Case updates

Employment case law updates | May 2020

Employment case law updates | May 2020

Here we take a quick look at some significant employment law decisions from the last couple of months

Vicarious liability – Morrisons Supermarkets and Barclays Bank

Morrisons Supermarkets

A 2018 case involving Morrisons saw an internal IT auditor Mr Skelton who, disgruntled that he had been subjected to disciplinary sanction, steal Morrison’s employee payroll data and put it on the internet. He also sent the data to three national newspapers, purporting to be a concerned member of the public. He was charged, and ultimately convicted of crimes under the Computer Misuse Act 1990 and Data Protection Act 1998, which was in force at the time.

However, in the meantime, 9,263 employees of Morrisons brought a class action against Morrisons. They argued that it was vicariously liable for the actions of Mr Skelton, even though he was clearly acting outside of the remit of his role. The Court of Appeal decided that Morrisons was vicariously liable, but this decision was appealed.

In the recent case of Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, the Supreme Court fortunately saw sense and overturned the decision of the Court of Appeal, deciding that Morrisons was not vicariously liable for unauthorised breaches of the Data Protection Act 1998 committed by an employee.

Barclays Bank

In a similar decision involving Barclay’s Bank, the Supreme Court decided that a self-employed medical practitioner was not in a relationship "akin to employment" with a bank that had engaged him to perform medical examinations on potential bank employees. The bank would therefore not be liable for sexual assaults allegedly committed by him. (Barclays Bank plc v Various Claimants [2020] UKSC 13)

Carluccio’s furlough case

The case of Carluccio's Ltd (in administration) Re [2020] EWHC 886 (Ch) (13 April 2020) related to the administrators of Carluccios furloughing employees under the Coronavirus Job Retention Scheme (CJRS).

When a company goes into administration, an administrator is appointed to promote its rescue as a going concern, or to realise its assets. The question here was whether the employees had validly agreed to the change in the terms and conditions of their contract of employment, such that they could be furloughed.

In what is no doubt one of many cases involving the CJRS, the High Court held that the employment contracts of employees, employed by a company in administration, had been varied by their explicit agreement to the administrators' proposal in a letter to furlough them under the CJRS. Note that this decision of the High Court pre-dates the new guidance from the Treasury, which provides that any agreement to furlough must be obtained in writing.

Homophobic recruitment policy comments made on a radio programme

In the case of NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford (Case C-507/18), the European Court of Justice has held that remarks made on a radio programme, that suggested a homophobic recruitment policy, are capable of falling within the scope of unlawful discrimination as defined in the Equal Treatment Framework Directive.

Employing someone subject to restrictive covenants – inducing a breach of contract

A former employer will often threaten legal action against a new employer on the basis that they have induced, or conspired with the former employee, to breach their contractual post-termination restrictions.

In an important judgement (Allen t/a David Allen Chartered Accountants v Dodd & Co), the Court of Appeal has held that an accountancy firm was not liable for inducing a breach of contract where it recruited an employee in breach of his post-termination restrictions (having received advice that the restrictions were probably not enforceable).

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If you have any questions please contact a member of your local employment team.

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General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

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