I INTRODUCTION

In the United Kingdom, employment tribunals are the principal forum for determining employment disputes. The Employment Tribunals Act 1996 sets out the claims over which tribunals have jurisdiction. However, typically, many employment-related contractual disputes are dealt with in the civil courts; for example, disputes relating to restrictive covenants and high-value bonus disputes.

Employment law is heavily influenced by EU law, so it will be interesting to see how Brexit affects UK employment law.

II PROCEDURE

i Employment tribunals

Acas

From 6 May 2014, a mandatory early conciliation (EC) procedure with the Advisory, Conciliation and Arbitration Service (Acas) came into force to provide the opportunity for disputes to be resolved without resorting to a tribunal. As a result, a claimant must contact Acas prior to presenting a claim to a tribunal. Conciliation is intended to be confidential, impartial, independent and free. Acas takes a fairly light-touch approach to EC and the parties are not compelled to engage in the process. The Acas conciliation officer has one month to attempt to resolve the dispute, which may be extended by up to two weeks by agreement.

If EC is refused by one of the parties, or attempts at a resolution are unsuccessful within the established time frame, an EC certificate is issued confirming that Acas conciliation has been complied with. The claimant can then proceed to issue a claim.

Data subject access requests

Individuals have a right to make a data subject access request (DSAR) to access personal data that is held about them. In light of the General Data Protection Regulation (GDPR), which came into force on 25 May 2018, there has been a rise in the number of DSARs being made by employees to employers. Increasingly, the requests are in the context of ongoing disputes or a tribunal claim by employees as a means of obtaining advance disclosure of documents or using it as leverage to achieve settlement in view of the time and expense that a company can incur by responding to a DSAR.

Employment tribunal proceedings

All tribunal proceedings are regulated by the Employment Tribunals Rules of Procedure 2013 (the Tribunal Rules). In accordance with the Tribunal Rules, to commence proceedings, a claimant must present a completed ET1 claim form, to the tribunal. With effect from 26 July 2017, there is no fee for bringing or defending a tribunal claim.

One of the key factors an individual must consider before presenting a claim to a tribunal is the time limit applicable. Generally, a claimant has three months, starting from the date of the relevant event, to bring a claim. However, during the EC period, the time limit is paused and resumes the day after the parties have received the EC certificate. In addition, in limited circumstances, a claimant may apply for an extension of time to submit a claim. There are different statutory tests that must be met to extend the time limit, depending on the type of claim.

On receipt of the ET1, the tribunal will review it to ensure that it meets the minimum requirements for a valid claim. Once the claim has been accepted, it will be sent to the party defending the claim, known as the respondent. If the respondent wishes to defend the claim, an ET3 response form must be completed within 28 days of the date on which the respondent received a copy of the ET1 from the tribunal. As there is limited discretion to extend this deadline, a respondent may put in a holding defence until a more substantive defence can be drafted.

If no response is filed within the established time limit, an employment judge can determine the substance of the claim without a hearing, if it is considered to be appropriate in the circumstances. Otherwise, a date will be fixed for a hearing before an employment judge, sitting alone, to determine the claim. The respondent will be notified of the hearing and any decision, but will only be entitled to participate in the hearing to the extent permitted by the employment judge.

The Tribunal Rules permit the tribunal to make case management orders at any stage of the proceedings, whether on its own initiative or on application by the parties. Case management orders typically provide for disclosure, the preparation of the hearing bundle and simultaneous exchange of witness statements. Tribunals also have the power to list a case management hearing or hold a preliminary hearing to deal with any preliminary issues that may arise.

The main hearing may be heard by a panel of three individuals, made up of an employment judge and two lay members chosen from a panel of lay members. One lay member will come from an employer background (e.g., a human resources professional) and the other from an employee background (e.g., a trade union official). However, it is increasingly common for the main hearing to be heard before an employment judge sitting alone. Unlike other courts, and in accordance with the Tribunal Rules, the tribunal seeks to avoid undue formality and may itself question the parties or a witness, so far as is appropriate, to clarify an issue or elicit evidence. As with the civil courts, hearings are open to the public.

