Safeguarding Disclosures

Thanks to Jennifer Danvers of Cloisters for preparing this case summary.

Does the former employer of a teacher owe that teacher a duty of care when making safeguarding disclosures?

No, held Sir Colin Mackay in Melik Camurat v Thurrock Borough Council.

A compromise agreement between Mr Mamurat and the local authority included an agreed reference that was positive save for disclosing a final written warning relating to confiscation of a pupil’s mobile phone.

Thurrock subsequently provided a chronology referring to a number of allegations made against Mr Camurat during his employment to the police. The chronology was “effectively reproduced” in an Enhanced Criminal Record Check ('ECRC'), causing Mr Camurat to lose a new job. It took Mr Camurat nearly 5 years to get the ECRC cleared.

Mr Camurat’s claims of negligence, breach of contract, misrepresentation and malicious falsehood were dismissed. Mackay J held that to impose a duty of care “would discourage those who would in good faith provide assistance to the police on safeguarding issues.” Further, there was no express or implied term that any disclosure to safeguarding bodies would be in the spirit of the agreed reference. Such a term would have been “a neglect of the defendant’s duty and therefore void”.

Mr Camurat was given permission to appeal.

Freedom of Information - Names of Employment Tribunal Respondents not available

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

Is the list of Respondents to employment tribunal claims held by HM Courts & Tribunals Service exempt from disclosure under a Freedom of Information Act request?

Yes, it is exempt and cannot be disclosed, held the Upper Tribunal, in Peninsula Business Services v Information Commissioner.

Until 2004, a register of Respondents in employment tribunal claims was publicly available. In 2004, the register was made confidential. However, HMCTS continued to maintain a list containing Respondents' details, which it extracted from ET3 forms and stored on its computer systems.

Peninsula sought to obtain the list by making a Freedom of Information Act request.  The case turned on whether or not the list was information exempt from disclosure under Section 32 (1) (a) and (c) (ii) of the Act.

"32 Court records, etc.

(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in

(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, ...

(c) any document created by... (ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter."

Whilst the information in Response Forms is exempt under 32 (1) (a), after extraction, that protection remained under 32 (1) (c) as the only source of the information was information that the Respondents were required to provide employment tribunals by the Rules of Procedure.  Accordingly Peninsula's attempt to obtain the data was unsuccessful.

Traditional Approach to Restrictive Covenants Reaffirmed

Can a court re-write restrictive covenants to bring them in line with common sense? No, the Court of Appeal holds, in Prophet plc v Huggett. Prophet was a software company, selling software to the fresh produce industry. A restrictive covenant prevented Mr Hugget from selling Prophet's software after he left. He joined a competitor, which sold competing software but which was not, technically, Prophet software (as only Prophet sold Prophet software). Read literally, the restrictive covenant provided no protection to Prophet as nobody else sold their software. The High Court held that the clause should be rewritten to give effect to the intention of the parties, to prevent Mr Huggett selling software which was similar to Prophet software (see summary). The Court of Appeal disagreed. Rimer LJ pointed out that a purposive approach could legitimately be taken where a restrictive covenants was ambiguous. But this one was not ambiguous - it was just badly drafted. Prophet had drafted the covenant, and was stuck with it. If you want to learn more about restrictive covenant litigation, look at session 3 of the Employment Law MasterClass (only London, Manchester and Edinburgh, in October 2014, still available for booking).

Injunctions and Disciplinary Proceedings

Thanks to David Campion of Garden Court North Chambers, for preparing this case summary Did an NHS Trust's disciplinary policy permit it to impose a more severe sanction upon an employee's appeal? No, held the Court of Appeal in McMillan v Airedale NHS Foundation Trust. The Claimant, a Consultant employed by the Trust, received a final written warning against which she appealed under the Trust's contractual disciplinary policy, which did not provide an express right to increase any sanction upon appeal. Partway through the appeal process, before the issue of sanction had been decided, the Claimant attempted to withdraw her appeal and commenced High Court proceedings for an injunction to prevent the Trust from reconvening the appeal hearing to consider sanction, which was granted by the High Court. The Court of Appeal upheld the decision to grant the injunction. The Court of Appeal considered the non-statutory ACAS Guide on Discipline and Grievances relevant to construing the disciplinary policy and concluded that the policy prevented the Trust from increasing a sanction on appeal, because the right to appeal is provided for an employee's benefit or protection. Floyd LJ considered, at paragraph 56, that it would be 'a surprising result' if a sanction could be increased upon appeal; if a warning was increased to dismissal, the employee would have no right under the policy to appeal against the dismissal. Underhill LJ, at paragraph 71, stated that if an employer wished to have the right under its disciplinary procedures to increase the sanction on appeal it must be expressly provided for.

