A number of key employment law cases of significance for employers have recently been decided.
Pregnancy discrimination
Camara v East London NHS Foundation Trust
A London Employment Tribunal has ruled in favour of an NHS trust employer in the case of Camara v East London NHS Foundation Trust.
The claimant (Camara) had worked as an administrator for the trust from 24 January to 16 August 2018. After being dismissed, Camara brought complaints of discrimination and harassment on the grounds of pregnancy, race and religion, as well as a claim of unfair dismissal.
The tribunal judge found that the claimant’s manager had made discriminatory and “objectively inappropriate” comments to the claimant because she had been frustrated that she had been considering terminating Camara’s employment due to performance issues, but felt the pregnancy would be a possible barrier.
However, the tribunal ruled Camara had ultimately been fairly dismissed because the reasons for terminating her assignment were budgetary pressures and the team no longer needing a temporary administrator.
The case highlights the benefit of ensuring line managers and supervisors are adequately trained in effectively approaching and handling conversations (not just in relation to pregnancy) with employees.
Shared parental pay (discrimination)
Hextall v Chief Constable of Leicestershire Police
This case was heard jointly with Ali v Capita, as both dealt with the issue of discrimination in relation to shared parental leave.
Both claimants were refused leave to appeal to the Supreme Court following the Court of Appeal’s decision in April 2019 which found that, in scenarios where enhanced shared parental pay was not aligned to match that of enhanced maternity pay, there was no sex discrimination.
The Court of Appeal’s decision therefore stands, meaning employers can continue to enhance maternity pay without the requirement to enhance shared parental pay.
Legal privilege
Civil Aviation Authority v R (on the application of Jet2.com LTD)
The Court of Appeal in The Civil Aviation Authority v R (on the application of Jet2.com Limited) has confirmed the “dominant purpose” test for legal advice privilege (LAP), providing the clearest statement on this issue to date.
The decision means that only those communications created for the dominant purpose of obtaining or giving legal advice will be protected by LAP. The fact that a document is sent to or from (or copied to) a lawyer does not mean that it will necessarily be protected by LAP. The dominant purpose test should be applied to each document in order to determine whether it is protected by LAP. This will require analysis of the purpose of the document and the context in which it was created, sent or received.
Specific guidance was also provided by the Court in respect of assessing privilege for multi-addressee emails (or other communications).
TUPE (variation of terms of employment)
Ferguson and others v Astrea Asset Management LTD
The Employment Appeal Tribunal has held that contract variations that are beneficial to an employee are void if made by reason of a TUPE transfer by the transferor.
This is a change to previous government guidance on the TUPE provisions which took the position that TUPE 2006 regs 4(4),(5) (ie where subject to limited exceptions a purported variation to an employment contract is void if a TUPE transfer is the sole or principal reason for the variation, and is not for an ETO reason entailing changes in the workforce) had no application to cases “when changes are entirely positive from the employee’s perspective”.
It might still be possible for a transferee to agree changes that are beneficial to an employee after a transfer has taken place.
Employment status
Revenue and Customs v Professional Game Match Officials LTD
The Upper Tribunal (UT) considered the employment status of football referees in the ‘National Group’, finding that they are not employees as there was insufficient mutuality of obligation to class them as employed.
The appeal related to referees on PGMOL’s National Group list who mainly officiated at matches in the FA Cup, the Championship and Leagues 1 and 2, typically in their spare time, alongside other full-time employment.
The UT analysed the current status of the law relating to mutuality of obligation and confirmed that the First Tier Tribunal (FTT) had applied the wrong test in determining whether control existed.
It concluded that control requires a contractual right to direct the manner in which the worker performs their obligations and that those directions should be enforceable, i.e. that there is an effective sanction. The FTT had been wrong to find that PGMOL had no effective sanction because its only recourse was either to terminate the contract or not to offer future matches.
The decision highlights the continued ambiguity when determining employment status.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
