Key employment law cases: March 2021

Employment status: Supreme Court has confirmed Uber drivers are workers

Uber BV and others v Aslam and others - Supreme Court - 19 February 2021

In one of the most highly anticipated judgments of the year, the Supreme Court has dismissed Uber's appeal and has confirmed that Uber drivers are workers.

The Court of Appeal considered the status of Uber drivers in 2018 and upheld the 2016 decision of an employment tribunal that Uber drivers are "workers" and not self-employed, and therefore entitled to certain employment rights (such as holiday pay and rest breaks) but not all the rights of an employee.

In a summary of its judgment the Supreme Court highlighted 5 factors underpinning its finding that Uber drivers are properly classified as workers:

• Where a ride is booked through the Uber app, it is Uber that decides the fare for that ride, and therefore Uber who dictates the pay that an individual receives
• Contract terms are imposed by Uber and Uber drivers have no say on these terms
• When a driver is logged into the Uber app the driver's ability to choose whether or not to accept jobs is limited. Drivers receive a penalty if too many jobs are declined or cancelled
• Uber has significant control over the way that services are delivered, in particular the use of a rating system to rate drivers from 1 - 5
• Uber restricts communications between drivers and passengers to those through the app. Uber drivers are not capable of extending a relationship with passengers beyond the individual ride.

The Supreme Court also noted that for the purposes of calculating working time, this is not limited to the time when a driver is carrying out a job, but should also include the time when a driver is logged into the app and is ready and willing to take a trip.

This ruling will have significant consequences for Uber. In the short term, the case will be remitted to the Employment Tribunal to determine compensation for drivers. There also reported to be around 1,000 stayed cases. In the longer term, the decision may jeopardize Uber's business model and is likely to have broader ramifications for the gig-economy. This case will also be an important authority on determining worker status.

Our detailed Insight on this judgment is available here.

Disclosure: defendant companies required to "ask" senior employees to allow access to personal devices

Phones4U v Telefónica & ors - Court of Appeal - 2 February 2021

In proceedings brought by the administrators of Phones4U over alleged anticompetitive collusion, a number of telecoms operators (including Telefónica, EE and Vodafone) lost their appeal to keep their senior employees' personal devices off limits for disclosure.

The group of telecoms operators are accused of anticompetitive collusion after supply contracts were terminated, leading to Phones4U's collapse. The appeal was brought jointly by the group of operators regarding an order for disclosure made by the High Court last year. Judge Roth had ordered that the telecoms operators must ask selected "custodians" to allow independent IT consultants to search their personal mobile phones, laptops and e-mail accounts for evidence of suspected collusion. The search would affect some of the highest-profile telecoms executives.

In his ruling, he said it is "well known that where companies do engage in unlawful, collusive behaviour, the individuals involved sometimes use their personal devices and may deliberately avoid using their work e-mail or work devices". It was therefore reasonable for the telecom operators to request that existing or former employees should make the devices available for inspection, under strict conditions to maintain proportionality and safeguard privacy.

The group of operators appealed the Order on the basis that the court did not have jurisdiction to order a defendant to disclose documents not within their control (they were under the control of employees relating to personal affairs and had to be requested); that the order was not appropriate and proportionate; and was in breach of their Article 8 right to privacy (as well as the GDPR). The Court of Appeal disagreed. It held that there was nothing to prevent the operators making requests of their own custodians to search for relevant documents and that it was reasonable to do so. Further, it held that the administration of justice must be balanced against the right to privacy and a workable solution must be found. Here, it considered that the involvement of the IT consultants was an appropriate solution.

The ruling potentially has wider ramifications for employers and their employees involved in disclosure processes, who are reminded that the scope of disclosure is wide. The judgment emphasises that "disclosure is an essentially pragmatic process" and "not a straitjacket", written in broad terms so that as far as possible the relevant documents are placed before the court to enable it to make just and fair decisions. 

Disclosure: key witness ordered to disclose Whatsapp messages on smartphone

Pipia v BGEO Group Ltd - High Court - 20 January 2021

In these commercial proceedings, the High Court (partially) granted an application for extended disclosure from the Defendant (BG UK), including emails and Whatsapp messages on the mobile phones of two key witnesses.  

The underlying claim involves the alleged wrongful sale by the Defendant bank of a highly lucrative production plant in Georgia (producing nitrogen-based fertiliser), which has been listed for an eight-week trial in the Commercial Court in April 2021.

The Claimant alleges that two individuals were instrumental in the wrongdoing - although neither are party to the proceedings. The Court accepted that the contents of the mobile phones would likely provide "an unguarded picture" of their actions and intentions and that it would be right to order disclosure to the extent that they are within the control of the Defendant. The Court took the view that, in respect of one of the individuals who was formerly CEO of the Defendant, the "control" hurdle was met based on provisions set out in his service agreement granting access to documents held on any "computer". In particular, it was held that the term "computer" would logically comprise smartphones.

