A recent ruling affirms that an employer is directly liable for the unauthorised disclosure of an employee's private information. An employee worked at a JD Wetherspoon pub for approximately eighteen months, during which time she provided her contact details, including her mother's mobile number as an "emergency contact phone number". These details were kept in her personnel file, conspicuously marked "Strictly Private and Confidential," and locked in a filing cabinet in the manager's office. She ceased working at the pub before Christmas 2018, and her details were properly retained by the defendant.

Throughout 2018, the claimant endured severe abuse from her then-partner, who was arrested in the autumn and held on remand for serious violence and harassment offences. Due to a history of abuse and her desire to avoid further contact with him, she changed her mobile phone number, rendering the number on file obsolete, although her mother's mobile number remained active.

On Christmas Day 2018, while on remand, her ex-partner obtained a mobile phone and called the Wetherspoons pub, falsely identifying himself as a police officer and claiming an urgent need to contact the claimant. A staff member who knew the claimant consulted with the manager, who then accessed the claimant's confidential personnel file, transcribed her mother's mobile number, and instructed the staff member to provide it to the caller.  

The ex-partner then called the claimant's mother, who was out at a Christmas lunch with her family, including the claimant. Again impersonating a police officer, he persuaded the mother of his urgent need to speak to the claimant, and the phone was passed to her, whereupon she was verbally abused and threatened. Not only had the abusive relationship and her fear of contact been disclosed to the manager on several occasions, but Wetherspoons was aware that "pretexting" is a known threat and that their staff was trained concerning such threats.  

The claimant successfully sought damages pertaining to the misuse of private information and breach of confidence, although claims of further breaches under the Data Protection Act (DPA) 2018 and the General Data Protection Regulation (GDPR) 2018, while initially dismissed, were later upheld by the High Court.

Here, there is a clear distinction drawn between a failure to keep data secure online and an active disclosure of data by the employer's staff. Employers must not only have policies in place but also ensure that they are understood and followed in practice. Such training must be robust and regularly reinforced to avoid being found vicariously liable. It is simply insufficient to have a "Strictly Private and Confidential" label or issue a training manual. An employee's emergency contact details, even if they are those of a relative, constitute private information, and employees have a reasonable expectation of privacy.

A Tribunal has provided a landmark ruling over employer-employee status in the context of direct payments made under the Care Act 2014, ruling that an LA was not in fact the direct employer of a carer. The appeal revolved around the question of whether the LA was the de facto employer of V, who had provided care and support to his adult brother, S, between 2013 and 2020. V was paid directly by the LA via the Care Act 2014 under a contract of employment. 

V claimed race and disability discrimination, as well as payment arrears, asserting a formal employment relationship with the LA. The Appeal Tribunal rejected all of V's claims and found no error of law in the original Tribunal’s approach, as there was no basis for an implied contract with V. The Tribunal’s findings of fact, such as his brother S's control of the budget, payslips naming S, and their family arranging cover, clearly pointed to S as the employer. The test for implying such a contract is a "necessity" in explaining the parties' actions, which was not met here, given the express contract with S.

As such, direct payments are a valid method by which an LA may discharge its statutory duty under the Care Act 2014. As to the issue of S's capacity to enter into a contract of employment, the Judge agreed with the LA that capacity is a matter for medical evidence and not mere assertion. Even if S had lacked capacity, it would have made the contract voidable, not void, and would not have necessitated an implied contract with the LA. This decision strongly affirms that LAs can effectively discharge their statutory duties under the Care Act 2014 by making direct payments, without automatically becoming the employer of the carers. This case illustrates how courts will seek to determine the identity of the employer in such direct payment arrangements. Those employed via such direct payment schemes are unlikely to be able to claim employment status with the LA unless there is compelling evidence that the LA retained significant and direct control over their day-to-day work. This case has far-reaching implications for freelancers and so employers should always seek to clarify whether any direct payments constitute a formal employer-employee relationship to avoid legal pitfalls.

A recent tribunal clarified the procedural powers of the Certification Officer (CO), ruling that applications from trade union members cannot be refused simply because they are deemed "unarguable". After becoming Chair of a prestigious university, the appellant faced three internal complaints from other members/staff of the UCU involving bullying; a complaint regarding his decision not to permit a motion for an AGM at an EGM; and a data protection breach complaint from three managers after he included information about them.

All three complaints were investigated and upheld by an NEC panel of the UCU on 13 December 2021. The UCU rules, specifically 6.1 and 13.1, outline obligations for members to abide by the rules, refrain from detrimental conduct, and provide for disciplinary procedures, including censure, barring from office, suspension, or expulsion for breaches of rules or detriment to the UCU's interests.

