Articles
22.07.2009
Employment Law Update
Jonathan Walters comments on the latest news from the Employment circuit.
As the nights begin to draw in and the westerlies turn to northerlies I thought you’d be cheered up by some news from the ever-changing world of employment law. I joke not: in Welsh the word for July is Gorffennaf which translates as ‘end of the summer’.
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Employment Law Update
Jonathan Walters comments on the latest news from the Employment circuit.
As the nights begin to draw in and the westerlies turn to northerlies I thought you’d be cheered up by some news from the ever-changing world of employment law. I joke not: in Welsh the word for July is Gorffennaf which translates as ‘end of the summer’.
Before I get down to the essentials there are a few important matters locally.
I don’t think there’s much chance of many appellate decisions emanating from Cardiff these days in view of the lack of Judges to hear the cases at first instance. It has become almost de rigueur to have your case ‘pulled at the death’.
Congratulations must go to Mr. Stuart Williams on his appointments as Regional Employment Judge. We look forward to the appointment of further judges in Cardiff to ensure adequate cover for the Tribunals in Wales.
Thanks to Damian for organising the ELA barbecue. There was a good amount of food and wine left over but I’m glad to say that this meant that I was presented with a little something for the long journey home. Incidentally, the barbecue was enhanced by the sun shade umbrellas which were very useful at shielding us from the torrents of rain that descended upon us.
And now to business:
In a case which was not in the employment field but which is of general application to contract law the House of Lords in Chartbrook Limited v Persimmon Homes Limited 2009 UKHL 38 interpreted a poorly drafted clause in a contract by taking into account the context and commercial background behind its inclusion but ruled it was impermissible to have regard to the negotiations leading up to it.
The High Court has upheld a breach of confidence claim against a consultant who helped develop a product for one company and then used the information obtained by him when so doing when he was subsequently engaged by another company to develop a similar and competing product. In Vestergaard Frandsen A/S and Others v Bestnet Europe Limited and Others 2009 ChD 657 the High Court ruled that in order for information to be protected as confidential, it must be:
a. confidential in nature
b. disclosed to the recipient in circumstances imparting a duty of confidence ie to the consultant
c. ultimately be a breach of confidence causing detriment to the disclosing party i.e. the employer.
As employment lawyers will know there is an implied duty of confidence on an employee in relation to the employer's confidential information. However, this decision confirms that the duty is owed by workers where the role is analogous to employment. Incidentally, the product in question? Mosquito nets.
Onwards to TUPE and in the case of Metropolitan Resources Ltd v Churchill Dulwich Ltd and ors UKEAT/0286/08/RN the EAT has stressed that whether there has been a service provision change is a question of fact. The tribunal’s duty is to consider whether the evidence reveals that the activities carried out post the alleged change by the alleged transferee are fundamentally or essentially the same as those which were carried out by the alleged transferor. The EAT held that the judicially approved tests emanating from the old regulations are of no assistance to the Tribunal in deciding whether a service provision change has occurred under the new Regulations.
Another important decision in the world of disability discrimination is SCA Packaging Ltd v Boyle 2009 UKHL 37. The word 'likely' as used in paragraphs 6(1) and 2(2) of Schedule 1 to the Disability Discrimination Act 1995 refers to an outcome that 'could well happen' and not something which is more likely than not. It is likely [excuse the pun] that this test will be applied throughout the Schedule i.e. it could well happen. It is now much easier to establish disability.
In Fareham College v Walters UKEAT/0396/08/DM, it was held that a decision to dismiss an employee can amount to a failure to make reasonable adjustments. It does appear that the Courts are trying to pre-empt the Government’s proposed changes to the anti-discrimination legislation in order to negate the effect of Malcolm.
The Government has published a consultation paper on how and whether details of wrongdoing alleged by whistleblowers in employment tribunal claims, should be forwarded to the appropriate regulator to investigate if necessary. The proposal is that the reference would need to be made by consent of the claimant and the information should not be put in the public domain at least at that stage.
The Government has announced that it will bring forward its review of the default retirement age to 2010. It is only a matter of time before it is extended. I’d be surprised if it was abolished entirely.
The Equality Bill has now passed the committee stage in the House of Commons. Watch out for the new dual discrimination provisions. It will be interesting to see whether they survive the House of Lords scrutiny.
“Once more to the beach dear friends.”
Jonathan Walters
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