At the end of the hearing, if it was heard by a panel, the tribunal will try to reach a unanimous decision on the issues and will give a judgment. In some instances, judgments can be reached by a majority of the panel. The judgment can either be announced orally or reserved to be given in writing as soon as practicable. In either case, the tribunal must give reasons for its decision.

Generally, a successful party does not automatically obtain an order for payment of its costs. In tribunals, unlike the civil courts, costs do not 'follow the event'. Tribunals do have the power to make a costs order, a preparation time order or a wasted costs order against a party's representative. However, these are awarded to the successful party in relatively limited circumstances. During the past few years, the number of costs awards by the tribunals has fallen, with only 479 being awarded in 2017–2018 out of the 109,685 claims that were accepted by the tribunals. The maximum cost award was £20,000.

A tribunal judgment can be challenged by a party either seeking a reconsideration, or making an appeal to the Employment Appeal Tribunal (EAT). However, an appeal to the EAT can only be made on a question of law. Further appeals from the EAT are then heard by the Court of Appeal of England and Wales. The basis of an appeal to the Court of Appeal has to be either on a question of law or on the grounds that the judgment was one that no reasonable tribunal could have reached. It is necessary to obtain leave to appeal from the EAT or the Court of Appeal if one of the parties wishes to pursue an appeal. A further appeal from the Court of Appeal can be made to the Supreme Court, but leave to appeal must be obtained from the Court of Appeal or the Supreme Court. Only a handful of cases each year are appealed to the Supreme Court.

ii Civil court

A claim that arises from a breach of an employment contract can be brought in either a tribunal or a civil court. However, as a claimant can only claim up to £25,000 for a breach of contract claim in a tribunal, such claims are often brought in the civil courts.

A claimant has six years from the date on which the cause of action occurred to bring a claim in a civil court. However, in relation to a claim for an injunction (e.g., breach of restrictive covenants), any delay can seriously damage the claimant's prospects of success.

Before commencing proceedings in a civil court, a claimant must be aware of the cost involved in doing so. There is a fee for bringing a claim in a civil court, unlike in a tribunal, and the unsuccessful party is usually liable for a proportion of the other side's costs.

The civil courts are governed by the Civil Procedural Rules, which are far more formal than the Tribunal Rules.

iii Settlement

A dispute in a tribunal can be settled at any point, whether before or after proceedings have been instigated, up until the tribunal determines the claim. This can be achieved through Acas or private negotiations. If an agreement is reached through Acas, agreements do not have to be in writing to be legally binding. However, the terms of the agreement will generally be recorded on a standard form (COT3), which contains all the agreed terms and is signed by the parties as proof of the agreement. If settlement is reached via private negotiations, this will be recorded by way of a settlement agreement that must satisfy the statutory requirements. The key requirement is that the claimant must be advised by a relevant independent adviser of the terms and effect of the settlement.

Mediation also forms part of the employment landscape for all types of disputes; however, it is not commonplace. Settlement can be reached by way of private mediation or judicial mediation. Cases suitable for judicial mediation are generally identified by the employment judge at the first case management hearing.

In a civil court, if the parties wish for the terms of the settlement to be kept confidential, a Tomlin order may be used. This is an order that stays all further proceedings on agreed terms and enables the parties to apply to the court to enforce the agreed terms, but the terms of the agreement itself are not contained within the order.

III TYPES OF EMPLOYMENT DISPUTES

i Unfair dismissal

Under the Employment Rights Act 1996 (the ERA 1996), employees who have the requisite two-year qualifying period of service have a right not to be unfairly dismissed. However, if the dismissal is for an automatically unfair reason, the qualifying period does not apply in most cases.

A dismissal will be deemed unfair unless the employer can show that it was for one of the five potentially fair reasons, which are lack of capability or qualifications, misconduct of the employee, redundancy, statutory requirement or some other substantial reason to justify dismissal. The employer will also need to show that the dismissal was reasonable and that it was carried out using fair procedures.

Unfair dismissal awards usually consist of a basic award and a compensatory award.

