Latest Employment News from Thursfields Solicitors

Supermarket chain liable for the criminal actions of an aggrieved rogue employee

In an alarming case, the High Court has ruled that employers can be liable for their employees’ unlawful disclosure of personal data – even when the employer itself abided by the Data Protection Act 1998 (‘DPA’).

A disgruntled senior auditor (‘S’) employed by WM Morrison Supermarkets plc intentionally disclosed personal information of around 100,000 co-workers on the internet to cause damage to the supermarket chain. S was convicted for offences under the DPA and Computer Misuse Act 1990.

A class action of over 5,500 employees brought a subsequent claim for compensation against Morrisons, claiming that as an employer, it was primarily liable for its own act/omissions and vicariously liable for the actions of the employee, S. The High Court held that despite the supermarket not breaching the DPA (save in one small respect), it was vicariously liable for the employee’s misuse.

Lisa Kemp, Employment Solicitor at Thursfields’ Worcester office stated that the judgment was alarming for employers who can be liable despite being essentially innocent and unaware of a rogue employee misusing personal data. The case serves as a useful reminder of the importance of ensuring appropriate safeguards are in place to protect confidential information and to guard against personal data being unlawfully disclosed or misused.  This is particularly significant in light of the introduction of the GDPR, just around the corner, in May 2018.

Case details: Judgment Various Claimants v Wm Morrisons Supermarked PLC [2017] EWHC3113 (QB) https://www.judiciary.gov.uk/wp-content/uploads/2017/12/morrisons_approved_judgment.pdf

 For advice and assistance on employment and HR issues, please contact Lisa Kemp on lkemp@thursfields.co.uk

Fawcett Report – Sex Discrimination Review

Amidst the rise of the #MeToo campaign, the long awaited report in to sex discrimination law in the UK has now been published.

The “Me Too” phrase long used by social activist Tarana Burke built staggering momentum in 2017 when it went viral across social media to demonstrate the prevalence of sexual assault and harassment in the workplace.

Meanwhile in the UK, fears surrounding the impact Brexit would have on UK sex discrimination laws led the Fawcett Society to launch a review of UK sex discrimination laws. The report, now published makes several recommendations about the approach the British government should take on discrimination issues post-Brexit and makes for some interesting reading.

Amongst other things, the Review has called for:

• The current gender pay gap reporting obligations to be extended to reporting based on the age, ethnicity, sexuality, part-time, and disability of workers.
• Powers conferred by the European Union (Withdrawal) Bill 2017-2019 to be restricted. The effect being that substantive changes to UK employment law, equality and other human rights legislation would be prevented including the contentious opt out provision for small UK businesses.
• Additional protection afforded to expectant mothers and those returning from maternity leave (which currently ends from the date the mother returns to work).
• Statutory maternity, paternity and shared parental pay to be made “day-one” rights for all UK workers.

Jade Linton, Employment Solicitor at Thursfields’ Solihull office noted that whilst there was no indication of when the government would respond to the Fawcett recommendations, the report made clear there were still many improvements to be made in support of true gender equality.

For advice and assistance on equal opportunities, please contact Jade Linton on jlinton@thursfields.co.uk

Sources: Fawcett Society: Sex discrimination law review (January 2018).

What is perceived disability discrimination?

The Employment Appeal Tribunal (EAT) has upheld a claim for discrimination based on a perceived disability.

Mrs Coffey, a police officer, applied for a transfer to another constabulary but her application was rejected. Her hearing loss was assessed as being just outside of agreed hearing range under the police’s national recruitment standards, this despite Coffey undertaking an operational policing role with her current constabulary.

Coffey won her case for disability discrimination at an Employment Tribunal which the Constabulary appealed, arguing that Coffey was not in fact disabled in law. The EAT agreed with the Tribunal’s decision that Coffey was entitled to protection under the Equality Act 2010 because her employer had ‘perceived’ that she had a disability. The EAT stated that Coffey had been able to perform an active policing role for her current constabulary and had been accepted at interview but was ultimately unsuccessful in securing the new role, following a fitness and pre-employment health assessment, because it was thought she may become a liability to the force in the future.

James Monk, Employment Solicitor at Thursfields’ Black Country office noted that employers should not rush to judgment or make assumptions about a perceived disability. The case reminds employers of the need to be careful as to how they treat staff members with health conditions, or perceived health conditions. In this case, a recommendation to allow Coffey to undertake an “at work” test to better assess her effectiveness at wok in an operational environment was rejected

For advice and assistance on employment and HR issues, please contact James Monk on jmonk@thursfields.co.uk

Case details: The Chief Constable of Norfolk v Coffey [2017] UKEAT 0260-16-1912

These articles have been prepared for guidance and information purposes only and should not be substituted for legal advice.

Thursfields’ expert employment solicitors are available at any of our offices and surrounding areas – Worcester, Solihull, Kidderminster, Halesowen, and Birmingham