Case Reports

Video surveillance of a public place was capable of violating an employee’s right to privacy so as to amount to a breach of Article 8 of the European Convention on Human Rights which protects the right to respect for private and family life as private life encompasses business and professional activities in the public sphere.

Statute reference: s.3 of the Health and Safety at Work, etc Act 1974 (HSWA).

In determining whether individuals were workers for the purpose of a trade union’s application for compulsory recognition under the Trade Union and Labour Relations (Consolidation) Act 1992 schedule A1, it was irrelevant that the reason the employer had drafted the contract in a particular way was to avoid giving the individuals the status of workers. The proper question was what was actually achieved. Where this amounted to an almost unfettered right of substitution, the contracts concerned were not contracts to perform personally any work or services so that the individuals were not “workers” for the purposes of Trade Union and Labour Relations (Consolidation) Act 1992 s.296.

The burden of showing a prima facie case of discrimination under s.136 of the Equality Act 2010 remains on the claimant (so as to cause the burden of proof to pass to the respondent). This provision made no substantive change to the law when it came into force in October 2010 and the Employment Appeal Tribunal (EAT) was wrong to hold otherwise in Efobi v Royal Mail Group Ltd [2017].

Where findings were made as to procedural defects, any decision as to the fairness of the dismissal needed to take account of the whole context, including findings on the substantive fairness of the dismissal.

The onus of showing the validity of a job evaluation study was on the employer and could not be discharged by merely placing the job evaluation study before the employment tribunal and leaving employees to find deficiencies in it. In the absence of any independent expert evidence to support the methodology used by the employer, this burden was not discharged in relation to an employer’s bespoke, novel and untested method of job evaluation.

It was legitimate for an employment tribunal, having found that the dismissal of a teacher due to long-term sickness was disproportionate and therefore unjustified for the purposes of a finding of discrimination arising from disability contrary to Equality Act 2010 s.15, to decide that it must also be unfair under Employment Rights Act 1996 s.98(4).

In relation to the apportionment of damages for psychiatric injury caused by an employer’s wrongdoing, where there were multiple extrinsic causes of psychiatric injury, a sensible attempt should be made to apportion the harm, unless the harm was indivisible so that a rational basis for apportionment could not be identified.

The statutory exclusion of employees in “police service” (and their trade union representatives) from the provisions in respect of collective consultation as to redundancy were in breach of the right to freedom of assembly and association including the right to join and form trade unions under the European Convention on Human Rights (ECHR) Article 11.

The requirement for claimants to have to pay fees to pursue claims in the employment tribunals was unlawful under both domestic and EU law because it has the effect of preventing access to justice.