As of 1 January 2019, a basic award is capped at £15,240 and a compensatory award is capped at £83,682. Individuals can be awarded an amount up to the compensatory award cap or 52 weeks' gross salary, whichever is lower. The caps are increased on 6 April each year.

ii Whistle-blowing

The ERA 1996 protects employees or workers from being dismissed or suffering any detriment at work if they have made a 'protected disclosure'. To qualify as a protected disclosure, an individual must have disclosed information that they reasonably believe relates to one of the six categories set out in the ERA 1996 (e.g., breach of a legal obligation or a criminal offence). The individual must also have a reasonable belief that the disclosure is in the public interest. The disclosure must also be made internally within the employer's organisation or externally to one of the 'prescribed persons' set out in Sections 43d to 43h of the ERA 1996 (e.g., to an industry regulator). There are additional requirements that must be complied with if the disclosure is being made to a prescribed person.

The dismissal of an employee will be automatically unfair if the reason, or the principal reason, is the qualifying disclosure. It is not necessary to have a minimum period of service to bring such a claim. A detriment claim can be brought by a worker, which is defined more widely than in relation to other employment rights. It includes, among others, agency workers, freelance workers and trainees, as well as employees. Detriment can include unfair treatment, threats of or pursuance of disciplinary action, or performance management as a result of an individual having blown the whistle.

There is no cap on compensation for whistle-blowing, whether an unfair dismissal or a detriment claim.

iii Discrimination

Under the Equality Act 2010 (the EqA 2010), there are four forms of discrimination claim that an employee or a worker can bring, namely direct discrimination, indirect discrimination, harassment and victimisation.

Direct discrimination is when an individual is treated less favourably because of a protected characteristic. The protected characteristics are age, disability, gender reassignment, marital or civil partnership status, pregnancy and maternity, nationality, race or colour, religion and belief, gender and sexual orientation. Generally, direct discrimination is not justifiable; however, age discrimination can potentially be justified if it is a proportionate means of achieving a legitimate aim.

In relation to the protected characteristic of disability, an employer has a duty to make reasonable adjustments. Failure to do so can result in an employee bringing a claim for failure to make reasonable adjustments under the EqA 2010.

Indirect discrimination relates to a provision, criterion or practice (PCP) that is not intended to treat anyone less favourably but has the effect of unlawfully putting an individual with a protected characteristic at a disadvantage. A PCP will amount to indirect discrimination unless it can be objectively justified by the employer.

Harassment is any unwanted conduct relating to a protected characteristic (excluding marriage and civil partnership, and pregnancy and maternity) that has the purpose or effect of either violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for an individual. For example, making racial or ageist remarks or making unwanted advances of a sexual nature in the workplace would be classified as harassment. An individual need not have the protected characteristic that is the subject of the abuse; for example, it can be based on the perception that they have the protected characteristic.

Victimisation occurs when an individual is subjected to a detriment because either the individual has carried out a protected act or it is believed that the individual has carried out or may carry out a protected act. Section 27(2) of the EqA 2010 sets out what may qualify as a protected act. The most obvious form of victimisation is when an individual is penalised by an employer for bringing discrimination proceedings against that employer; for example, if an employer gives an adverse reference as a result of the proceedings having been instituted.

Compensation for all forms of discrimination claims is not capped. In 2017–2018, the highest discrimination award was in relation to a disability discrimination claim in the amount of £242,130.

iv Employment status

Whether an individual is an employee, worker or self-employed is of key importance in relation to any employment benefits or rights he or she may have. For example, certain rights are available to employees and workers, such as the right to the national minimum wage and paid annual leave, but only employees benefit from certain other rights, such as the right not to be unfairly dismissed. In addition, the tax treatment of an individual will depend on his or her employment status.

In general terms, an employee is someone who has entered into or works under a contract of employment. An individual is self-employed if she or he is in business on his own or her own account. In contrast, a worker is an individual who has entered into or works under a contract of employment, or any other contract whereby the individual performs the work personally for another party to the contract, but the individual is not carrying out business on his or her own behalf. In determining employment status, the courts, tribunals and Her Majesty's Revenue and Customs will look at a number of factors governing the arrangement between the parties. There is no single conclusive test for an individual's employment status.

v Other disputes

Other common disputes heard in a tribunal are those relating to holidays and wages. Holiday disputes usually involve employees or workers claiming they have been underpaid or prevented from taking annual leave, whereas wage disputes usually arise from an employer making an unauthorised deduction from a worker's wages.

vi High Court disputes

Employment claims issued in the High Court are typically either high-value breach of contract claims (e.g., in relation to notice periods or bonus issues) or claims relating to restrictive covenants (e.g., when an employer seeks to restrain an employee from acting in breach of a covenant). Breach of contract claims valued at more than £25,000 must be issued in the High Court as the tribunals do not have jurisdiction to hear such claims.

