Disclosure of Documents Held Overseas

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Does an Employment Judge in Scotland have the power to order a party outside Great Britain to disclose documents?

No, says a division of the EAT in Scotland (the Honourable Lady Smith, sitting alone) in Weatherford UK Ltd v Forbes . The employment tribunal's powers are limited to making orders that apply within Great Britain.

The Claimant obtained orders against the Respondent, a UK subsidiary of Texas-based company, for recovery of documents held overseas by its parent company, the notes of an interview of the Claimant by American attorneys acting for the parent company relating to possible litigation, and an order for additional information. The EAT upheld the Respondent's appeal against the orders.

The EAT held that whilst the power of Employment Judge in Scotland to order recovery of documents under the employment tribunal Rules of Procedure corresponds to those of a sheriff, unlike a Sheriff Court, the scope of that power extends outwith Scotland, to Great Britain, but not overseas, where, like the Sheriff Court, the letter of request procedure would apply, which entails requesting the relevant court in the foreign jurisdiction to order disclosure. The EAT observed that it would be difficult to see how the Respondent could be ordered to disclose documents held by its parent company outside the UK.

The EAT considered the extent to which any legal privilege applied to the documents in question, and, having heard that under US law, privilege would apply to those documents, held that the documents were protected from disclosure by privilege. The EAT also held that the documents were privileged under Scots law as post litem motam "prepared with litigation in mind" and it did not matter that the litigation in mind was not the tribunal proceedings, but other civil and criminal proceedings.

Four Weeks Paid Holiday Under EU Law Has Direct Effect

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does the right to four weeks annual paid leave under Art (7)(1) of the EU Working Time Directive have direct effect?

Yes, says the Court of Justice of the European Union in Dominguez v Centre informatique du Centre Ouest Atlantique, provided the employer is the State or an emanation of the State.

Ms Dominguez's claim against the Centre informatique du Centre Ouest Atlantique (CICOA) (a social security body) arose under the French Civil Code. Under the Code du Travail a worker is only entitled to paid annual leave if she has worked for ten days or a month during the reference period. The CJEU (Grand Chamber) ruled that Art 7(1) must be interpreted as precluding national provisions or practices which make entitlement to paid annual leave subject to such conditions.

The national law must therefore be interpreted, where possible, with a view to ensuring that Art 7 is fully effective, using all the interpretative methods available to it. In the event that this were not possible, it was necessary to consider direct effect.

The provisions of Art 7 were unconditional and sufficiently precise for direct effect against the State or an emanation of the State as employer. It was for the national court to determine the legal status of the employer in question (the CICOA), for that purpose.

Failing these routes to a remedy, the Court reminded us that a party injured as a result of domestic law not conforming with European law may nonetheless rely on the judgement in Francovich and others [1991] ECR 1-5357 in order to obtain, if appropriate, compensation for the loss sustained.

Vicarious Liability in Police Force

[Thanks to David Campion, Pupil Barrister at Garden Court North Chambers, for preparing this case summary]

Could a chief police officer be vicariously liable for alleged discriminatory acts of a police officer against a civilian employee, under the Sex Discrimination Act 1975?

Yes, says the EAT in Metropolitan Police v Weeks. The Claimant was a Senior Crime Intelligence Researcher employed by the Commissioner of Police of the Metropolis. The Claimant was line managed by a City of London Police Detective Sergeant.

The Claimant's line manager, who had a supervisory responsibility towards the Claimant's employment and her levels of pay, rejected the Claimant's application for flexible working (a decision in turn overruled by a senior officer) and subsequently requested the cessation of the Claimant's shift allowance.

The employment tribunal originally determined that the Claimant's line manager made these decisions with the consent and authority of the Commissioner, a decision upheld by the EAT. The EAT concluded, at paragraph 25 of its Judgment, that the Commissioner was aware of the decisions made by the Claimant's line manager and that it was 'no major leap' to conclude such decisions were made either expressly or impliedly on his instructions, with his consent and on his behalf.

Vicarious Liability - Violent Employees

[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary]

In Weddall v Barchester Healthcare; Wallbank v Wallbank Fox Designs Ltd, the Court of Appeal considered the concept of vicarious liability in circumstances of an attack on an employee by another employee, where the attack was a violent response to a lawful instruction of the employer.

The Court explored the key authorities on vicarious liability, including Lister v Helsey Hall [2001], which establish that there must be sufficient connection between what the employee is required to do and unlawful violence towards a third party. The Court identified the importance of the closeness of the connection between the wrongful act and the employment. Each case must be determined by reference to its own facts, although this determination may necessarily involve a 'value judgment'.

Consideration of the closeness of the connection between the wrongful act and the employment produced different results in the two cases:

• In Mr Weddall's case, the employee, who had refused on the phone to work a night shift and then had turned up at his workplace and assaulted the claimant, was acting personally for his own reasons, and the underlying instruction was no more than a pretext for an act of violence unconnected with his work. The employer could not be held vicariously liable.
• In Mr Wallbank's case, the employee was undertaking a task central to his employment, during which Mr Wallbank sought to work with him, in the course of which the employee threw Mr Wallbank onto a table, causing him injury. The Court was persuaded that the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction given to him.

Acas Issues Guidance for the Olympics

Acas has issued guidance on how to deal with issues arising from the Olympic Games in the summer.

It covers issues arising for those who do, and don't, want to time off, and has a useful Q&A section for both employers and employees.