Employment Law Monthly Update – February 2019

Feb 5, 2019

We are pleased to provide you with the Herrington Carmichael LLP employment law update for February 2019.

This is a key note summary of some of the main developments in employment law in the last month.

  1. Whistleblowing
    The case of Ibrahim v HCA International considered whether a complaint of defamation could give rise to a viable whistleblowing claim.  Mr Ibrahim worked as an interpreter for HCA International, and had been concerned after hearing rumours from his colleagues and patients that he had breached confidentiality obligations.  Mr Ibrahim raised a grievance to try and restore his reputation. However, his grievance was not upheld and he was dismissed.  He later alleged that he had suffered a detriment after making a protected disclosure.

The Employment Tribunal dismissed his claims.  Mr Ibrahim’s complaint in relation to the rumours did not amount to a protected disclosure.  Mr Ibrahim subsequently appealed to the Employment Appeals Tribunal (“EAT”), which held that Mr Ibrahim’s complaint amounted to an allegation of defamation (a breach of a legal obligation), which was capable of amounting to a qualifying disclosure.  However, Mr Ibrahim’s complaint did not satisfy the necessary requirement of being in the public interest.

This is a conceptual legal discussion.  However, it is an important reminder for employers that where an employee makes a complaint, it must be in the public interest, for the disclosure to be protected.  This may seem tough on Mr Ibrahim but the law is precise in this area. 

  1. Substitution
    It is well founded principle that a right for an individual to appoint a substitute is not consistent with the person being employed (i.e. it gives rise to arguable self-employment). However, in the recent case of Chatfeild-Roberts v Phillips & Universal Aunts Limited, the EAT found that situations do exist whereby an individual can be an employee, even though his/her role is substituted on a regular basis.

Ms Phillips was a live-in carer for Mr Chatfeild-Roberts’ uncle for three years. When the arrangement terminated, she brought claims against the Respondents, alleging that she was an employee. Ms Phillips had, on a number of occasions, sent a substitute to carry out her work for Mr Chatfeild-Roberts’ uncle. However, the substitute was only sent when Ms Phillips was on annual leave, jury service or on her scheduled one day off per week. The EAT followed the well-established Pimlico Plumbers principle, and found that Ms Phillips was an employee. This was on the basis that the right of substitution was only exercised when she was unable to carry out the work. The EAT held that this was consistent with the requirement for personal service.

This case shows the importance of a proper analysis of employment status in cases involving workers and the self-employed.  The requisite element of personal service here gave rise to the employment relationship.  Although unusual, substitution here did not prevent employment status arising. 

  1. Executive pay
    With effect from 1 January 2019, regulations have come into force which require listed companies, with over 250 employees in the UK, to annually disclose the difference in pay between their Chief Executive Officer (CEO) and their average UK employee.  These companies will be required to explain, annually, the ratio of their CEO’s pay to the lower, median and upper quartile pay of their UK employees. The first of these reports must be published by listed companies in 2020, covering pay earned over the course of 2019.

Additionally, the regulations also require that listed companies report on how their directors account for employee and other stakeholder interests.

The regulations form part of the government’s strategic move to upgrade corporate governance arrangements in larger companies. It also ensures the UK business environment becomes more transparent to the wider public.

  1. Public Judgments
    The recent case of Ameyaw v PWC Ltd considered the power of an Employment Tribunal to remove a judgment from the online register.  PWC Ltd had previously sought to strike out Miss Ameyaw’s claims, on the basis of her ‘scandalous and vexatious’ behaviour during a Preliminary Hearing.  However, this was refused by an Employment Tribunal, and the judgment was published online.  Miss Ameyaw applied to have the judgment removed from the online register, as it documented her ‘scandalous and vexatious’ behaviour.  Her argument was on the basis that the judgment being posted online had breached her right to respect for private and family life, as provided by Article 8 of the European Convention of Human Rights.

Miss Ameyaw’s applications were rejected by the Employment Tribunal and, later, the EAT. The EAT held that, whilst a Employment Tribunal does have power to grant anonymity in some situations, there was no basis to overrule the principle of open justice in Miss Ameyaw’s case. It was also found that, as the hearing in question was a public hearing, Article 8 of the European Convention of Human Rights did not apply.

Employers, and employees, must both remember that judgments are often published online, and are accessible to the wider public. Therefore, the risk of reputational damage caused by a judgment is possible. Therefore, parties should always be mindful of their behaviour. 

For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com.