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February’s Employment Law Digest – Case law round up

Less favourable treatment because of marriage to a particular man is not marriage discrimination

In Ellis v Bacon, the Employment Appeal Tribunal (EAT) found that an employee was not discriminated against due to her marital status.

The claimant (Mrs Bacon) joined Advanced Fire Solutions in 2005 and later married the managing director and majority shareholder of the company, Mr Bacon. Mrs Bacon became a director and shareholder. Mr Ellis subsequently joined the company and was appointed managing director in 2017.

Also in 2017, the claimant informed Mr Bacon that she wished to separate. That was the start of an acrimonious divorce. False allegations were made against her that she had misused company IT. She was suspended and later dismissed by Mr Ellis. A wholly baseless complaint was made to the police.

The Employment Tribunal (ET) found that Mr Ellis sided with Mr Bacon in relation to the marital dispute and was compliant with him in removing the claimant’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The ET found that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as Mr Bacon’s wife.

The ET therefore found that Mrs Bacon’s claims for direct marital discrimination were well founded.

On appeal to the EAT, Mr Ellis argued that the ET erred in its conclusion because they failed properly to address the statutory test as to the cause of the unfavourable treatment or to consider the appropriate hypothetical comparator.

The Equality Act provides that “A person (A) discriminates against another (B) if, because of a protected characteristic [which in this case, was the claimant’s marital status], A treats B less favourably than A treats or would treat others.”

The EAT allowed the appeal. His Honour Judge Shanks said he did so with a very heavy heart, knowing that Mrs Bacon had been very badly treated, but he said that he had to apply the law. He said that the issue in this case was whether Mr Ellis treated Mrs Bacon in the unfavourable ways that had been identified because she was married. The question was not whether she was badly treated because she was married to a particular person. The ET had failed to construct the appropriate comparator, namely someone in a close relationship with Mr Bacon but not married to him and ask itself whether such a person would have been treated differently.

Misuse by former employer of an employee’s private WhatsApp messages

Before commencing a High Court claim (FKJ v RVT), the claimant (F), a solicitor, brought claims of sex discrimination, unfair dismissal and wrongful dismissal in the Employment Tribunal (ET) after she was dismissed for misconduct – for falsifying a timesheet.

She claimed to have been subjected to sexual harassment throughout her employment. She lost her claim in the ET.

A significant component of the evidence used against her consisted of her own WhatsApp messages, which consisted of messages with her partner and also her best friend and which contained several years’ worth of day-to-day information about her professional, social and private life, including about her health and sex life . The ET said that this evidence “played a large part in our findings where there was a direct conflict of evidence”. Some of the messages undermined her credibility. Some were found to demonstrate that the conduct of which she complained was consensual or not “unwanted”. Some indicated that alleged misconduct did not take place at all.

Further legal proceedings (a claim for misuse of private information – “MPI”) were started by F in the High Court against her former employer and its managing partner (RVK) about how they came to have and retain 18,000 WhatsApp messages.

The claimant’s case was that RVT used her smartphone to hack into her WhatsApp messages.

RVT’s explanation was that a substantial quantity of messages were found on her work laptop when he reviewed the contents of it after she was dismissed and that two further tranches of messages had been received via letters from an anonymous source.

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The defendants issued a counterclaim arguing that F’s claim was a malicious prosecution, an abuse of process and harassment and they also made an application to strike out F’s claim and for summary judgment on their counterclaim. The High Court refused to strike out F’s claim and allowed it to proceed. The judge found that the defendant’s applications were without merit and were an attempt to stifle a claim that they “would prefer not to contest on its merits”.

RVT had argued the MPI claim would face significant problems. The judge disagreed, commenting that based on the defendant’s pleaded case, the issue to be considered at trial would more likely be about the extent of what the claimant would recover in the claim rather than the principle of whether she should recover anything. The judge had clear views on RVT’s retention and use of the WhatsApp messages. He said:

  • RVT could not seriously argue that F could not have a reasonable expectation of privacy in relation to material saved or downloaded to her work laptop during working hours.
  • In any event, RVT could not apply the lack of a reasonable expectation of privacy argument to the messages which it claimed were received through anonymous letters.
  • RVT had failed to offer any explanation or authority for the proposition that private information downloaded to a work laptop (a very common scenario) loses its private character.
  • Only 40 or so of the messages were used in the ET claim and only about half of those 40 were strictly relevant (and therefore disclosable). In respect of the bulk of the messages, there was no relevance to the ET proceedings and no justification by RVT for their retention or use.
  • The WhatsApp messages that RVT said were taken from F’s work computer in January 2018 and received anonymously in February 2018 both pre-dated the ET proceedings. Given their obvious privacy and given the absence at that time of any proceedings to which the messages might be relevant, RVT would have come under an immediate duty to notify F and deliver up the messages to her. But he did not do so.
  • Even if ET proceedings had been underway when RVT obtained the messages, the correct course of action would still have been to return the material to F or her solicitors who would then have had disclosure obligations in respect of it. The retention of private communications would have been an impermissible form of self-help which it is the policy of English law to discourage.

This case emphasises the generally private nature of WhatsApp messages and the steps that employers should take in the event of finding themselves in receipt of evidence against an employee which has been improperly obtained.

The decision on a flexible working request was a provision, criterion or practice (PCP) that could cause disadvantage or detriment, even though it was never applied in practice.

In Glover v Lacoste UK:

  • The claimant, Mrs Glover, was employed as an assistant store manager at Lacoste. She worked full time, 39 hours a week over five days, working flexibly as determined by a rota.
  • Whilst on maternity leave, she made a flexible working request to work three days a week. This request was rejected.
  • The claimant appealed the rejection of her flexible working request.
  • The appeal was upheld in part and Mrs Glover was offered part-time work, four days a week, to be worked flexibly on any day of the week. This was offered on a six month trial period.
  • The claimant argued that being fully flexible did not meet her childcare obligations. Her solicitor wrote to the employer requesting that the decision be reconsidered explaining that she may otherwise have no option other than to resign and claim constructive dismissal.
  • The employer accepted the claimant’s original flexible working request in full and the claimant returned to work on that basis.
  • The claimant pursued a claim for indirect sex discrimination claiming that the requirement to be fully flexible was a PCP (provision, criterion or practice).
  • The Employment Tribunal (ET) dismissed the claim on the basis that a PCP requiring fully flexible working had not been applied to the claimant and she had not suffered disadvantage.

Mrs Glover appealed and the Employment Appeal Tribunal (EAT) allowed the appeal. It found:

  • The ET had misinterpreted the case law.
  • The determination of an application for flexible working constitutes the application of a PCP and can result in disadvantage / detriment.
  • Once the application is determined the PCP is applied even if the employee has not returned to work and attempted to work under the new arrangement.
  • The claim was remitted to a new ET to consider the question of whether the claimant was subject to a disadvantage or detriment because of this.

The EAT commented that it was hard to see on what basis it could be held that there was no disadvantage and detriment to the claimant when the appeal was determined against her and she felt she had to consider resigning from her employment with the respondent. However, the EAT acknowledged that this was a matter for the ET to determine on the facts.