On the 6th September 2022, the appellant submitted nine applications to the CO, alleging that the disciplinary procedure applied in his case had been unlawful, although the CO refused to accept these on the grounds that they were "not arguable" and a tribunal appeal followed. The tribunal ruled that the applications should be remitted to the CO due to the fact that the case did not meet the criteria for striking out under Section 256ZA, ruling that the CO erred in law. The CO's power to "refuse to accept" an application under Section 108B of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 is narrowly confined to those instances where the CO is unsatisfied that the applicant has exhausted internal union complaints procedures. The phrase "unless he is satisfied" in Section 108B(1) means that if the CO is satisfied that internal procedures have been exhausted, he or she cannot refuse to accept the application on that ground. The primary mechanism for striking out applications on substantive grounds is Section 256ZA(1). Crucially, this section requires a "show cause" notice under Section 256ZA(4) – giving the applicant an opportunity to explain why their application should not be struck out.

This judgement reaffirms the procedural powers of the CO when handling applications against trade unions, strongly reinforcing the requirement for due process, specifically the "opportunity to be heard" before an application can be dismissed. This important case clarifies that, once internal union procedures are exhausted, the CO must accept any application and commence inquiries, even if those inquiries might later lead to a formal strike-out process with proper safeguards.

The Court of Appeal addressed the complexities of benefit scheme amendments and the lines of responsibility within corporate structures in a complex case surrounding post-employment entitlements. A Mr. Fasano had been an employee of RB Health Ltd., a member of the Reckitt Benckiser (RB) Group of companies, until the 13th of June 2019. The RB Group operates a long-term incentive plan, or LTIP, which makes provision of shares or share options for senior personnel employed by its various companies. 

On the 18th of September 2019, RB Group amended the terms of the 2015 LTIP, requiring those participating in the 2015 LTIP to be employed as of 18 September 2019 to benefit from amended performance conditions in May 2020. Thus, Mr. Fasano was not eligible for an award under the amended LTIP rules. Mr. Fasano brought his case against RB Health and the RB Group to a tribunal, alleging that he had been subjected to indirect discrimination on the grounds of age, contrary to Sections 19 and 39 of the Equality Act 2010. 

However, the tribunal held that RB Group was acting as the agent of RB Health when it amended the terms of the rules of the 2015 LTIP and that the provision, criterion or practice (PCP) thus pursued a legitimate aim. On appeal, it was found that the PCP applied by RB Group was incapable of achieving any legitimate aim of retaining staff and thus was not justified. However, the appeal was ultimately dismissed as the RB Group was not acting as the agent of RB Health, and neither RB Health nor RB Group was liable by reason of Sections 109 and 110 of the Act. 

The Court of Appeal dismissed the appeal and agreed with the appeals tribunal that RB Group was not acting as an agent for RB Health when it amended the performance conditions of the LTIP. Therefore, RB Health is not, therefore, liable for any change made by RB Group to the LTIP pursuant to Section 109 of the Act. The Judge emphasised that, for agency to exist under common law and therefore within the scope of the Act, there needs to be clear authorisation from the principal (RB Health) for the agent (RB Group) to act on its behalf as regards a third party, such as Mr. Fasano. The fact that RB Health's employees benefited from the LTIP didn't automatically make RB Group its agent, although there might have been a different outcome if the rules had been applied by an employer to current employees.  

This case demonstrates that, if a parent company, rather than the direct employer, makes a discriminatory decision regarding benefits, it might be harder to hold the direct employer liable under agency principles. Nonetheless, employers need to ensure that any performance-related policies are justifiable in their aim and implementation and non-discriminatory. 

In a landmark ruling, the Supreme Court clarified the legal interpretation of the words ‘sex’, ‘woman’ and ‘man’ in Sections 11 and 212(1) of the Equality Act (EA) 2010 with respect to gender reassignment and sexual discrimination following a challenge by For Women Scotland (FWS), a leading feminist organisation. FWS had challenged the statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 which stipulated that a trans woman with a full Gender Recognition Certificate (GRC) should be treated as a woman for the purposes of achieving the gender representation objective of 50% women on public boards. FWS argued that this interpretation was unlawful and outside the legislative competence of the Scottish Parliament. FWS contended that the definition of a ‘woman’ under the EA 2010 refers to biological sex, and a trans woman with a GRC is not a woman under this Act, while the Scottish Ministers argued that woman refers to ‘certificated sex’.

The Supreme Court unanimously allows the appeal and ruled that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex citing the centrality of a woman’s capacity for pregnancy and giving birth, declaring that such provisions are “unworkable unless 'man' and 'woman' have a biological meaning”. Crucially, they further noted that the Sex Discrimination Act 1975 defines a ‘man’ and ‘woman’ in relation to biological sex and that “interpreting 'sex' as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way [thus] creating heterogeneous groupings.”

This decision has significant implications for the interpretation of anti-discrimination law, ensuring that the protections afforded by the EA 2010 are applied consistently and coherently. Although this case is not an employment case, prima facie, the ruling will impact separate-sex and single-sex services and will have important implications for gender pay gap reporting. However, this judgement should not be regarded as diminishing the protections afforded to trans employees in relation to discrimination, harassment, and victimisation on the grounds of gender reassignment. Employers must continue to create a workplace that is inclusive and respectful of trans employees. However, for the purposes of the Equality Act 2010, they will not be recognised on the basis of their certified sex.