Employment Newsletters

1. Data Protection Act

It appears to be a winter of discontent for the Information Commissioner, Richard Thomas, given the tabloid criticism in relation to the interpretation of the Data Protection Act by Humberside Police in the case of Ian Huntley and more recently by British Gas following the tragic deaths of George and Gertrude Bates. It is, therefore, quite heartening to read the decision of the Court of Appeal in Durant -v- Financial Services Authority [2003] EWCA Civ 1746 which shows a very common sense approach (something sadly lacking in Data Protection issues) in relation to the issue of a request for data by a data subject.

Under the Data Protection Act, following a request in writing, accompanied by the statutory fee of £10 information has to be supplied to the data subject within 40 days. This has been used as a weapon by, predominantly, employees and former employees in litigation to obtain information and to cause inconvenience, annoyance and considerable expense to the employer, particularly given that the request may relate to electronic data, some of which may have been deleted, although retrievable.

The Court of Appeal’s decision now considerably limits the data subject’s right to information. The Court of Appeal stated that the intention of the Data Protection Act was to allow an individual to access data and to check that it was being processed in accordance with the Act. It was not intended to provide:-

1. An automatic right to all information about matters in which an individual might be either named or involved, or
2. Assist in obtaining documents for the purpose of litigation.

The Court of Appeal emphasised that only data that had a “sufficient proximity” to the individual needed to be supplied and offered the following guidance:-

1. Information which was biographical in a significant sense, namely that it went beyond the fact that the data subject was merely named or involved in a particular event.
2. The focus of the information was important. The information would be discloseable if the individual was the focus of the information.
3. Did the information compromise the data subject’s personal privacy in terms of business or professional capacity? If so, it was likely to be discloseable

It follows, therefore, that merely because a person is named in an e-mail does not mean that data is discloseable.

It is also worth bearing in mind that the Data Protection Act applies to personal data; manual files are only covered if they are part of a relevant filing system. It follows, therefore, that non electronic data, which is not kept in some form of structured filing system would not be discloseable either.

The facts of the Durant case help to illustrate these principles. Mr. Durant had a dispute with Barclays Bank. He lost and, therefore, complained to the FSA. The FSA investigated but took no action. Mr. Durant then made a subject access request under the Data Protection Act to the FSA. The FSA disclosed all documents held on computer which mentioned Mr. Durant but it did not disclose any hard copy documents in manual files which included:-

1. A file relating to systems and controls maintained by Barclays Bank.
2. The complaint file.
3. The Bank’s investigation file.
4. Bundles of papers including papers relating to Mr. Durant’s complaint about the FSA’s failure to disclose certain documents.

Comments

Clearly a personnel file would be covered by the provisions of the Data Protection Act in either manual or electronic form as it is likely to be biographical and kept in a relevant filing system.

However, the fact that an e-mail is to or from, or mentions the name, or the data subject by name, does not mean the Act applies. If, however, the e-mail contains a note from a line manager to, for example, HR about the data subject’s recent performance, sickness or something similar, then it will be personal data and will be discloseable.

It appears that the message from the Court of Appeal is the records or documents in question must be about the employee in some defined way. The mere fact that the data subject is mentioned is irrelevant.

2. Costs

It’s a perennial complaint by employers that there is no incentive upon a former employee to accept a reasonable offer of settlement. It looks as though things might have changed since the decision in Kopel -v- Safeway Stores Plc [2003] IRLR 753.

The facts were that Ms. Kopel resigned from her job and brought complaints of unfair constructive dismissal and sex discrimination. Interestingly she also alleged that her employers had infringed the prohibitions against torture and slavery in the Europe Convention of Human Rights!

Prior to the hearing, Safeway Stores Plc sent a letter offering Ms. Kopel £5,700 in full and final settlement. The letter was marked “Without prejudice save as to costs”. The offer was rejected.

Ms. Kopel, at Tribunal, lost her case in its entirety. Safeway Stores Plc’s legal costs came to £18,000.

The EAT looked at Calderbank -v- Calderbank which is a matrimonial case. In matrimonial law, in order to encourage settlement the parties are entitled to make an offer to settle a case which contains the words “Without prejudice save as to costs”. If the party to whom the offer is addressed then proceeds, and recovers less, then the County Court have a discretion to award costs. The EAT thought that while the Calderbank rule did not apply to Employment Tribunal proceedings, it was a factor that could be taken into account. Mrs. Kopel was ordered to pay £5,000 towards Safeway’s costs.

Comment

Tribunals are clearly keen, on the basis of public policy, to encourage parties to make realistic offers of settlement.

