In Brief: Case Law Special (November 2018)Posted in : Supplementary Articles NI on 3 December 2018
This month’s 'In Brief' is a common law catch up. It can be hard to keep up-to-date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.
If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgment online.
The decisions highlighted in this article cover a wide range of employment issues, including holiday pay; data protection and GDPR; employment status; vicarious liability; dismissal for gross misconduct and the band of reasonable responses; random drug testing and fair procedures; overtime; and pension benefits.
This is a very interesting NI industrial tribunal claim regarding holiday pay and is of importance to all NI employers. The tribunal rejected the application of Bear Scotland in Northern Ireland and the case resulted in an estimated £30m bill for the respondent based on unlawful deductions dating back 20 years.
As if GDPR, data protection responsibilities and potentially huge fines weren’t frightening enough, this case confirms another layer of danger for employers – the vicarious liability of employers for harm caused by the criminal activities of their employees in relation to data breaches. Will employers now have to obtain insurance for losses caused by dishonest or malicious employees?
“There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees….”
The key issue in this case was whether the drivers undertook to do or perform any work or services for the respondent. The case highlights the willingness of courts and tribunals to look behind labels and contractual provisions to the reality of the working arrangements between the parties. The EAT had to consider whether the written employment contract reflected the true nature of the relationship (ref Autoclenz Ltd v Belcher  ICR 1157).
The Court of Appeal ruled that the employer was vicariously liable for the actions of a senior manager which led to an employee sustaining brain damage stemming from an incident at a Christmas party. The Court pointed out that liability will not arise “merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another...” but stressed what tipped the balance was the fact that the MD exerted his authority at the post-party drinks and that his “position of seniority persisted”.
In this case a grammar school teacher was dismissed for gross misconduct as the tribunal concluded it was more likely than not that he had engaged in unwarranted and unreasonable physical conduct by grabbing and shoving a pupil and pushing two forefingers against his throat. The respondent was not, therefore, in breach of contract by dismissing the claimant without notice.
Are employees entitled to payment for overtime? In this case the claimant’s contract noted that overtime would “only be paid in exceptional circumstances when the work is essential and must be approved in advance and authorised by your line manager”. This is quite a normal contractual clause and indeed many contracts stipulate that extra hours will be not be remunerated at all. However, while there is no requirement to pay overtime, employees may still bring a claim in respect of their entitlement to the national minimum wage if their pay, when averaged out over all of hours worked, falls short of this amount.
In this case a tanker driver who accidentally spilled fuel on a garage forecourt was awarded £23,000 in compensation for unfair dismissal and was reinstated. The tribunal deemed the dismissal outside the band of reasonable responses, stating “the claimant had made a mistake and this was human error…there was no wilfulness about the claimant’s error”.
The UKEAT upheld a decision that a Royal Marines reservist was not unfairly dismissed for taking seven weeks' leave to attend a voluntary training course. The manager insisted she would not have approved the absence had she known the course was voluntary and that “it was not sustainable for the business to have the most experienced person in sales out of the business for that period of time”. The UKEAT had to determine whether the respondent’s decision to dismiss fell within the band of reasonable responses.
In this case a tribunal decided that an employee, who tested positive for cocaine following a random drugs test, was unfairly dismissed as the respondent’s actions were outside the range of reasonable responses and the decision was both procedurally and substantively unfair. The claimant was awarded £37,639.32 for unlawful and wrongful dismissal.
This case concerns inequality between men and women regarding pension benefits and is likely to have a significant impact on both public and private sector schemes across the UK.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.