The Trust pay Ms Brazel on a monthly basis according to the number of hours worked in the previous month, but she is paid her holiday pay at the end of every term. When calculating Ms Brazel’s holiday pay, the Trust followed Acas guidance on casual workers by using the rate of 12.07% per hour worked. Ms Brazel argued that was not the correct calculation under the Working Time Regulations and produced a lower figure. She disagreed that her holiday pay should be pro-rated simply because she did not work a full year.

Ms Brazel’s claim for unlawful deduction of wages failed in the Employment Tribunal, but her appeal to the Employment Appeal Tribunal was successful. The Trust appealed to the Court of Appeal.

The question for the Court of Appeal to decide was, by which method should Ms Brazel’s payments for annual leave be calculated?

The Court of Appeal coined a new term to describe employees in Ms Brazel’s situation – “part-year workers”. The Court felt that it was not apt to call such employees “term-time workers” as that denoted employees who are only employed during the term, while Ms Brazel was employed all the year round, albeit she only worked during term time.

Importantly, the Court decided that the position of a part-year worker such as Ms Brazel was not the same as a part-time worker, so there was no need to apply pro-rating as one would with the latter type of worker. This meant Ms Brazel’s holiday pay should be calculated by first determining a week’s pay – her average weekly remuneration during the previous 12 weeks – and then multiplying that figure by 5.6. This would make Ms Brazel’s holiday pay 17.5% of her actual earnings as opposed to the 12.07% rate used by the Trust.

The result is that a part-year worker will get higher holiday pay than a full-year worker, but the Court did not consider this to be “unprincipled or obviously unfair”:

“the actual days from which they will be relieved, and the quantum of their holiday pay, will reflect their actual working pattern.” Court of Appeal

This case will have implications for employers of part-year workers, such as teaching institutions, as these workers may complain about the size of their holiday pay or bring claims for unlawful deductions. There is some comfort for employers that such claims have a retrospective limit of two years.

Any employers who currently use the 12.07% rate to calculate holiday pay for permanent part-year workers would do well to review their employment contracts and assess their potential litigation exposure. The benefit of moving to calculate holiday pay on the basis [...]]]> http://lawandlabour.com/holiday-pay-for-part-year-workers-need-not-be-pro-rated/feed/ 0 http://lawandlabour.com/morrisons-liability-for-data-breach-confirmed/ http://lawandlabour.com/morrisons-liability-for-data-breach-confirmed/#comments Sun, 04 Nov 2018 18:44:41 +0000 http://lawandlabour.com/?p=2644 One of the leading cases on data breach in the workplace is once more in the spotlight. We previously reported about Morrisons Supermarket being the unwitting target of a malicious leak of employee data by a disgruntled auditor (read our report here). The data breach affected 100,000 Morrisons’ employees. More than 5,500 of them brought a group action against the supermarket for (1) breach of the Data Protection Act 1998, (2) breach of confidence and (3) misuse of personal data. In December 2017 the High Court decided that Morrisons was vicariously liable for the data breach. Morrisons appealed that decision, and the appeal recently made it to the Court of Appeal.

The first issue considered by the Court of Appeal was whether data protection legislation prevents a claimant from using that law to bring claims of vicarious liability, breach of confidence and misuse of personal data. The Court of Appeal decided that the legislation did not contain any such restriction. There was therefore no barrier to Morrisons’ employees bringing such claims.

The Court of Appeal then turned to the question of whether Morrisons could be vicariously liable for Skelton’s acts. The test for vicarious liability requires consideration of whether the act in question is sufficiently closely connected with the employee’s employment so that it would be only fair and just to hold the employer liable for the employee’s actions.

A key issue was whether the fact that Skelton unlawfully uploaded the employee data while at his home (and therefore away from the workplace) meant that Morrisons should not be held vicariously liable for the data breach. The Court of Appeal decided that the first improper action committed by Skelton was the downloading of the employee data onto his USB stick, which he did at work. In any event, held the court, it is possible for employers to be vicariously liable for acts that occur outside of the workplace. The acts which Skelton did  at his home were part of an unbroken chain of events for which Morrisons remained vicariously liable.

“The tortious acts of Mr Skelton in sending the claimants’ data to third parties were in our view within the field of activities assigned to him by Morrisons.” Court of Appeal

The unusual consideration for the Court of Appeal in this case was that Skelton’s acts had been aimed at harming Morrisons. The question was therefore whether Morrisons could be vicariously liable for an act that had been specifically designed to harm the company? The answer, the Court of Appeal decided, was yes. Motive was irrelevant even where the motive was to cause financial or reputational damage to the employer.

Morrisons’ appeal was therefore unsuccessful.

From a public policy perspective, the Court of Appeal noted that organisations can insure against the risk of losses arising due to data breaches by dishonest or malicious employees. The upshot of this case may therefore be increased insurance premiums for employers.

CASE WM Morrison Supermarkets plc v various claimants, Court of Appeal (Civil Division), 22 October 2018

Afterwards a number of guests retired to the nearby Hilton Hotel where they had rooms for the night. Some of that group continued drinking into the early hours of the morning when a dispute arose between the company’s managing director, John Major, and a sales manager, Clive Bellman. In an unprovoked attack Mr Major struck Mr Bellman twice and with such force that his subordinate fell to the floor, where he hit his head and fell unconscious. Mr Bellman suffered serious brain damage as a result.

Mr Major was arrested for assault, but the criminal case did not proceed after Mr Bellman refused to press charges. At the time Mr Bellman said he could not believe it had been Mr Major’s intention to harm a childhood friend.

