Education briefing: key employment cases of 2020

Indirect discrimination

Heskett v Secretary of State: Qualifying the established principle that cost alone cannot justify indirect discrimination, the CA found this does not mean that one must necessarily ignore wider costs issues, such as where the employer is having to make choices about how best to allocate a limited budget. The critical factor is, and remains, that the employer can demonstrate its actions represent a proportionate means of achieving a legitimate aim, having regard to the disparate impact on the group in question.

Vicarious liability

Two important clarifications emerged from the SC this year.

Various claimants v Morrisons Supermarkets: in this significant decision for employers, the SC overturned the decisions of the HC and CA in finding Morrisons was not vicariously liable for an employee's criminal misuse of payroll data. The employee’s actions were not so closely connected with his role that they could fairly and properly be regarded as undertaken “in the ordinary course of his employment”. Although this case does not relieve employers of the need for robust data protection practices and barriers to data transfer, it does reset the balance of responsibility.

Also, in Various claimants v Barclays Bank plc, the SC concluded the Bank was not vicariously liable for sexual assaults on its staff by a general practitioner it engaged to carry out staff medical examinations; an individual who was entirely independent of the employer.

Maternity pay vs shared parental leave pay

Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police: one of the more unexpected decisions of the SC was its refusal to allow an appeal of this case and to review the CA decision that it is not unlawful sex discrimination for men to be paid less during periods of shared parental leave than birth mothers are paid during statutory maternity leave. A key practical impact is that, as clarified previously by the CA, enhanced maternity pay policies will not be discriminatory, per se, against men.

Worker Health & Safety

R (IWGB) v Secretary of State: in judicial review proceedings, the HC granted the IWGB trade union a declaration that the UK has failed to properly implement EU H&S. In particular, it determined that workers (as well as employees) should be protected from a detriment on H&S grounds and be provided with personal protective equipment. Despite the UK leaving the EU (and subject to future EU trading terms), this decision will continue to apply unless the Government legislates against it from 1 January 2021. In the meantime, employers should be aware that workers may seek to rely on this case before a Tribunal where, for example, they are disadvantaged for leaving work or refusing to attend due to a reasonable belief in serious and imminent danger.

Gender reassignment and protection from discrimination

Taylor v Jaguar Land Rover Ltd: although a non-binding ET decision at present, this case held that a non-binary and gender-fluid employee is covered by the definition of gender reassignment in the Equality Act 2010 and is accordingly protected from discrimination. This is the first judgment to recognise that those with complex gender identities may fall within the definition of gender reassignment and the protection afforded by the Act. Employers should be mindful that, if this decision is followed (as seems likely), gender will increasingly be seen as a spectrum in legal terms.

Equal Pay

Walker v Co-Operative Group Ltd: the CA found that an employer had established a material factor defence to an equal pay claim (i.e. a non-discriminatory reason for the difference in pay), despite their reasons being historic and preceding a job evaluation study. The case is important as it reaffirms that, to establish the material factor defence, the duty on employers is to demonstrate substantial and relevant non-discriminatory reasons but the fact those reasons may be historic does not necessarily render them invalid.

Confidentiality and settlement terms

Duchy Farm Kennels Limited v Graham William Steels: the HC found that including a confidentiality clause in a COT3 did not automatically make confidentiality a condition of settlement: it either has to be stated to be a condition or it must be apparent from the circumstances that this was core to agreement. Employers wishing to rely on any terms of settlement (such as a confidentiality clause) should express the term to be a condition of settlement or specify any penalty for breach, for example repayment of settlement money.