Mrs C Howie v Holloways Of Ludlow Design & Build Ltd (Case number 2304755/2019)
An employee was entitled to compensation for injury to feelings in respect of maternity discrimination findings when her employer excluded her from informal work drinks which her employer had organised in lieu of a Christmas party. The financial situation of the company meant that it was a short notice event where the employer only put £200.00 on a bar tab. The tribunal accepted that the Christmas party was not held in the way that the company normally would and there was no deliberate decision to exclude the claimant. However, tribunal noted that the claimant would have been invited had she not been on maternity leave. The fact that she was overlooked because she was on maternity leave made the complaint for discrimination based on grounds of maternity a well-founded one.
Furthermore, whilst the claimant was still on maternity leave, on 1 April 2019, the claimant’s role as General Manager was made redundant. The tribunal found the claimant was also entitled to a compensatory award for unfair dismissal after her employer had failed to follow an appropriate consultation process and withheld information from her about the financial position of the company when deciding to make her role redundant. The tribunal found that the respondent’s failure to warn and consult the claimant about her potential dismissal for redundancy amounted to unfavourable treatment because the Claimant was exercising the right to ordinary or additional maternity leave.
Action point: Discrimination on grounds of maternity leave is a prohibited act under the Discrimination (Jersey) Law 2013 so this judgment will likely be persuasive authority in a Jersey Tribunal. Employers should therefore ensure employees are treated fairly whilst on maternity leave, including not overlooking them in relation to work social events solely because they are on maternity leave.
Clark v Harney Westwood & Riegels and others [UKEAT/0019/20]
The claimant was employed under an agreement stating her employer was Harney Westwood & Riegels (HWR). She was recruited to work for HWR in the Cayman Islands and her contract of employment gave an address for HWR in the Cayman Islands. Unknown to the claimant, applications for work permits were made for her to work in the Cayman Islands. Those applications were made by Harneys Gill (HB) which was a partnership arising out of a merger between HWR and another entity. This was due to the local law requiring permits can only be obtained by entities that are at least 60% Cayman owned.
She was subsequently dismissed by a letter on HWR headed paper. At first instance the Employment Tribunal held that it had no jurisdiction to hear the claim as her employer was HB. On appeal this was rejected. The Employment Appeal Tribunal held that from the written documentation it was clear that HWR was the individual’s employer.
It subsequently set out the following principles to be considered when identifying the correct employer which included:
- the starting point will be any written agreement drawn up at the start of the relationship, then checking if that truly reflects the intention of the parties
- if the written agreement reflecting the true intentions of the parties points to B as the employer of A, any assertion that C is in fact the employer will require consideration of whether there was a change from B to C and if so how (e.g. was there a novation of A’s employment contract);
- documents created without one party’s knowledge should have very little if any weight as they might point to one party’s private intentions rather than what was agreed.
Action point: Employment contracts, should truly reflect the agreement between the parties. By ensuring that any contracts or future agreements are consistent the employer reduces the risk of uncertainty and future claims. If the identity of an employer does change, the employer should give sufficient notice to the relevant employee of such change. Given that recent world events have created a fair number of changes in employees’ places of work (with some employees asking to work “from home” in another country) all these sorts of changes of employment terms need properly recording in a variation to the individual’s employment contract.
Information Commissioner prosecutes employee for passing personal information to a third party without authorisation from their Employer
On 8 January 2021 an employee was sentenced to eight months’ imprisonment (suspended for two years) after pleading guilty to conspiracy to secure unauthorised access to computer data from her employer by a third party.
A confiscation order (issued under the Proceeds of Crime Act) was also obtained which required the employee to pay the sum of £25,000 representing the benefit they received from their unlawful act.
Action Point: This demonstrates how serious the Information Commissioner in the UK is in tackling the inappropriate use of personal data. Jersey based employers can expect that the Jersey Information Commissioner would take a similar stance given that Jersey has similar pieces of legislation in place. Employers must be able to demonstrate that they were not complicit with any illegal activities of their employees so as to minimise the possibility of them also being subject to regulatory action. Having robust data protection policies within employee documents, including their staff handbooks and contracts as well as ensuring regular training highlighting both and employer’s and employees’ respective obligations in the sphere of data protection could help to minimise this risk.