Is obesity the new disability?

Does obesity qualify, without more, as a disability?  If yes, then the duty to make reasonable adjustments might include employers having to provide bigger chairs and desks, car parking spaces near the front door, and duties involving less mobility. The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund.  The first part of the opinion held that obesity was not a protected characteristic per se under the Equal Treatment Framework Directive.  Pretty obvious stuff. The main part of the opinion considered whether obesity, without more, fell within the definition of a disability.  The Advocate General pointed out the EU definition of disability covers the situation when a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing." He went on to say that in "cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."  Note: 'can', not 'must' be a disability. Bottom line: if the individual has a Body Mass Index of 40 or more, so is classified as 'morbidly obese', they might be disabled if the obesity has a real impact on their ability to participate in work.  If not, they won't. Frankly, Langstaff P said the same thing, but better, last year in Walker v Sita Information.   The Court of Justice of the European Union normally (but not always) follows the opinion of the Advocate-General.  Expect the judgment in 4-6 months.

Bundles in the Employment Appeal Tribunal

The President of the Employment Appeal Tribunal, Langstaff P, has issued a clear warning to litigants in the EAT who fail to agree bundles.

In summary, the parties should not turn up with two separate bundles if they cannot agree the contents. Where one party wants to add extra documents which the other side considers irrelevant, they should be included anyway (subject to a maximum of 50 pages or seeking permission from the Registrar to exceed 50 pages - see para 8.3 of the Practice Direction).

Whilst potentially undesirable, it is more desirable than the inconvenience of having two separate bundles with different page numbering. If it turns out that the documents were irrelevant or unneeded, then it is open to the other party to make a costs application.

For the complete guidance, see Smith-Tigger v Abbey Protection Group at paragraph 47.

Employment Tribunal Fees

Has HM Courts & Tribunal Service made its hoped-for £10m from tribunal fees?

According to the HMCTS annual report (p85), fee income generated just under £4.5m in the 8 months between 29th July 2013 and 30th March 2014, equivalent to (about) £6.7m projected forward over a full year. So tribunal fees are generating about two-thirds the fee income of what HMCTS was hoping for - which is a lot more than many people (including me) had thought would be the case, given the (approx) two-thirds drop in the number of tribunal claims.

If you'd like to read more about the HMCTS fee income figures, have a look at this excellent blogpost by Richard Dunstan.

Interim Relief Payments

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary Are payments under an interim relief order taxable in full as earnings under s62 ITEPA , or as payments in connection with termination under s401? The latter, held the First Tier Tribunal (Tax) in Turullols v HMRC. Ms Turullols complained of automatically unfair dismissal for whistle-blowing, and got interim relief pending the hearing of her claim. At the hearing, the employment tribunal found that she was unfairly dismissed, though not because of the whistle-blowing. She settled her claim for compensation, and applied to HMRC for repayment of the tax that had been paid on the salary payments made under the interim relief order. She said they were payments in connection with the termination of her employment and therefore should have been tax-free up to 30,000. HMRC disagreed. On Turullols' appeal, the employment tribunal agreed with Ms Turullols: the payments were only emoluments of her employment if they arose from her employment. They didn't: her employment had been validly and effectively terminated by her dismissal, and it stayed terminated; the effect of the order for interim relief was not to revive her employment, but to continue her entitlement to certain of the benefits she would have received had she remained employed.

Employment Tribunal Fee Remission

Her Majesty's Courts and Tribunals Service has just published the new Form EX160A  (the form and guidance notes for applying for fee remission), as trailed here.

The form is only two pages (but it's in very small print, and the guidance notes are another 29 pages!), and is a much simplified version of the previous fee remission application form.