The judgment is of interest for employers because there appears to be a trend in litigation where corporate parties are being asked to take possession of employees' (or former employees') personal devices if they were used (at all) to make work related communications - which employees would likely resist.

Harassment: employer cannot rely on reasonable steps defence where diversity training needed refreshing

Allay (UK) Ltd v Gehlen - Employment Appeal Tribunal - 4 February 2021

In this claim for racial harassment, the EAT ruled that an employer cannot rely on the defence of taking all reasonable steps to prevent harassment where the equality and diversity training was "stale" and required refreshing.

The Claimant, Mr Gehlen, worked as a senior data analyst for the Respondent company. After being dismissed for poor performance, he brought claims in the Tribunal for race discrimination and racial harassment. The Tribunal concluded that Mr Gehlen had been subjected to racist comments on a regular basis and his claim for racial harassment was upheld. The Respondent sought to rely on the reasonable steps defence under s109(4) Equality Act 2010, namely that it had taken all reasonable steps to prevent the harassment, due to its policies and provision of relevant training to employees including the perpetrator. The perpetrator had received anti-bullying and harassment training, and equality and diversity training, some 20 months earlier. However, the defence failed and the Respondent appealed.

The EAT upheld the Tribunal's decision on the basis that it was entitled to find that the training delivered to employees had become "stale" and required refreshing. It said it is legitimate to consider how effective the steps were likely to be and how effective they have proved to be in practice. In this case, the training was no longer effective as demonstrated by the racist comments. A further reasonable step would have been to offer refresher training, and therefore the employer could not show that all reasonable steps had been taken. The fact that the perpetrator was required to undergo training after the harassment was further evidence that it was necessary.

This is an important case regarding the reasonable steps defence, among only a few reported cases on the matter. The threshold to establish all reasonable steps is high and offering training as a tick-box exercise is unlikely to suffice. When seeking to rely on training as a step, employers should note that the Tribunal will review the quality of the training and how regularly it is provided.

Whistleblowing: Tribunal misapplied public interest test

Dobbie v Paula Felton t/a Feltons Solicitors - Employment Appeal Tribunal - 11 February 2021

The EAT has overturned a Tribunal's decision that two disclosures were not, in the reasonable belief of the Claimant, made in the public interest.

The Claimant, a consultant solicitor, brought complaints that he had been subjected to detriments on the grounds that he had made protected disclosures. The disclosures related to alleged overcharging by the firm he worked for. After making those disclosures, the Claimant alleged he was subject to a number of detriments, including the termination of his consultancy agreement. The Tribunal dismissed his claim on the basis that those disclosures had not, in his reasonable belief, been made in the public interest.

However, the EAT disagreed. It referred to the key points set out in the judgment of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed, including that a disclosure about a specific incident without any likelihood of repetition can be a matter of public interest (such as a one-off error in the treatment of a patient). In this case, the Tribunal had misapplied the test. The disclosures could have advanced the general public interest in solicitors' clients not being overcharged, and solicitors complying with their regulatory requirements.

The case emphasises the importance of referring to the factors set out in Chestertons to ascertain how the analysis has been conducted. It is a clear reminder of the methodical test that needs to be satisfied to meet the hurdle of a qualifying disclosure and that narrow complaints can still qualify.

Indirect discrimination: Tribunal considered wrong pool for comparison

Cumming v British Airways plc - Employment Appeal Tribunal - 22 January 2021

The EAT has ruled that a Tribunal failed to consider the relevant pool for comparison regarding whether women were put to a particular disadvantage against men by a PCP.

British Airways had a roster arrangement for crew staff whereby for every 20 working days, they received 10 paid rest days. For staff with parental responsibilities, they had a policy that for every three days of unpaid parental leave taken, they would lose one day of paid rest leave. The policy was designed to avoid perceived unfairness otherwise employees could stay off work for a whole month by taking three weeks of parental leave and a week of paid rest days.

The Claimant argued that the policy amounted to indirect sex discrimination on the basis that a higher proportion of women take parental leave and placed women at a particular disadvantage. The Tribunal rejected her claim because the same reduction applied to all crew members of either sex who had taken unpaid parental leave.

The EAT held that this was an error of law because the Tribunal failed to consider the key question of whether women were put to a particular disadvantage against men in the same material circumstances. The relevant pool for comparison in considering this question is not crew members in general but male and female crew members who have children of a relevant age and can therefore be said to have childcare responsibilities. The case has been remitted to Tribunal for consideration of the claim based upon this pool for comparison.

For more key employment law updates from us:

• read our Insights on key developments over the last month
• review all our Employment Insights over the last twelve months
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