In Brief: Important Updates from January 2020Posted in : Supplementary Articles NI on 3 February 2020
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 judgement online.
The decisions highlighted in this article cover a wide range of employment issues, including Philosophical Belief, Covert Monitoring and Employment Status.
In Gray v Mulberry Company (Design) Ltd  the Claimant’s reluctance to sign a confidentiality agreement because she worried that the confidentiality agreement would extend to her artistic work as a filmmaker or writer did not amount to a philosophical belief. Similarly in Conisbee v Crossley Farms Ltd & Ors  the Tribunal decided that vegetarianism was not a protected characteristic as it does not relate to human life and behaviour but is better viewed as a lifestyle choice. Quite interestingly, Judge Postle made a distinction between vegetarianism and veganism and in the case of Casamitjana v League Against Cruel Sports he ruled that ethical veganism constitutes a philosophical belief. He found that ethical veganism satisfies several legal tests as set down in the Grainger case, including that it is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others.
Covert monitoring and recording is always a potentially emotive and challenging issue and there have been several cases over the years that test the data protection and fairness of such activities. In López Ribalda v Spain  the ECHR found that the protection of significant public or private interests could justify the lack of prior information (of covert monitoring by a supermarket) and the interference of the applicants' privacy was proportionate. In Phoenix House Ltd v Stockman  the EAT cautioned employers that the dismissal of an employee for covertly recording a meeting would not always amount to misconduct. The guidance is that parties should be upfront about any recordings.
Cases dealing with employment status continue to dominate the courts and in Stuart Delivery Ltd v Augustine  a courier was found to have established ‘worker’ status as the respondent’s argument that he was self-employed failed because there was no actual right of substitution. The respondent’s system of releasing jobs to other couriers was contingent upon another courier accepting the work and if none took on the job, the original courier would remain liable for the delivery. An interesting twist in the case of Augustine v Econnect Cars Ltd  was the fact that the EAT found that the Claimant (as a worker but not an employee) could potentially avail of rights under the protection under the Part-Time Worker Regulations. This case was remitted to the Employment Tribunal and we await the outcome there. Conversely in Caren v Irish Hockey Company Ltd by Guarantee  a case largely concerned with territorial jurisdiction, the Industrial Tribunal did note that the Claimant was an independent contractor and not an employee. This was based upon numerous factors but especially the fact that the claimant billed the respondent through a limited company that he established in the Republic of Ireland.
You can find these cases and many more on the Case Law section on the Employment Law Hub.
More Supplementary Articles
- NI Employment Law: What we learned last quarter (Q2 2020)
- Presidential Guidance - The Industrial Tribunals and The Fair Employment Tribunal
- Furlough Payments and Notice – An Update
- ICO Guidance On Data Protection Compliance During COVID-19 Recovery Period
- Furlough Fraud; Returning to Work; Holiday Pay in Relation to Furlough
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.