in-depth

Technical update - October 2018

Andrew Macmillan

Extending personal liability in whistleblowing claims

Issue

A worker has the right not to be subjected to any detriment on the ground that they have made a protected disclosure or ‘blown the whistle’. Where such a claim is made it is not just the employer that is at risk, as individual employees who carry out the acts may also be held personally liable. The case of International Petroleum Ltd and others v Osipov and others considered whether the subsequent dismissal of the claimant could limit the compensation due from the individuals.

Facts

Mr Osipov had made disclosures in relation to the oil and gas exploration activities being carried out by the employer. He considered that the company’s actions were in breach of local laws. As a result of this complaint two directors Mr Timis and Mr Sage removed Mr Osipov from the project and later dismissed him. Mr Osipov claimed that he had been subjected to detriments by the directors and unfairly dismissed by the company for having made protected disclosures.

Decision

The directors argued that they should not be held personally liable for any of Mr Osipov’s post-dismissal losses, as those were due to the dismissal which could only be the responsibility of the employer. However the Court of Appeal held that there was nothing to prevent the individuals from being liable for post-employment losses where the dismissal was the act of detriment. The company and the individual directors were jointly and severally liable for the total compensation awarded.

Action

This decision is likely to increase the number of claims against individuals for two reasons. First, a detriment claim is easier to establish as it only needs to be shown that the disclosure materially influenced the treatment, whereas in a dismissal claim it has to be shown the disclosure was the sole or principal reason. Secondly, it opens up the possibility of receiving additional compensation for injury to feelings that would ordinarily not be available in a dismissal claim. Consideration should be given to management training to raise awareness of this potential risk of personal liability.

 

 

Swedish derogation hours required

Issue

Under the Agency Worker Regulations 2010, there is a right to receive the same basic working terms and conditions as comparable employees directly engaged by the hirer, once the assignment has lasted 12 weeks. The ‘Swedish Derogation’ provides an important exception in relation to the right to the same pay but only where the contract meets specific requirements, as was highlighted recently in the case of Twenty-Four Seven Recruitment Services Ltd and others v Afonso and others.

Facts

Mr Afonso and the other claimants had challenged the employer’s reliance on their Swedish Derogation contracts. This was not because they didn’t provide for pay between assignments but because they alleged that the terms failed to specify their hourly rate of pay or their normal hours of work. In particular they submitted that a reference to National Minimum Wage rates and the number of days per week that they would normally be required was insufficient.

Decision

It was held that the rate of pay was sufficiently identified by reference to the current national minimum rates that were published and updated each year. There was no requirement that the contracts had to stipulate a specific figure. However the challenge in relation to the hours of work succeeded. The contract had stated that they would normally be required to work 5 out of 7 days per week. That did not identify the normal hours of work and as a result the right to the same pay was not excluded.

Action

Use of the Swedish Derogation exception is widespread across the recruitment sector. The right to receive pay between assignments has always been regarded as the key provision that will enable the same pay exception to apply. However as this decision demonstrates, it will also be necessary to ensure that the contracts meet other requirements in order that the exception can be relied upon. It may be appropriate to review the current wording being used to ensure that these are being met.

 

 

Vicarious liability extends to the after party

Issue

Employers will be vicariously liable for the acts of employees carried out in the course of their employment. The question of whether the employee was acting in the course of their employment has been interpreted widely in past decisions. The issue in Bellman v Northampton Recruitment Ltd was whether that liability could even extend to acts done during a drinking session that followed a work Christmas party.

Facts

After the Christmas party for office staff and their partners, the MD Mr Major suggested that a group of employees move to a nearby hotel for further drinks. Shortly before 3am, during a work-related argument, Mr Major punched the sales manager, Mr Bellman, with such force that he fell back and fractured his skull, which caused severe brain damage. He brought a claim in the High Court for damages alleging that the employer was vicariously liable for Mr Major’s assault.

Decision

The Court of Appeal overturned the High Court and found that the employer was liable on the facts of the case. The assault had occurred immediately after a discussion about work, during which Mr Major became angry that his management was being questioned. There had been nothing personal behind it. Whilst Mr Major had not been on duty when he first arrived at the hotel did not mean he was not acting as managing director when his managerial decisions were challenged.

Action

The High Court had emphasised the importance of timing when considering vicariously liability particularly where there was no expectation or obligation on any employee to participate in an event. However the Court of Appeal focused instead on what had led to, and motivated, the assault and the context in which the drinks party had occurred. It was highlighted that “misuse of authority can occur out of hours or when the parties are off-duty”; an issue that managers will need to remember.

 

 

Limits on reasonable adjustments

Issue

There is a duty to make reasonable adjustments where a disabled employee is at a disadvantage because of the application of a provision, criterion or practice (PCP) in the workplace. The steps the employer will be expected to take will depend on a number of factors. The recent case of Brangwyn v South Warwickshire NHS Foundation Trust concerned the question of whether the employer’s actions should be judged against the employee’s job description or what was asked of the employee in practice.

Facts

Mr Brangwyn, an Occupational Therapy Technician, assisted in the recovery of hospital patients. However his phobia about blood, injections, and needles meant that he would fall ill whenever he spent time in a ward. When medical handover meetings were switched to wards he went on long-term sick leave. In an attempt to get him back to work changes were made so that he did not have to attend the ward but his request for an express assurance in his job description that no ward visit would ever be required of him was refused.

Decision

It was held that his claims of disability discrimination should be dismissed. It was not a reasonable adjustment to remove the requirement that he ever attend a ward. Changes had been made that went as far as was reasonable in balancing the provision of therapeutic services to patients with the needs of Mr Brangwyn. It was appropriate to take into account what he was being asked to do rather than just looking at the job description and treating that as a PCP which placed him at a disadvantage.

Action

The fact that Mr Brangwyn had worked with hospital patients for a number of years without any problem and without anybody knowing that he even had a phobia might indicate that a certain amount of hospital interaction would not place him at a disadvantage. In practical terms the important lesson from this decision is to consider what practical steps can be taken to remove a disadvantage and to balance that against the needs of the business.

 

 

Consequences of disability – wider test for liability

Issue

The protection against disability discrimination includes the right not to be treated unfavourably because of something arising in consequence of a disability. The employer will be liable for such treatment if it was known the employee was disabled and the treatment could not be shown to be justified. In the recent case of Sheikholeslami v University of Edinburgh the meaning of ‘in consequence of’ was considered and found to be a much looser test than the usual one of causation.

Facts

Ms Sheikholeslami was a Professor in the Engineering department. She raised a grievance complaining of sex discrimination because of attitudes in the department and requested a transfer. She was at the same time signed off due to stress. An investigation found there were cultural problems in the department but she was asked to return to it rather than a different department. She refused to do so and when her visa expired she was dismissed.

Decision

The refusal to return to her existing role appeared to be due to her having been badly treated in the department. However it could have also been in part due to her disability which caused her to experience anxiety, stress and an inability to return to the place where she perceived the mistreatment and hostility to be located. The term in ‘consequence of’ might involve more than one link in the chain of consequences.

Action

Employers need to take into account how it might be easier for a claimant to show that their actions or conduct were as a consequence of their disability than had been previously realised. There is no direct causation test as might be required with other forms of discrimination. In addition, it will not matter for the purpose of the claim and establishing liability that the employer had not realised the actions or conduct were connected to the employee’s disability.

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Andrew Macmillan

Andrew Macmillan

Partner

Andrew is a specialist employment lawyer, with a particular focus on contentious work such as reorganisations, redundancies, employment aspects of insolvency, executive severance, employment relations issues and employment tribunal litigation.