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This months employment update covers:
1. Annual Leave entitlement
2. Employment status in the gig economy

3. Protected disclosure
4. Data Protection Act

1. If a worker is wrongly deterred from taking annual leave does their entitlement to this carry over, or is it lost at the end of each holiday year?

The Court of Justice of the European Union (CJEU) in King v Sash Windows held that it carries over.

Mr King worked for The Sash Window Workshop Ltd (SWW) as a self-employed, commission only, salesman from 1st June 1999. There was no right to paid annual leave in his contract given he was considered to be self-employed. SWW terminated his contract on the 6th October 2012 and Mr King brought various claims, including one for holiday pay.

The tribunal at first instance found in favour of Mr King setting out that he was a worker, and not self-employed, and he was awarded holiday pay dating back to the beginning of his employment with SWW in 1999.

The decision was appealed and went all the way up to the CJEU, who confirmed that were a worker does not take annual leave due to reasons beyond their control then leave carries over from subsequent years.

The decision of the CJEU could result in a substantial change in the law if the Court of Appeal chooses to follow it, which is highly likely to be the case. Currently, the Working Time Directive states that statutory holiday entitlement expires at the end of each leave year if not taken. If the Court of Appeal applies the decision of the CJEU then government will need to legislate accordingly.

The decision also potentially has significant ramifications for those working in the gig economy who are considered to be self-employed but may in fact be workers, as claims for lump sums of back dated holiday pay may be brought. This situation may well arise if the individuals concerned in the Uber, Pimlico Plumbers, and CitySprint are confirmed to be workers following the current appeals (see below article).

  1. Employment status in the gig economy – Uber, Pimlico Plumbers, and CitySprint

Last month Uber drivers were found to be workers by the EAT in Uber BV v Aslam given the degree of control exercised over the drivers by Uber.

Uber immediately made an application to “leapfrog” the Court of Appeal, and appeal the decision of the EAT straight to the Supreme Court. However, the application has been refused and the appeal is to be heard by the Court of Appeal next year.

The decision of the Court of Appeal could have significant ramifications in the gig economy, as well as the decision of the Supreme Court in the Pimlico Plumbers and CitySprint appeals, which are set to be heard early next year. This is particularly so given the recent decision of the Court of Justice of the European Union in King v Sash Windows (see above article) in which it was confirmed that if a worker has not taken annual leave due to circumstance beyond their control (for example because they were considered to be self-employed and therefore not entitled to annual leave, but later found to be a worker as was the case in King) then that annual leave carries over. Therefore holiday pay for these workers may be backdated resulting in potentially large lump sum payments to be made to the employees concerned.

  1. Does a disclosure made on the basis of self-interest amount to a “protected disclosure” under the Public Interest Disclosure Act 1998 (PIDA)?

Following the EAT’s decision in Parsons v Airplus International Limited, no.

Under the DIPA workers are offered two forms of protection:

  1. If following a “protected disclosure” a worker is dismissed and it is found that the disclosure was the reason for the dismissal, then the dismissal will be regarded as automatically unfair; and
  2. A worker will have the right not be subjected to any detriment on the ground that they have made a “protected disclosure”.

One of the key components of a “protected disclosure” under the PIDA is that the disclosure is made in the public interest.

During her employment, Ms Parsons raised various concerns regarding regulatory breaches by Airplus. She was later dismissed and the reasons provided by Airplus related to conduct and performance. Ms Parsons subsequently brought a claim for automatically unfair dismissal claiming that the reason for her dismissal was due to her whistleblowing.

Both the tribunal and then the EAT found that Ms Parsons only had her own self-interest in mind when making the disclosures rather than the public interest. This was because when raising her concerns she had made it clear that she was seeking to ensure that she was protected on a personal basis. Following Chesterton Global Ltd v Nurmohamed a disclosure may be protected if it is both based on self-interest and the public interest, but that was not the case here.

In any event, with regards to the reason for dismissal it was found by the EAT that there was clear evidence to show this was based on Ms Parsons’ conduct, and the “coincidence of timing” of the disclosures made was not enough in itself to show that this was the reason for dismissal.

  1. Can an employer be vicariously liable for an employee who breaches the Data Protection Act 1998 (DPA)?

Following the decision of the High Court in Various Claimants v Wm Morrison Supermarkets plc, yes.

In 2014, a now former employee of Morrisons, Andrew Skelton, was responsible for providing payroll data of nearly 100,000 employees of the supermarket to their auditors. However, Mr Skelton took copies of the information, published it online, and sent copies to local newspapers. It is thought the reason for Mr Skelton leaking the information was his dissatisfaction towards his employer following disciplinary action that had been taken against him the year before.

The information included details of salaries, national insurance numbers, dates of birth, and bank account details. Mr Skelton was jailed in July 2015 for eight years, but the employees concerned brought proceedings against Morrisons in the UK’s first data protection class action.

The High Court initially considered whether Morrisons could be held directly liable for breaching DPA principles. It was held that the only potential breach related to Morrisons failure to delete the information from Mr Skelton’s computer. However, the court did not find a connection between this breach and the loss caused to the claimant’s and therefore Morrisons were not held to be directly liable.

In assessing whether Morrisons could be held vicariously liable for Mr Skelton’s actions, the test from Mohamud v WM Morrison Supermarkets plc was applied. The test looks at the nature of the job/task being carried out, and whether there is a connection between this and the wrongful conduct. It was held that the task of providing data to auditors was connected to the wrongful conduct of the leaking the data, as Mr Skelton was responsible for the data and copied it whilst carrying out the task in question. As a result, Morrisons were held vicariously liable for a breach the DPA based on Mr Skelton’s actions.

The decision of the High Court is troubling for employers as certain roles inevitably require employees to work with personal data. Employers should therefore seek to ensure that measures are put in place to reduce the risk of breaches of the DPA by these employees.

Employers will also need to be aware that breaches of this nature are also likely to give rise to fines under the General Data Protection Regulations (GDPR) which are due to come in force in May 2018. Depending on the severity of the breach, fines can be up to the higher of €20 million and 4% of the annual global turnover of the entity concerned.

Should you wish to find out more about the GDPR and the implications on your business, please email NWHRGroup@dtmlegal.com to attend our free seminar to be held on 17 January 2018, between 8:00am and 10:00am, at Chester University.

If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team on Tom.Evans@dtmlegal.com or 0151 230 1217.

Tom Evans Associate

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