When a dispute relates to post-termination restrictions, an employer may seek to enforce the restrictions by asking the High Court to grant an injunction. It is possible to apply for an interim injunction or a final injunction, or both. An injunction is an equitable remedy, granted at the discretion of the court, and the court will consider the competing interests of the parties when exercising its discretion.

At the interim or interlocutory injunction stage, before a final determination of rights has taken place, the High Court must take whichever course of action is likely to 'hold the ring' until trial. The factors that the High Court should take into account when exercising its discretion in a claim for injunctive relief were set out in American Cyanamid Co v. Ethicon Ltd [1975] AC 396. Broadly, the High Court is required to consider whether there is a serious issue to be tried, whether damages would be an adequate remedy and which party would be most prejudiced by its decision to grant or decline the interim injunction.

Once the trial has taken place, a final injunction may be granted in respect of the successful party's rights. As an alternative to seeking an injunction (or if the injunction is refused), an employer can consider other types of High Court claims, for example a claim for damages for breach of covenant against an employee and, where relevant, any new employer who has facilitated or procured a breach.

IV YEAR IN REVIEW

i Key themes

Gig economy workers

The question of whether an individual is a worker has dominated UK employment law during the past two years. The rapid development of the 'gig' economy has changed the pattern and face of the UK employment and labour market, leading to criticism that UK employment law is failing to keep up. The gig economy is made up of businesses that do not pay individuals a regular wage; instead, they are paid for each 'gig' they complete, such as delivering food. Gig economy businesses tend to engage people not as workers or employees but as independent, self-employed contractors who are free to accept or reject work as they wish. It is estimated that more than one million people are engaged in this emerging sector and the numbers are rising. This year, there has been a judgment from the highest judicial level, the Supreme Court of the United Kingdom, in this area. However, we anticipate that it will not mark the end of this trend.

Whistle-blowing

Whistle-blowing continues to be one of the more complicated areas in employment law, for a number of reasons. First, the stakes are high with a whistle-blowing claim, especially the reputational damage to an employer and the immense pressure on an employee. Second, the case law in this area is still developing, as has been seen again in 2018. Therefore, whistle-blowing has not reached its climax and it seems inevitable that this area of law will continue to develop and evolve.

ii Significant cases

Unfair dismissal

During the past two years, reported unfair dismissal claims have not had as wide an impact on the UK employment law landscape as in previous years. Broadly speaking, the law on unfair dismissal has been in place since 1971. As a result, many of its basic principles and concepts are now fairly well understood in general and have been considered in many cases.

However, in two areas there have been important cases this year for employers to take into account.

The first relates to the frequent issue of delay in disciplinary proceedings. In Talon Engineering Ltd v. Smith UKEAT/0236/17, the claimant was suspended in July and dismissed two months later. She did not attend the disciplinary hearing because her representative, a trade union official who had been advising her throughout, was unable to attend the revised date. There is a statutory right to delay the disciplinary hearing for five days. However, her representative wanted it delayed for two weeks, which the employer refused. The tribunal and the EAT accepted that the dismissal was unfair as a result.

This is troubling for employers, because after a suspension for two months there is a danger that a tribunal could take the view that the suspension has been too long and the process unfair as a result. It is, therefore, very likely that employers will have to choose very carefully whether to agree to lengthy adjournments in the disciplinary process or face claims for unfair dismissal.

In Afzal v. East London Pizza Ltd t/a Dominos Pizza UKEAT/0265/17/DA, the employee was dismissed for failing to provide the necessary paperwork to prove he had the right to work in the United Kingdom. Having been dismissed, he then produced the paperwork, but the employer refused to hold an appeal against the original decision. The tribunal decided this made the dismissal unfair, which was upheld by the EAT. An appeal process is almost always required in the disciplinary process. Overall, employers cannot ignore a fair process, even when dismissing staff they believe to be working unlawfully.

