This month's update includes some interesting cases examining an injunction in a would-be whistleblowing case and the effective maintenance of the confidentiality of the documents to be disclosed, the specifics of case law surrounding the discrimination elements of two quite different claims, and a complex case distinguishing worker status from volunteer status where remuneration is involved.
- Injunction: Employee cannot use tribunal to bring stolen documents into public domain
- Disability Discrimination: Tribunal did not properly consider discriminatory element of claim
- Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
- Worker Status: 'Volunteer' Coastal Rescue Officer was a worker when carrying out remunerated activities
Injunction: Employee cannot use tribunal to bring stolen documents into public domain
In Payone GmbH v Logo [2024] EWHC 981 (KB) the King's Bench Division granted the claimant employer a final injunction against the defendant employee, restraining him from making further use of documents which he had misappropriated during his employment (the confidential documents). The claimant was a payment services provider, incorporated and domiciled in Germany. The defendant, a self-proclaimed 'whistleblower', had made substantial disclosures of the confidential documents, which he had also deployed in Employment Tribunal (ET) proceedings against the claimant. Judgment had been entered for the claimant on its claims for conversion, breach of contract and equitable breach of confidence.
In the present proceedings, the main issue was whether the defendant should be restrained by final injunction from making further use of the confidential documents, even though some (or all) of it had (according to the claimant) entered the 'public domain' through the ET proceedings.
The court held, among other things, that: (i) the confidential information had not lost the quality of confidence; (ii) save insofar as express references were made to it in the ET judgment, neither the information, nor documents including it, had entered the 'public domain', so as to defeat the claimant's entitlement to restrain further disclosure consistently with free speech considerations; (iii) the nature of the references in the ET judgment did not undermine confidentiality in the documents themselves; (iv) the protection of the claimant's rights to confidentiality and property was a legitimate aim; (v) to the extent that open justice was engaged, it was substantially outweighed by the interests of the claimant and affected third parties, who would suffer prejudice if the information were made public; and (vi) in circumstances where the claimant had applied for default judgment on its only claim in the proceedings, namely for a final injunction, and where the judge had struck out a witness statement put forward by the defendant as a defence, there could be no question of the defendant maintaining any defence to the claimant's claim; and (vii) legally, the balance of interests fell firmly in favour of maintaining confidentiality.
The court rejected the proposition that an employer whose confidential documents had effectively been stolen and then deployed against it in the ET waived rights of confidence in those documents against the employee unless the employer applied for extensive restrictions, including a private hearing in the ET.
Disability Discrimination: Tribunal did not properly consider discriminatory element of claim
In Z v Y [2024] EAT 63, the Employment Appeal Tribunal (EAT) allowed the claimant's appeal against the decision of the Employment Tribunal (ET) who ruled that the claimant was constructively unfairly dismissed by the respondent, but that her claims under the Equality Act 2010 had been brought out of time and were to be dismissed. The claimant's claim had included a complaint of discriminatory constructive dismissal but clarification of her case focused on the allegations of prohibited conduct. The claimant contended, among other things, that: (i) it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal; and (ii) the ET erred in its approach to the determination of whether there had been a continuing act, considering each of the found instances of discrimination in isolation, when it ought to have adopted a holistic approach.
The EAT held, among other things, that: (i) the ET had erred in failing to determine the claim of discriminatory constructive dismissal, which was part of the pleaded case before it; (ii) the list of issues had not replaced the pleaded claim; and (iii) the ET had been wrong to slavishly stick to the list. Consequently, the claim of discriminatory constructive dismissal and the issue had been remitted to the ET for reconsideration along with the issue of remedy.
Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
In Baldwin v (1) Cleves School, (2) Hodges, (3) Miller [2024] EAT 66, the Employment Tribunal had found the respondent employer liable for acts carried out by the two individual respondents. However, it dismissed separate claims against the individual respondents brought under section 110 of the Equality Act 2010, on the basis that it found their acts were misguided attempts to address a complex situation.
The Employment Appeal Tribunal held that there had been an error of law because:
- a contravention of s.110 Equality Act 2010 arises if A is an employee, A does a discriminatory act in the course of their employment, that act amounts to a contravention of Equality Act 2010 by the employer and none of the express exceptions in s.110 apply.
- s.110 confers no discretion on an employment tribunal not to find a contravention of that section if the conditions for individual liability under it are met (as they were in this case).
Worker Status: 'Volunteer' Coastal Rescue Officer was a worker when carrying out remunerated activities
In Groom v Maritime and Coastguard Agency [2024] EAT 21, the respondent, the Maritime and Coastguard Agency (MCA), runs the Coastguard Rescue Services (CRS) which is made up of 325 Coastguard Rescue Teams. There are approximately 108 employed staff and 3500 volunteer Coastal Rescue Officers (CRO) and Station Officers (SO). Generally, an individual is understood to be a volunteer if they are not obliged to work but agree to perform work for which they are not paid. Without consideration there can be no contract (whether as an employee or as a worker). However, volunteers may be reimbursed expenses that they have genuinely incurred with losing their status as a volunteer. As a volunteer, an individual can come and go as they please. Volunteer roles can often be ill-defined and, if some consideration can be found, an individual may find that their 'voluntary' role amounts to one as a 'worker' or an 'employee', thus acquiring statutory employment rights
The claimant was a CRO and then an SO. Documents that governed the relationship between the claimant and respondent included a Volunteer Handbook, a Volunteer Commitment, a Code of Conduct and a document headed 'Coastguard Rescue Service—Detail Coastguard Rescue Officer Remuneration'. These documents explain that, while there is no obligation to claim remuneration, it is possible to do so for time, travel and expenses associated with specific activities.
The claimant was invited to a disciplinary hearing. His membership of the CRS was terminated and he was issued with a P45. The claimant brought employment tribunal proceedings claiming that he was a worker and should have been afforded the right to be accompanied at the disciplinary hearing.
The employment tribunal decided that the claimant was not a worker because there was no contract between himself and the respondent and the relationship was genuinely voluntary. Its reasoning included that:
- the agreement was described as a voluntary agreement;
- there was no 'automatic' remuneration for any activity and many CROs never claim;
- there were a number of activities for which remuneration was not payable at all, participation in which is only explicable in the context of volunteering;
- the degree of control did not appear to be particularly significant;
- the fact that an HMRC investigation concluded CROs were not workers was 'clearly significant'.
The claimant appealed to the EAT.
The EAT allowed the appeal. It held that:
- the tribunal had erred in finding that there was no contract at all between the parties, particularly taking into account the right to remuneration for particular activities;
- there was no dispute between the parties that the claimant was obliged to perform services personally and that the MCA was not a client or customer of a business carried on by the claimant;
- the claimant was therefore a worker when he undertook activities in respect of which he was entitled to remuneration;
- the question of worker status in relation to attendance at non-remunerated activities remains an open question, which the parties may argue in the tribunal.
The EAT's more detailed reasoning on the entitlement to remuneration and the existence of a contract included, among other things, that although use of the word volunteer may suggest an absence of intention to create legal relations, 'volunteer' is not a term of art, the legal status of all volunteers is not necessarily the same and ultimately, whether or not there is a contract is determined from the documents as a whole. On the documents in this case, the tribunal erred in failing to find that when the claimant attended an activity (at least one attracting remuneration) there was a contract under which he provided services to the respondent.
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