Rogers & Norton News

Employment Law Bulletin June 2016 Part 2

Friday, June 10, 2016

Tighter Rules on Illegal Working

On 12 July 2016, some provisions of the Immigration Act 2016 will come into force. These include: 
• A new offence of illegal working, and the power to seize illegal workers’ earnings. • Widening the offence of knowingly employing an illegal migrant to catch employers who have reasonable cause to believe that the person is an illegal worker. Punishment increases from two years to five years in prison.   If you haven’t already, make sure that your checks and processes are spot-on.   

Destruction of Confidential Information
Arthur J. Gallagher (UK) Ltd v Skriptchenko and others

An employer has successfully argued that its confidential information stored on computers and electronic devices of its ex-employee and their new employer should be destroyed.   Insurance brokerage Gallagher’s former employee Mr Skritptchenko, admitted that he had taken a client list from Gallagher. His new employer, Portsoken had used the list to approach hundreds of Gallagher’s clients. An inspection of electronic devices and computer systems confirmed the misuse.  

Important points in the case included:  
• the defendants’ admission that they had taken and misused the confidential information, and they knew that what they were doing was wrong.
• the ‘high degree of subterfuge’ involved in the use of Gallagher’s confidential information.
• a lack of confidence in the defendants. The Judge said “…I am not satisfied that the defendants can be trusted to seek out and delete such material themselves, were they to retain it whether deliberately or inadvertently.”
• the likelihood of Gallagher being able to establish at trial that there had been a breach of confidence.
• that it would be the defendants’ IT experts, and not Gallagher’s, that would take delivery of the devices and computers and search for and delete the confidential information. although the confidential material would be removed from the defendants’ devices, that information wouldn’t be irretrievably lost; copies of imaging would be retained.     A Question of Status Secretary of State for Justice v Windle and Arada

A person’s working status is important for all sorts of reasons, but it’s something that often remains unexplored until a problem arises. That is until someone claims employee rights or protection and the employer disputes their entitlement.   In Secretary of State for Justice v Windle and Arada, employment status was critical to the claimants’ race discrimination claims. To be an employee protected by discrimination law, they would need to show that they were in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’.   Both claimants (Dr Windle was Czech and Mr Arada born in Algeria) were professional interpreters who worked for Her Majesty’s Courts and Tribunals Services (HMCTS) on a case-by-case basis. They brought race discrimination claims based on their having less favourable terms of service than British interpreters.   The tribunal held that they were self-employed and outside the scope of discrimination protection. Each assignment was a contract personally to do the work, but there was no mutuality of obligation during those periods in between assignments; in other words, no obligation on HMCTS to offer the claimants work, and no obligation on them to accept work offered.   A key point that reached the Court of Appeal was whether the tribunal was right to have taken account of the fact that there was no mutuality of obligation. The Employment Appeal Tribunal had decided that it was not relevant to whether a person was employed under a ‘contract personally to do the work’.   But the Court of Appeal restored the original tribunal’s decision, dismissing the claims. Mutuality of obligation isn’t the be all and end all, but it is relevant; a lack of it may influence, or shed light on, the character of the relationship. Where someone supplies services on an assignment-by-assignment basis they tend to have a degree of independence or a lack of subordination in their relationship at work, and that is incompatible with employment status. While each case will turn on its specific facts, consideration of all the circumstances requires that mutuality of obligation (or the lack of it) shouldn’t be ignored.    

And Finally… Was that a Yawn?

Let’s face it, every job has its less interesting parts, whether that’s form-filling, filing, or faffing with spreadsheets.   But spare a thought for one French worker who is reported to have brought a claim against his employers because his job was too boring. He says that he felt forced to resign after spending years having very little to do. Of course there will be all sorts of evidential points for the French court to consider and it will be interesting to see what comes of this.   While having too little work is often seen as preferable to having too much, that’s not to say that there aren’t pressures and strains associated with a role that under-challenges a worker. Monotony, for one.  And feelings of being undervalued  or underutilised do little for job security, motivation, and state of mind. In some cases, there could be serious health consequences. There could also be powerful legal arguments including those around demotion, sidelining, and discrimination.   Good reasons, then, to keep a close eye on what your employees are, aren’t, and could be, doing.