies hearing and will need to take account of s.47B(2) of the Employment Rights Act which expressly precludes a claim of detriment that amounts to a dismissal.

Future claimants in this situation may be able to mitigate against the risks of simply pursuing the employer for automatically unfair dismissal by also bringing a detriment claim against the “manipulator” under s.47B(1A) and then pursuing the employer for vicarious liability for this detriment under s.47B(1B).

 

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