Employment Law Monthly Update - January 2018


We are pleased to provide you with the Herrington Carmichael LLP employment law update for January 2018.

This is a key note summary of some of the main developments in employment law in the last month.

1. Employer vicariously liable for employee’s disclosure of personal data

In the case of Various Claimants v Wm Morrisons Supermarket PLC, the High Court has found that an employer was vicariously liable for the deliberate and criminal disclosure of personal data by a rogue employee.

Employers are liable for acts committed by employees under the doctrine of vicarious liability where there is a sufficient connection between the employment and the wrongdoing.  This recent ruling suggests that even where an employer has done as much as reasonably possible to prevent the misuse of data, they may still be found vicariously liable for an employee misusing data, even where such misuse is intended to cause damage to the employer.

Morrisons has been given leave to appeal to the Court of Appeal and has indicated that it will do so.  It should also be noted that GDPR will likely extend the impact of this decision, if the ruling is not overturned.  This will have a significant impact on employers who will need to be even more careful about preventing misuses of data.

2. Discrimination based on a perceived disability is unlawful

In Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal upheld the decision of the Employment Tribunal that a police officer suffered direct discrimination because of a perceived disability.

The employer’s reason for refusing the police officer’s transfer to Norfolk Constabulary was the concern that she would end up on restricted duties because her hearing loss was marginally below the medical standard for police recruitment.  This indicated that her employer perceived her to have a progressive condition that could develop to the point of having a substantial impact on her ability to carry out day-to-day activities, which meets the statutory definition of ‘disability’ under the Equality Act 2010.

This case highlights the fact that disability discrimination works in the same way as any other discrimination based on perception of other protected characteristics such as sexual orientation.  The complication here is that there is a specific legal definition of what counts as a ‘disability’, so the perception must be of a health condition which meets this specific legal test.  Aside from this complexity, the case also makes it clear that even where it is incorrect, a perception about a health condition can be direct disability discrimination.

3. Pre-termination negotiations

The Employment Appeal Tribunal has held in the case of Basra v BJSS Ltd that the Employment Tribunal was wrong to exclude evidence of pre-termination negotiations under section 111A of the Employment Rights Act 1996 when determining the effective date of termination for the purpose of an unfair dismissal claim.  The statutory exclusion will only apply to negotiations which take place prior to the termination of employment and so cannot be invoked until the effective date of termination has been decided.

Evidence of pre-termination negotiations can be excluded in cases where the effective date of termination is agreed but the parties are instead disputing the nature of the termination.  An employee who claims constructive dismissal following settlement negotiations should therefore not be able to rely on matters arising during those negotiations, unless the matters involve ‘improper behaviour’.

This case illustrates the importance of careful wording in any correspondence with employees relating to termination of their employment, whether sent on an open or without prejudice basis, particularly if the effective date of termination is in dispute.

For further information or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com

This publication reflects the law at the date of publication and is written as a general guide only - it is not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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