Whistle-blowing

In contrast to unfair dismissal claims, reported cases on whistle-blowing have dominated the UK employment law landscape in the past couple of years. In the past 12 months in particular, a number of the key cases have involved appeals from the EAT to the Court of Appeal. Whistle-blowing cases are highly significant for employers as there is the possibility of uncapped damages, personal liability for managers involved in penalising whistle-blowers and reputational damage as a result of the public and accessible nature of hearings and online judgments.

In Kilraine v. London Borough of Wandsworth [2018] EWCA Civ 1436, the Court of Appeal considered the circumstances in which allegations may amount to disclosure of information for whistle-blowing purposes. Both the EAT and the Court of Appeal were clear that there is no rigid distinction between 'information' and an 'allegation', as was suggested by the tribunal. A statement of information that can also be characterised as an allegation can amount to a protected disclosure. However, not every statement involving an allegation would do so. Whether an allegation qualified as a disclosure would depend on whether it has sufficient factual content and specificity, which is dependent on the facts in the case.

Timis and Sage v. Osipov [2018] EWCA Civ 2321 is an important case, in which the Court of Appeal upheld the EAT's decision that two individuals (in this case, two non-executive directors of a company) can be held personally liable, with the employer, for losses flowing from a whistle-blower's dismissal. In this case, the employer and the two non-executive directors were held to be jointly and severally liable for compensation of more than £1.7 million following the claimant's dismissal for having made protected disclosures. The EAT decided that the existence of the unfair dismissal claim (which had been brought against the employer only) did not preclude the individual relying on the dismissal as an unlawful detriment to sue the two non-executive directors.

This case will have a significant impact, subject to any successful appeal to the Supreme Court. In broad terms, it appears easier to succeed in bringing a detrimental treatment claim, as there is a lower hurdle in relation to causation. It enables claimants to sidestep the test of an unfair dismissal claim and the reasonableness requirements, and sue individuals for unlawful detriment. The decision will also cause managers and directors to be very cautious if they are asked to deal, for example, with internal disciplinary processes that might lead to whistle-blowing claims, thereby exposing them to personal liability. We would expect that members of staff who do agree to assist will be asking their employers for an indemnity before doing so. A further consequence of this case is that we will inevitably see more whistle-blowing claims issued against employers and various other named respondents who have been involved in the process.

In Malik v. Cenkos Securities plc UKEAT/0100/17/RN, the EAT confirmed that a person who subjects a whistle-blower to a detriment must be personally motivated by the protected disclosure in order for the claim to succeed. In this case, Dr Malik argued that the decision to suspend him was influenced by protected disclosures he had previously made about his employer. The tribunal decided that such disclosures had not influenced his suspension. Dr Malik appealed to the EAT, arguing that a chain of command had influenced the decision and that the motives of other individuals in the chain should therefore have been considered. This was rejected by the EAT, who held that it would be unjust to take someone else's motive into account in circumstances where the decision maker can be held personally liable, even if the decision maker was acting on information tainted by another individual's discriminatory motivation.

Discrimination

There were a number of themes coming out of discrimination law this year. In particular, disability discrimination has thrown up a number of interesting issues.

In City of York Council v. PJ Grosset [2018] EWCA Civ 1105, the claimant was a teacher employed by the respondent. The claimant, who is disabled, asserted that his general health was affected by an inappropriate and excessive workload, and led to him suffering from stress. While suffering from stress connected with his disability, he showed a class of 15-year-olds a horror film rated with an 18 certificate. He was dismissed, which he claimed amounted to disability discrimination, contrary to Section 15 of the EqA 2010. This states that an employer has discriminated against a disabled person if that person is treated unfavourably 'because of something arising in consequence of' that person's disability, and the treatment is not a proportionate means of achieving a legitimate aim.