The question for the High Court to decide was whether Northampton Recruitment, as the employer of Mr Major, should be vicariously liable for his assault on Mr Bellman. The High Court applied the ‘close connection’ test by which the company would be liable for Mr Major’s actions if his misconduct was found to be so closely connected with the work he was employed to do that it could be said that he had been acting in the ordinary course of his employment.

The High Court acknowledged that as Mr Major was the managing director of Northampton Recruitment he had a wide range of duties, including discretion as to expenditure. However, despite the liberty enjoyed by Mr Major in that role, the High Court decided he could not be regarded as being always on duty even when in the presence of other company staff or discussing work matters.

The High Court accordingly decided that there was insufficient connection between the position in which Mr Major was employed and the assault to make it right for the Northampton Recruitment to be held liable. Our report on this judgment can be found here.

Mr Bellman appealed the decision.

The Court of Appeal effectively reversed the High Court’s decision. It found that there was a sufficiently close connection between Mr Major’s job as managing director and the assault to make it fair that Northampton Recruitment should be liable for his actions.

Key to the court’s decision was the very wide remit given to Mr Major in his role as the company’s managing director. It noted that the company was small, Mr Major had responsibility for all management decisions and he would have seen the maintenance of managerial authority as a central part of his role. The Court of Appeal viewed the afterparty discussion that preceded the fight as a means of Mr Major asserting his authority. The assault was a similar exercise of authority, albeit that by doing so Mr Major misused the position entrusted to him.

“He chose to wear his metaphorical managing director’s hat and to [...]]]> http://lawandlabour.com/recruitment-company-liable-for-managers-fight-at-christmas-afterparty/feed/ 0 http://lawandlabour.com/complaints-lacked-sufficient-facts-to-be-whistleblowing-disclosures/ http://lawandlabour.com/complaints-lacked-sufficient-facts-to-be-whistleblowing-disclosures/#comments Wed, 04 Jul 2018 13:52:29 +0000 http://lawandlabour.com/?p=2593 A recent case from the Court of Appeal is a cautionary tale for any employees thinking of trying to retrospectively dress up complaints as whistleblowing disclosures. The decision shows that a statement is likely to fail to be considered a disclosure that qualifies for protection under the whistleblowing legislation unless it contains sufficient facts and identifies relevant failings.

The claimant in the case, Ms Kilraine, worked at the London Borough of Wandsworth as an advisor teacher. Between 2005 and 2010 she made a number of complaints. She subsequently alleged that her statements were disclosures that qualified for protection under the whistleblowing provisions of the Employment Rights Act 1996. The employment tribunal disagreed and struck out three of Ms Kilraine’s four allegations of protected disclosures.

By the time the matter came before the Court of Appeal, the focus was on two disclosures made in 2009 and 2010. Wandsworth disputed that either statement disclosed any information. It said she had merely made allegations.

The Court of Appeal found that the concept of “information” envisaged by the whistleblowing legislation is capable of including “allegations”, and that there should not be a strict dichotomy between the two terms. The Court noted that despite this finding not every statement involving an allegation would constitute information. The statement needed to have sufficient factual content and specificity to be capable of meeting the legislative test of a qualifying disclosure.

The legal test for a qualifying disclosure requires the statement to be a disclosure of information that in the reasonable belief of the person making the disclosure tends to show one or more of the following:

CASE Karen Kilraine v London Borough of Wandsworth, Court of Appeal, 21 June 2018

Photograph: “Person using Macbook Pro on brown wooden desk” by rawpixel.com from Pexels used under Creative Commons Zero licence

The Court of Appeal looked at characteristics of the relationship between PP and Mr Smith to determine whether he had worked as an independent contractor. The issue of personal service – whether a person is required to carry out work personally or whether they can delegate tasks to another person – was a key issue at the appeal as a requirement for personal service tends to indicate an employment relationship. The Court of Appeal found that Mr Smith was personally required to carry out the plumbing work himself and neither his agreement with PP nor their manual permitted him to get a substitute to perform tasks on his behalf. The Court of Appeal also found that PP exercised a degree of control over Mr Smith that was inconsistent with them being a customer or client of a business run by him.

“The essential point was…that the evidence showed that Mr Smith was obliged to work (or be available for work), subject to the various elements of flexibility that [the Employment Tribunal judge] identified, essentially on a full-time basis and that he could not be properly said to be working on a casual basis.” The Court of Appeal

The Court of Appeal considered Mr Smith’s hours of work and found that he was obliged to work 40 hours a week, even if PP did not enforce that rule. In practice, the rental charges incurred by Mr Smith in using PP’s van and mobile phone meant that he had to work for at least 40 hours a week in order to earn sufficient money to provide him with a decent income.

The appeal was therefore dismissed.

The case is another in the chain of decisions regarding the employment status of those working in the “gig economy”, such as the recent Uber case. It shows that the courts remain keen to look beyond the smokescreen of the contractual arrangement between businesses and those who work for them in order to determine the true nature of the working relationship in practice.

CASE Pimlico Plumbers Ltd and ors v Gary Smith, Court of Appeal, 10 February 2017

On 13 June 2018, the Supreme Court upheld the finding that plumbers working for Pimlico Plumbers are workers rather than independent contractors. For details of the judgment, read our report here.

Photograph: “Infrastructural (18/365)” by Flikr user Rex Babiera used under Creative Commons Attribution 2.0 license