20 December 2018 by Lydia Newman
Court of appeal finds in favour of part-time workers in British Airways case
In the recent case of British Airways v Pinaud the Court of Appeal found that it was less favourable treatment to pay part-time workers 50% of pay when they were on duty for 53.5% of full time hours.
Mrs. Pinaud (the Claimant) had to be available to work 130 days a year and full-time workers had to be available 243 days a year. This amounted to 53.5% of the days of full-time work but she only received 50% of the pay, effectively a detriment of 3.5% pay. This case is a test case for over 600 cases brought by other part-time workers which have stayed, pending the outcome of this case.
At the Employment Tribunal (ET) there was a finding of less favourable treatment of the Claimant as a part-time worker. The ET went on to find that the treatment was not justified, largely because BA was able to increase the level of pay by 3.5%. On appeal to the Employment Appeal Tribunal (EAT), it was found that there was less favourable treatment but that the impact of availability of workers needed to be analysed before a decision was reached in relation to whether or not the difference in pay was proportionate (i.e. taking other factors into account by balancing the pay detriment against other factors). A further appeal was made to the Court of Appeal (COA) in relation to the finding of less favourable treatment.
The COA agreed that less favourable treatment had been made out in this case and referred the case back to the ET to consider whether or not the less favourable treatment was justified.
This case against such a large public company reflects the fact that all employers need to be mindful of the impact of availability to work in addition to hours worked when considering the level of renumeration for part-time workers. If parity is not achieved between part-time and full-time workers’ renumeration for the same work but different hours which cannot be justified this may well cause a significant issue for the employer.
In 2014 Morrisons Supermarket Plc (Morrisons) suffered a high volume data protection breach in which the payroll data of nearly 100,000 employees was leaked by an employee with a grudge.
Morrisons cooperated with all interested parties including the victims and the police following the breach.
As a result of the employee’s actions he was sentenced to eight years in prison for seeking unauthorised access to computer material under the Computer Misuse Act 1990 and disclosing personal data under the Data Protection Act 1998 (DPA).
Subsequently 5,500 employees brought claims against Morrisons for breaches of the DPA. In the High Court (HC) it was found that whilst Morrisons had not breached the DPA as it had strong internal security system in place, it was nevertheless held that they were vicariously liable for the breaches of their employee. This was on the basis that there was a close connection between the role of the employee and the breach. Morrisons appealed against the decision. The Court of Appeal agreed with the decision of the HC. Leave has however been granted for Morrisons to appeal to the Supreme Court on the point that holding the company liable is furthering the malicious aims of the employee and is unjust.
“As a consequence the protection for whistleblowers is at the same level as for other types of discrimination”
This case raises serious issues for employees in relation to internal data security. The motive of the employee was found to be irrelevant to Morrisons’ liability.
Companies need to consider both external and internal data protection systems. As part of this analysis, care should be taken in relation to the necessary limitation of data access within a business. If the scope of data access is set too wide, the risk of primary liability is more likely to arise. Security systems may also include encryption, including of any USB sticks, and limits on access to equipment used to access data. This is a highly complex arena and the COA has suggested that employers should explore insurance against liability for data protection breaches in light of the potentially high level of liability involved. It is also worth adding that as technologies change and different types of working practices become more prevalent (such as agile working) potential exposure is likely to increase.
In another case concerning vicarious liability the COA has found that a company was liable for the managing director’s (MD) assault of an employee. This over-turned a previous High Court decision in which the connection between the employee’s job and his assault on a colleague was narrowly construed.
It has been made clear that the correct test of acts ‘in the course of employment’ is broad. In this case although the assault did not take place as part of the company’s official Christmas party the MD chose to utilise the opportunity to raise work related issues with a lecture on his role as MD, therefore creating a link between employment and his tortious act of assault.
Although this is an unusual case, in conjunction with the Morrisons case also reported on, it reflects the fact that the courts are willing to use a broad approach in relation to the close connection test.
In respect to the facts of this particular case, employers should look to avoid ‘flash points’ such as alcohol-fueled Christmas parties that may get out of hand as a result of office tensions. Clear guidance should be provided in relation to the scope of parties.
Many companies now do not provide an unlimited free bar, choosing rather to limit free drinks to a small number per guest, and the timing of parties can also be considered.
Incentives could be provided to assist employees to get home safely at a certain time. More widely employers should be aware of the wide scope of vicarious liability and the scope of what can be considered to be in the course of employment including assault and fraud.
Another case regarding directors was heard recently at the COA. In Times and another v Osipov, the COA confirmed a decision by the High Court that two non-executive directors (NEDs) were personally liable for the dismissal of a whistleblower. As a consequence the protection for whistleblowers is at the same level as for other types of discrimination.
In this matter the company for which the NED worked had been found liable for the unfair dismissal of a whistleblower. One of the NEDs had asked the other NED to dismiss the whistleblower. These instructions were subsequently carried out. These actions were found to be in breach of the Employment Rights Act 1996 and the NEDs were as a result jointly and several liable for post-dismissal losses.
It is crucial that directors and all employees are aware that they can face personal liability, jointly and severally, in relation to discrimination claims and whistleblowing.
This should be included as part of equality and whistleblowing training. Whilst this
may be perceived as unlikely there is a growing body of case law to evidence the
fact that such claims are relatively common.
This may also act as further impetus for employees to take such training seriously. As always for employers and employees to have the benefit of such training records should be kept of the training that has taken place, to be utilised in the event of any potential claims.