The employer accepted that it knew the claimant was disabled. However, the employer was genuinely unaware that there was any possible link between his disability and showing the 18-rated film to his class. The tribunal and the EAT accepted that the employer could be in breach of Section 15 of the EqA 2010, even if it did not know there was a link between the claimant's error of judgment and his disability. This meant that, in dismissing the claimant, the employer had to meet the higher test of proving the dismissal was a proportionate means of achieving a legitimate aim, rather than the ordinary unfair dismissal test. The tribunal decided that the dismissal was not a proportionate means because the need for the dismissal had arisen because the employer had failed to address the issue of the excessive workload suffered by the claimant. As such, when an employer is aware that an individual is disabled, it is going to be extremely important that the employer treads very carefully, in particular if there is any suggestion that the employee's disability is a contributing cause to the problem.

In DL Insurance Services Limited v. O'Connor [2018] 2 WLUK 589, another employee claiming under Section 15 of the EqA 2010 won her case. She had had significant sickness absence and had reached six times over the trigger point in the respondent's sick pay policy for receiving a written warning. The tribunal accepted that the employer had been very patient with the individual. However, the issue was whether the employer was treating the employee adversely, in breach of Section 15 of the EqA 2010. The employer said it had issued a written warning to the individual, which had the effect of stopping her sick pay, because it wanted to ensure adequate attendance levels of staff. However, the tribunal pointed out that if the absences were accepted as genuine by the employer (which they were), then a written warning was not going to have an effect on whether the employee was absent from work. As such, the written warning was a breach of Section 15 of the EqA 2010.

As in Grosset, the employer in O'Connor knew the employee was disabled, and the link between the individual's disability and her absence was obvious. The issue is whether the employer could have framed its reason for giving a written warning for a more suitable objective.

Cases continue to trouble employers in relation to the interplay between shared parental leave and maternity pay. In Capita Customer Management Limited v. Ali & Others UKEAT/0161/17, the employer faced a claim for direct sex discrimination. The claimant was a father who wished to take shared parental leave. His wife's maternity pay was enhanced but the employer did not enhance shared parental leave, although it did pay the same rate of shared parental leave pay to men and women. However, the claimant wanted to compare himself with the higher voluntarily enhanced maternity pay. The EAT found that this claim failed. The EAT felt that a direct discrimination claim was not available because the purpose of maternity leave was to look at the health and wellbeing of women during pregnancy and after childbirth.

In Hextall v. Chief Constable of Leicestershire Police and another UKEAT/0139/17, the claimant put the argument slightly more subtly. He claimed that it was indirect sex discrimination, because shared parental leave would be taken by a higher proportion of men, whereas maternity leave is predominantly taken by women. This case, when it went to the EAT, considered that the tribunal had not evaluated the test for indirect discrimination correctly and sent the matter back to the tribunal for a rehearing.

Both cases are under appeal to the Court of Appeal and employers will be studying them carefully. If the direct sex discrimination case wins, then it will be essential for employers to level shared parental pay and maternity pay. If the indirect sex discrimination claim wins (but the direct sex discrimination fails) then employers may be able to justify paying different rates for enhanced maternity pay and enhanced shared parental leave. However, employers are likely to view it as an unnecessary risk to run, given that claims can go back for six years, and it would only take one successful claim against an employer to open the floodgates.

Employment status

Employment status is an extremely important concept, as the status of an individual will determine what rights they are entitled to. This is an area of employment law that has dominated the headlines in the past two years and has attracted a great deal of attention from the general public.

In the first case of this kind to go to the Supreme Court, Pimlico Plumbers Ltd and another v. Smith [2018] UKSC 29, the Court found that a plumber was, in fact, a worker, as opposed to being self-employed, despite the contract labelling the individual as an independent contractor. It therefore confirmed the decision of the EAT and the Court of Appeal. The Supreme Court found that the claimant was obliged to work personally for the company, with only a limited right to appoint a substitute; this limitation was considered a significant factor. Unfortunately, this case does not provide any further legal clarity and the decision is highly fact-specific. However, the Court of Appeal did make the following interesting observations about substitution clauses generally, which, although the Supreme Court did not expressly endorse them, neither did it reject them:

  1. an unfettered right to substitute another person to do the work is inconsistent with the obligation to accept work personally;
  2. a conditional right to substitute may or may not be consistent with the obligation to accept work personally, depending on the conditions;
  3. the greater the limitations for the individual seeking to find a substitute, the more likely it is that the individual is providing a personal service;
  4. if the right of substitution only operates if the contractor is 'unable' to do the work, rather than simply choosing not to do it, then the substitution right is still consistent with personal service;
  5. it is the exception that would prove the rule; and
  6. if the individual has a right of substitution, but would have to show that the person he or she had given the work to was equally well qualified, that right would be inconsistent with personal performance.

