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These are three recent employment law cases which might be of interested to regular clients:
López Ribalda and others v Spain (ECHR)
This judgment from the Grand Chamber of the European Court of Human Rights (ECHR) gives employers some clear guidance on the human rights implications of covert CCTV at work.
The background to this López case goes back to 2009 when a supermarket manager noticed a regular discrepancy between actual and expected stock levels; in some cases as much as €20,000! As part of the investigation into this the manager had a number of cameras installed (visible and hidden) in order to film the store’s cashiers. The applicants (who had been dismissed after being caught on camera stealing from the store and helping certain customers to also steal) had argued that under Spanish law they should have been informed of the surveillance.
The case eventually found itself going all the way to the Grand Chamber of the ECHR which, you will be pleased to hear, found in favour of the supermarket.
In summary, the Grand Chamber said that employers may be able to justify covert CCTV if:
Louise Lawrence, partner at Winckworth Sherwood, said: “The Lopez case makes it clear that employers have to be careful of carrying out covert surveillance of their employers even when they suspect wrongdoing. Employers have to consider whether the covert surveillance is proportionate – weighing up the intrusion in to the employees’ private lives and business needs. The decision making should be clearly documented.”.
Tillman v Egon Zehnder Ltd (Supreme Court)
The Supreme Court in this case provided some helpful clarification on the correct test for deciding when a restriction within a non-compete clause ruled by a court to be unenforceable can be “severed” without the need for any additions or modifications to the remaining wording to make the clause enforceable.
Tillman, a senior employee with Egon Zehnder, claimed she was prevented from taking up employment with a US firm due to the 6 months non-compete clause within her contract which states that she should not “directly or indirectly engage or be concerned or interested in any business carried out in competition”.
The Supreme Court decided that the phrase “concerned or interested in” is too wide to be enforceable; concluding that the phrase could even prevent a person from holding shares in a company which they had earlier bought. That part of the decision would have been expected but the Supreme Court also decided that the words “or interested in” could be removed from the clause and the restrictive covenant would still be enforceable. This decision represents a loosening of the previous stringent approach to removing unenforceable clause from restrictive covenants.
Chief Constable of Norfolk v Coffey (Court of Appeal)
The Equality Act 2010 can lead to employers being liable for “perceptive discrimination”; which is where an employee (or member of the public) can bring a discrimination claim even if they do not actually possess the protected characteristic in question – with the full list of protected characteristics being: age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race including colour, nationality, ethnic or national origin, religion or belief, sex, sexual orientation.
This is an interesting case as it is the first time the Court of Appeal has considered perceptive discrimination in relation to disability. In the employment arena, the Court of Appeal is where appeals are heard on decisions on points of law made by an Employment Appeal Tribunal. Decisions from the Court of Appeal can establish ‘case law’ (as can ones from EATs) so this makes this case significant.
In this case, the Court of Appeal upheld (i.e. agreed with) a tribunal decision that Norfolk Police Force’s refusal to accept the transfer of Coffey (a police officer) from the Wiltshire Police Force, because of a perception the Norfolk Force held that her hearing problems could develop into a disability, amounted to perceived direct discrimination.
The Court of Appeal agreed with the EAT that:
This case highlights that if an employer believes an employee (or job applicant) not only may have a disability* now but also may have a condition that is likely to continue or progress such that will likely be considered a disability in the future, then the employer should obtain medical evidence, discuss the matter with the employee and consider whether or not there are any reasonable adjustments or modifications which could be made.
Definition of disability under the Equality Act 2010
You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
The Equality Act 2010 doesn’t apply to Northern Ireland.
“Substantial and “long-term” definitions
“Substantial” is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed.
“Long-term” means 12 months or more, e.g. a breathing condition that develops as a result of a lung infection
There are special rules about recurring or fluctuating conditions, e.g. arthritis.
A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.
However, you automatically meet the disability definition under the Equality Act 2010 from the day you’re diagnosed with HIV infection, cancer or multiple sclerosis