If a party pursues a claim and fails to substantially beat an offer that has been put forward, then that party can no longer assume that there is no potential risk of costs. Of course, there may be cases where former employees pursue cases for reasons other than compensation, such as to have their name cleared, or perhaps to seek reinstatement. These are all complicating factors that an Employment Tribunal will need to consider when addressing the issue of costs.. However, there now is, at least a limited weapon in the armory of employers, which can be used to protect themselves in relation to intransigent former employees.

3. Harmonising terms and conditions following TUPE

Many employers are anxious to harmonise terms and conditions following a TUPE transaction; it eases administration and avoids dissatisfaction amongst the workforce and possible equal pay claims.
One of the methods sometimes used by lawyers to address this problem is what is known as a compromise agreement. Put succinctly there are only two ways that an employee can agree to ousting the jurisdiction of a Tribunal, firstly by an ACAS brokered agreement, or secondly, by a compromise agreement which complies with the provisions of Section 203 of the Employment Rights Act 1996.

The case of Solectron Scotland Ltd -v- Rover [2004] IRLR 4 addressed the very issue of compromise agreements.

The facts were complex but essentially a number of staff had worked for BT. They were then transferred via TUPE to, ultimately, Solectron Scotland Ltd.

Under TUPE their terms and conditions transferred. The original BT terms and conditions included a very favourable enhanced redundancy scheme.

Some of the employees entered into a compromise agreement where, in return for a lump sum they then entered into a new contract which did not contain the favourable redundancy scheme. The EAT held that an employer cannot, after a TUPE transfer, vary the terms of an employee’s contract if the variation was solely by reason of the transfer. However, in the present case the compromise agreement did not arise solely or even mainly by reason of the transfer. Its affect was solely to compromise a financial claim that the employees had on the termination of their contracts of employment. The employer was not purporting to vary the contract but merely to compromise a dispute as to its value. There was no change in terms and conditions for the future by reason of the fact that the contract had come to an end. This was not a case of changing existing terms and conditions but issuing a new contract. It followed, therefore, that the compromise agreements were valid.

Comment

Given the expense of enhanced terms and conditions, compromise agreements can represent a cost effective and immediate low risk method of harmonising terms and conditions.

4. Maternity Leave

Women on maternity leave have always been accorded special protection. Since the decision of Visa International Service Association -v- Paul [2004] IRLR 42 this may apply to advising an employee of employment vacancies.

Under UK maternity law a woman on maternity leave must not be placed at a disadvantage due to her pregnancy. In the case of Visa International Service Association the EAT upheld the finding that a company’s failure to notify the employee, while she was on maternity leave, of a vacancy which she could have applied for, amounted to a fundamental breach of the implied duty of trust and confidence and, therefore, she was entitled to succeed in a claim for constructive dismissal. The real nub of the case, however, was that it was accepted that Mrs. Paul did not have the requisite experience to be short listed for the job she had not been notified about!

Comment

It is important that staff on maternity leave receive details of any opportunities which may be to their benefit. This may include, not only job vacancies, but also training opportunities even if the employer feels, on reasonable grounds the opportunities may be of no interest to the employee.

5. Working Time

The ECJ recently ruled in the case of Landeshauptstadt Kiel -v- Jaeger [2003] IRLR 804 that time spent on call by a doctor in a hospital constituted working time for the purpose of the EU Working Time Directive. This therefore, meant that time when the doctor was sleeping in the hospital was also part of his working time. The court said “an employee available at the place determined by the employer cannot be regarded as being rest during the periods of his on call duty when he is not actually carrying out any professional activity”. In order to count as a rest period, and therefore, not working time, the worker on call must be able to leave the work place. It follows, therefore, that if a person is at home but potentially on call, their working time probably does not start until they receive a call and then ends when they leave their place of work and return home. If, however, the worker is actually at the work place and is required to be there, it is likely that the entire time, if the worker cannot leave the workplace, is working time. The position in this respect is accurately reflected in the up dated DTI Guidance on the Working Time Regulations where in relation to on call the author states that on call time is working time “when a worker is required to be at his place of work”. This decision may have an impact for all those employees who require employees to sleep on the employers premises.

6. Age Discrimination

The EAT have now held in the case of Secretary of State for Trade & Industry -v- Rutherford (No 2) [2003] IRLR 858 that the statutory right not to be unfairly dismissed, or to receive a redundancy payment for employees over the age of 65 is not unlawful.

Comments

Employers should be aware that matters may change somewhat when the Government revisits the issue of age discrimination in 2005.

7. New Financial Limits

From the 1st February 2004, the compensation limits in the Employment Tribunal have been increased. The principal matters to note are:-

1. The definition of a week’s pay rises from £260 to £270.
2. The maximum amount of an unfair dismissal compensatory award rises from £53,500 to £55,000.

If you would like further information please do not hesitate to contact Kevin McKernan, Head of Employment Unit at Crutes Law Firm.

« Back to Newsletter archives