Gordons Legal Employment Update – 22 December 2017

Whistleblowing in own interest not a protected disclosure

The Employment Appeal Tribunal (EAT) judgment in Parsons v Airplus International Ltd was published last week, confirming that a disclosure made purely in the self-interest of the disclosing party cannot qualify as a protected disclosure in whistleblowing cases.

Ms Parsons, a Legal and Compliance Officer for Airplus, had made a number of disclosures to her employer regarding various compliance issues.  In making these disclosures she made it clear that she was concerned about her own personal liability in the event of any breaches.  Ms Parsons was subsequently dismissed following complaints from colleagues about her attitude, and brought a claim for automatic unfair dismissal on the basis of her having made protected disclosures.

The Employment Tribunal rejected Ms Parsons’ contention that her disclosures were the reason for her dismissal and Ms Parsons appealed to the EAT.  In dismissing the appeal, the EAT held that while a self-interested disclosure may still be in the public interest and thus qualify as ‘protected’ (following Chesterton Global Ltd v Nurmohamed, which we reported on here in July), in the present case Ms Parsons had no belief that her disclosures were in the public interest and consequently her claim for automatic unfair dismissal failed.

Comment:          While it is perhaps unsurprising that a disclosure made solely out of self-interest cannot qualify as a protected disclosure, the EAT judgment also reiterates that there is a distinction between dismissing an employee for making a disclosure and dismissing an employee for conduct related to the disclosure.  For example, Ms Parsons was dismissed largely because of the manner in which she made her disclosures (failing to inform herself of the facts, making unreasonable demands, refusing to listen, etc.), rather than because of the disclosures themselves.

Given that there may be a number of reasons for an employee making a disclosure, employers should err on the side of caution and treat such matters as whistleblowing in the first instance.  Where self-interest is identified as the sole reason for the disclosure, employers should ensure they are able to evidence this.

When is a direct pay offer to employees an ‘unlawful inducement’?

The Employment Appeal Tribunal (EAT) has confirmed in Kostal UK Ltd v Dunkley and Others that an employer’s direct offer of revised terms and conditions to its employees, bypassing the recognised trade union, constitutes an unlawful inducement to forego collective bargaining, even where foregoing collective bargaining may be temporary.

In late 2015 negotiations over pay and conditions broke down between Kostal and the recognised trade union, Unite.  The company made an offer which Unite felt it could not recommend to its members, and in a subsequent ballot, 80% of members rejected the offer.  The company then wrote to all of its employees directly, setting out its pay offer in identical terms to that which the union members had voted to reject.  In January 2016 the company wrote to those who had not accepted the offer and made a further revised offer.  A number of employees then brought claims against the company on the basis that its offers constituted unlawful inducements which aimed to prevent the employees’ terms being determined by collective agreement.

The Employment Tribunal found for the employees, and the company appealed on the basis that collective bargaining was not permanently prevented from taking place, and in fact a collective agreement was eventually reached.  The EAT dismissed the appeal, holding that even where a single term of employment is prevented from being determined by collective bargaining of a recognised trade union, an offer to achieve that result is unlawful.

Comment:          This judgment highlights the fact that employers should be wary of bypassing a recognised trade union and making direct offers to its workers, even where negotiations with the union have apparently broken down.   However, the judgment also notes that in circumstances where collective bargaining has genuinely broken down to the extent that the employer is justified in making offers directly to its workers, there is nothing to prevent employers from doing so.

Video surveillance at work

In the recent case of Antovic and Mirkovic v Montenegro the European Court of Human Rights (ECtHR) considered whether two Mathematics professors at the University of Montenegro were subject to an unlawful invasion of privacy, after video surveillance had been installed in the lecture theatre where they taught.

The professors claimed their right to a private life under the European Convention of Human Rights (ECHR) had been contravened due to the fact that they had no control over, and gave no authority to, the video data being collected.  The data itself was protected by codes known only to the Dean of the School of Mathematics.  The domestic courts held that because the University is a public institution the right to a private life under the ECHR did not apply.  The professors appealed to the ECtHR.

The ECtHR first confirmed that the professors’ right to a private life had been infringed because the notion of a ‘private life’ includes activities taking place in a public context.  The Court then considered whether the infringement could be justified on the basis that it was in pursuance of a legitimate aim.  The University’s rationale for installing video surveillance, that it was to “ensure the safety of property, people and students, and the surveillance of teaching”, was found by the Court to be illegitimate because there was no evidence that safety was in issue and monitoring teaching was not a legitimate ground for surveillance.  As a result, the Court allowed the Professors’ appeal.

Comment:          Although this case does not make surveillance of staff unlawful in itself, it shows that employers must be able to objectively justify their reasons for installing surveillance and show that such installation is a proportionate means of achieving a legitimate aim.  The Information Commissioner’s guidance on surveillance cameras and data protection can be found here.

Worker status for Parcelforce couriers?

In another claim seeking to secure a favourable employment status for those previously treated as self-employed, the GMB union has commenced legal action on behalf of four couriers against Royal Mail Group Limited, alleging a failure to pay the national minimum wage and holiday pay.

The couriers, engaged by Parcelforce (a subsidiary of Royal Mail Group) allege that Royal Mail has enticed its employees to work ostensibly under ‘self-employed’ contracts and regarded them as self-employed as a means to reduce their pay and avoid giving them rights due to employees and workers.  The first hearing before the Employment Tribunal is due to be held on 16 February 2018.

Comment:          This is the latest in an increasingly long line of cases seeking to assert the rights of those allegedly wrongly treated as self-employed.   Once again it highlights the fact that employers should take steps to formalise and clarify the employment status of those who work for them.

If you require advice on the employment status of those who work for you, or on drafting bespoke employment contracts to meet your requirements, please contact the Employment Team.