Uber BV and others v. Aslam and others [2018] EWCA Civ 2748 is similar to the Pimlico Plumbers case. Here, Uber drivers argued that they are workers, as opposed to self-employed, and are therefore entitled to basic employment rights such as the national minimum wage and holiday pay. The EAT, agreeing with the tribunal, concluded that the drivers were workers. The case has now been decided by the Court of Appeal, which upheld the tribunal and EAT decisions. Interestingly, however, the Court was not unanimous, with one of the judges ruling in favour of Uber. The majority considered that the tribunal had been entitled to come to a view that the documentation, which purported to show Uber working for the drivers, was in fact a sham, and the correct analysis was that the drivers were workers for Uber. Clearly, this case or this issue is likely to run throughout 2019. However, in December 2018, the government published the Good Work Plan, setting out what it describes as 'the biggest package of workplace reforms for over 20 years'. Within it, the government states that it will legislate to improve the clarity of employment status tests, but it is yet to say how it will provide this clarity.

Data privacy

Employers have a number of obligations with regard to the personal data they hold about their employees. One of these is to ensure that employees' personal data is kept secure, and the financial consequences of breaching this obligation can be very severe since the introduction of GDPR. WM Morrison Supermarkets plc v. Various Claimants [2018] EWCA Civ 2339 is an important case, of which employers should take note, as the Court of Appeal held the employer vicariously liable for a data privacy breach, even though the facts of the case were that a rogue employee had deliberately sent employee personal data to third parties. The Court of Appeal admitted that the employer was not to blame for the breach, but concluded that the wrongful acts of the 'rogue' employee were within the field of activities assigned to him by the employer and therefore the employer was vicariously liable. Since the data breach related to 100,000 Morrisons employees, and it is not necessary for the claimants to show that they suffered any loss or damage before they receive financial compensation for the data breach, it is clearly a huge case for Morrisons.

In a related area, the courts have also had to consider the issue of non-disclosure agreements. Non-disclosure clauses are common in settlement agreements and may effectively be included in contracts of employment, in which there are tightly worded confidentiality clauses. In ABC & Others v. Telegraph Media Group Limited [2018] EWCA CIV 2329, five employees of the company made allegations of inappropriate behaviour against a senior executive. All of the claims were settled. All the individuals had independent legal advice before entering the settlement and received significant payments settling the claims. In all the cases, there were terms under which both sides agreed to keep the subject matter and the complaints themselves confidential. There was an exclusion to allow individuals the right to make legitimate disclosures, including the reporting of any criminal offences, if they so wished. The press got wind of the story and wanted to publish the allegations.

The company and the senior executive applied for an injunction to prevent disclosure of the story. The Court of Appeal confirmed it would issue an injunction as requested. The Court accepted that each of the settlement agreements had an express contractual obligation of confidentiality. Provided the agreements had been freely entered into, there had not been improper pressure, and the employees had had independent legal advice, there were strong public policy reasons in favour of upholding the non-disclosure clauses. The Court also accepted that there was an important and legitimate role for non-disclosure agreements in the consequential settlement of employment disputes.

The case is important because, in the wake of the #MeToo movement, there has been a suggestion that non-disclosure clauses were, by themselves, inappropriate. The Court of Appeal has firmly rejected that assertion. However, employers do still need to ensure that clauses are properly drafted and permit legitimate disclosures of wrongdoing to the appropriate authorities.

V OUTLOOK AND CONCLUSIONS

Employment law has a reputation for being fast-paced, with significant legal developments occurring every year: 2018 was no exception. From the cases that we know are continuing through the system (such as Uber, Capita and Hextall), it is quite clear that there will be a number of significant further developments in UK employment law in 2019.


Footnotes

1 Nicholas Robertson is a partner at Mayer Brown International LLP.