UK: Ones To Watch For 2016

Last Updated: 11 February 2016
Article by Michael Bronstein, Ryan Carthew, Gilla Harris and Sarah Beeby

In the ever-evolving sphere of UK employment law, 2016 is set to be no different from other recent years. We are likely to see a wealth of developments as new legislation is enacted and new cases heard and as relatively long-running cases are (hopefully) concluded and decisions made by the appellate courts, examining judgments which were handed down in 2015.

We take a look at the three decisions which we are most eagerly awaiting:

Chesterton Global Limited (t/a Chestertons) v. Nurmohamed UKEAT/0335/14/DM: Whistleblowing

In April 2015, the Employment Appeal Tribunal (EAT) once again looked at the scope of the requirement that a disclosure must be "in the pubic interest" in order for it to be protected under the Public Interest Disclosure Act 1998. The words "in the public interest" were inserted into section 43B(1) of the Employment Rights Act 1996 (the 1996 Act) by section 17 of the Enterprise and Regulatory Reform Act 2013 (the 2013 Act), meaning that a disclosure must be in the public interest before it can constitute a disclosure qualifying for protection. Several EAT cases followed as the Tribunals were asked to determine the meaning of these four seemingly innocuous words and the EAT largely seemed to adopt a broad interpretation of the concept. In the Chesterton case, the EAT was asked to look at an Employment Tribunal's finding that a disclosure made in the interest of the relatively finite group of 100 or so senior managers employed by the respondent could have been made in the public interest.

In keeping with recent cases, the EAT dismissed Chesterton's appeal, finding that:

a. the question for consideration under section 43B(1) of the 1996 Act is not whether the disclosure is per se in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest;

b. the sole purpose of the amendment to section 43B(1) by section 17 of the 2013 Act was to reverse the effect of the case of Parkins v. Sodexho Ltd. The words "in the public interest" were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature, and there are no wider public interest implications.

Chesterton has appealed against this decision, which has the effect of only curtailing the protection afforded to potential whistleblowers in limited cases where the breach, act or omission alleged is of an entirely personal nature. Currently, the disclosure does not need to be made in the public interest at all – the worker simply needs to have a reasonable belief that it is. It is hoped that the Court of Appeal will seize the opportunity to clarify (and, employers must hope, to restrict) the extent of the "public interest" requirement.

Dawson-Damer v. Taylor Wessing LLP [2015] WLR(D) 361: Subject Access Requests

The Court of Appeal will be looking at the Data Protection Act 1998 (the DPA) and specifically the obligation on a data controller to comply with a data subject access request made under section 7 of the DPA and the extent of the exemption provided for under section 8(2) of the DPA, which provides that this obligation need not be complied with where the supply of the information is not possible or would involve disproportionate effort.

In August 2015, the High Court refused the application of various individuals for an order compelling Taylor Wessing to comply with a subject access request which, in effect, required the data controller to carry out expensive and time-consuming searches of files dating back over 30 years in order to determine whether or not information was protected by legal professional privilege, in which case it would be protected from disclosure by paragraph 10 of Schedule 7 of the DPA. The High Court held that, when dealing with a subject access request, under the "disproportionate effort" exemption, a data controller is only required to supply such personal data as is found after a reasonable and proportionate search. The demands of the claimants were held not to be reasonable and proportionate and Taylor Wessing was, therefore, able to rely on a blanket exemption for legal professional privilege and did not have to comply with the request.

We hope that, when this matter comes before the Court of Appeal later this year, further guidance in respect of what these requirements of reasonableness and proportionality will encompass will be given, if indeed the Court of Appeal agrees that this is the correct test to apply. We will also wait with interest to see what view the Information Commissioner takes of the Court of Appeal's decision and what this means in practice for data controllers in 2016.

USA v. Nolan [2009] UKEAT 0328 08 1505: Redundancy Consultations

It is notoriously difficult to determine the point at which the possibility of redundancy becomes more than just that and the obligation to consult collectively in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) arises.

In this case, Ms Nolan was made redundant following the US government's decision to close the US army base in Hampshire, where she worked. There had been no consultation in respect of the decision to close the base, merely a consultation in respect of the consequential redundancies once that decision had already been taken. The EAT therefore ruled that Ms Nolan was entitled to a protective award for failure to consult.

The Court of Appeal must now determine whether this consultation obligation arises when the employer is proposing, but has not yet made, a strategic decision that will foreseeably lead to collective redundancies or whether the obligation only arises once that strategic decision has been made. We hope that the Court of Appeal will seize the opportunity to provide some clarity on this point.

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