UK Employment case updates - August 2016

12 August 2016

Mistreatment of migrant workers not direct race discrimination

Taiwo v Olaigbe (Supreme Court)

This case affirmed that while it is "clearly wrong" for an employer to mistreat migrant workers due to vulnerabilities associated with their immigration status, such treatment is not "direct race discrimination" under UK law.

Two migrant domestic workers had been mistreated by their respective employers, both of which had supplied false information to the UK authorities to procure the issue of their employee's visa. The employers had effectively exploited the individuals in question, using their vulnerable immigration status (on which they relied for continued employment and residence in the UK) to bully them, deny them sufficient rest-breaks and fail to pay them the National Minimum Wage. Both individuals resigned and alleged race discrimination.

The Supreme Court held that while immigration status is a "function" of nationality (the latter of which would qualify as a protected characteristic under current discrimination laws), those two terms should not be considered inseparable. For example, there are many different types of immigration status and that of many non-British nationals residing and working in the UK would not be considered "vulnerable". Ultimately, Parliament did not include immigration status as a protected characteristic under UK discrimination law and the Courts should not look past this wording.

Employers should not interpret this judgment as legitimising an employee's mistreatment on the grounds of immigration status. Depending on the circumstances, abused employees may find remedy in, for example, an action for breach of contract, under the law of tort or even under the Modern Slavery Act 2015. Furthermore, the judgment recommends that Parliament reconsiders the remedies available under the latter to ensure that all harms suffered in similar circumstances – including humiliation, fear and distress – are covered by an appropriate remedy.


Victims of discrimination can bring claims directly against work placement providers

Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust (Court of Appeal)

This case confirms that where discrimination is suffered during work placements, university students may bring employment tribunal claims directly against the placement provider.

The Claimant, a university student, brought a claim of indirect sex discrimination directly against the provider of her vocational placement when it withdrew her place due to an inability to work night shifts (for childcare reasons). The EAT upheld the Employment Tribunal's original decision that it had no jurisdiction, in accordance with the strict wording of the Equality Act 2010 (EqA), to hear the direct claim against this training provider.

However, the CA decided it was necessary to effectively "re-word" the EqA to give effect to the presumed intentions of parliament and ensure such a direct claim against the placement provider was possible. This would remove a glaring "[gap] in protection", to operate in parallel with a student's existing ability to pursue their university (in the county court) in the event that it fails to provide access to a placement or does so in a manner that is discriminatory.

This decision should serve as a wake-up call for organisations offering vocational placements. Those training for careers in professions where external/practical placements are common, such as medicine or education, now have clear guidance on who they should pursue if they suffer discrimination during a placement. Placement providers should be aware that they may be primarily liable as principal for employment tribunal claims relating to discrimination suffered "during the course of the work placement".


Home Office has broad powers to revoke Tier 2 Sponsor Licences

R. (on the application of Raj and Knoll Ltd) v Secretary of State for the Home Department (Court of Appeal)

This case confirmed that the Home Office was entitled to revoke a Tier 2 sponsor licence where an employer had not complied with its record-keeping and reporting obligations, failed to adequately address the residence labour market test while recruiting and did not provide requested documents within a specified timeframe.

Although revocation meant that the employer, who operated three care homes, could no longer employ skilled non-EEA migrant workers and may experience negative commercial consequences as a result, the CA held that this was not a disproportionately onerous sanction. The court stressed the importance of maintaining and updating records in strict compliance with the relevant guidance, using "paper trails (or the electronic equivalent)", and producing documentary evidence on request.

The Court's suggestion that compliance with the sponsorship regime was "not difficult" represents a judicial endorsement of the Home Office's broad scope to revoke licenses even if an infraction is minor. Sponsors will therefore need to clearly understand their duties and exercise constant diligence to ensure continued compliance.


Employee fairly dismissed for failure to disclose relationship with sex offender

A v B and another (Court of Appeal)

The CA confirmed that a head teacher had been fairly dismissed for gross misconduct where she had failed to notify her school's governing body of her (non-sexual) relationship with a convicted sex offender.

In light of her (and the school's) clear safeguarding responsibilities, the court considered that she should have: (1) realised this association may have posed a risk to children; and (2) notified the school so that appropriate protective measures could be implemented. It is important to note that the dismissal was for the Claimant's failure to disclose, rather than because the school had concluded that the relationship made her position untenable.

Although the CA acknowledged that the precise circumstances of individual cases would always determine whether a dismissal for association with sex offenders could justify termination on the grounds of misconduct, the majority appeared to confer the employer with relatively wide discretion in this area. The role of the employee, their influence over others and any exposure they have to children or vulnerable individuals will be taken into account.

This decision arguably strengthens the position of employers who have similar concerns about employees and may be considering dismissal. The dismissal is likely to be fair if the employer is able to show that continued employment presented a real risk to vulnerable individuals and follows a fair disciplinary procedure. Relevant employment policies and contracts should also be reviewed to ensure that, as far as is possible, employees are under a duty to report all known / suspected associations with sex offences or offenders.


Injunction to enforce restrictive covenant refused where intentionally timed to injure

Legends Live v Harrison (Queens Bench Division)

This serves as a reminder that even where a restrictive covenant is lawful and reasonable, an injunction to enforce it may be refused where action is delayed for the principal purpose of causing avoidable disruption to a competitor.

A Blackpool company, specialising in tribute acts, sought an injunction to enforce a 12 month restrictive covenant against a Michael Jackson tribute artist who had agreed to join a local competing show. Although the court found the covenant to be reasonable, valid and enforceable, it considered it would be inequitable to enforce it by way of an injunction because of the Claimant's unreasonable delay in issuing a claim. The court acknowledged that the delay was not significant, but inferred that the timing of the claim (one week before the competitor's opening show) was deliberately timed to disrupt the competitor's business.

Courts have a wide discretion over whether to grant an injunction. This case highlights that speed and motive will be amongst the factors that a court may take into consideration when exercising that discretion; a well drafted covenant may not, alone, be sufficient.