Welcome to the October edition of Up to Date.  Read on for a quick roundup of some of the latest news and developments in relation to employment.

Harassment:  "Reluctant rub-downs" do not necessarily constitute harassment 

The EAT has held that a female manager did not harass a male team member when she gave him an unwanted back, neck and shoulder massage in an open plan office.  Although the massage constituted unwanted conduct which had the effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere, the EAT held that it was not sexual in nature, nor was it related to sex, and, therefore, did not constitute harassment under the Equality Act 2010 (Raj v Capita Business Services Ltd and anor, EAT)

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Holiday Pay:  Part-year workers should not receive pro-rated holiday pay 

The Court of Appeal has ruled that workers or employees on permanent contracts who only work for part of the year (such as term-time only workers) are entitled to 5.6 weeks holiday per year, even if they do not work for the whole year.  This is a minimum entitlement which should not be pro-rated.  The ACAS guidance on calculating holiday pay will need to be amended following this decision (Brazel v The Harpur Trust (UNISON intervening) [2019] EWCA Civ 1402)

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Definition of disability:  When is the right time to assess disability?

The Employment Appeal Tribunal has held that whether or not an impairment has a long-term substantial adverse effect should be assessed at the time of the discriminatory act and include consideration of whether the impairment was likely to last twelve months, or, where it has ceased to have such an effect, whether it is likely to re-occur (Mr E Parnaby v Leicester City Council, EAT)

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Argus Part 2- advice to employers who monitor employee emails  

The case of Argus Media Limited v Mr Mounir Halim [2019] EWHC 42 (QB), is a recent example of the English court  being sympathetic to employers by acting to prevent the unlawful use of confidential information by employees or former employees.

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Deal - or no deal? With Brexit Day looming, we round-up the key immigration developments for employers 

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Other headlines include:

Protected disclosures:  When is a protected disclosure made in the public interest?

The Employment Appeal Tribunal (EAT) has confirmed that whether or not a protected disclosure was in the public interest only requires the employee to have a reasonable belief that it was (Okwu v Rise Community Action)

Background:  Under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), workers seeking protection from dismissal or detriment must make a disclosure of information which, in the reasonable belief of the worker making the disclosure:

• tends to show commission, or likely commission, of one of six prescribed forms of wrongdoing (including breaches of contractual and statutory obligations); and 
• is made in the public interest.   

If these requirements are not satisfied, they will not qualify for whistleblower protection.  The public interest element of the test can be satisfied even if the basis of the disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker's belief that the disclosure was made in the public interest was objectively reasonable.  Consequently, Employment Tribunals may need to consider the worker's motive in making the disclosure, such as whether it was made for purely personal reasons or other reasons as well.  

Facts:  In this case, the Claimant had worked for a small charity (Rise) as a domestic violence and female genital mutilation specialist worker for a few months when Rise raised some performance concerns and extended her probation period. The Claimant emailed Rise alleging that they were in breach of Data Protection legislation by failing to provide her with her own mobile phone or with secure storage when she was dealing with sensitive and confidential personal information. Rise terminated the Claimant's employment on performance grounds and the Claimant claimed that she had been unfairly dismissed for making protected disclosures.

Employment Tribunal and EAT decisions:  The Tribunal found that the matters raised by the Claimant were not in the public interest, because:  a) they concerned her own contractual position and b) she had not provided sufficiently detailed information to amount to a qualifying disclosure. The Tribunal accepted that the Respondent had genuine concerns about the Claimant's performance and her claim was dismissed. 

However, the EAT found that, regardless of the disclosure being in the public interest (or true), the Tribunal had failed to ask whether the Claimant had a reasonable belief that her disclosure (relating to potential breaches of the Data Protection Act) was in the public interest. Given the sensitive nature of the information, the EAT thought that it was hard to see how her belief could not have been and sent the case back to the same Tribunal for reconsideration.

What does this case tell us?  This case is a reminder that, whilst whistleblowing allegations do not have to be true, the employee must have held the reasonable belief that they were in the public interest.  The nature of the disclosure will count towards discharging the evidential burden (for example, in this case, the disclosure fits clearly into data protection legislation). So, even though the disclosures in this case related to "personal contractual matters", because they also fit into the legislative framework, the chances of the public interest requirements being met are actually higher.  Employers should keep this in mind when considering whether or not a worker is protected by whistleblowing legislation.

This article was written by Natasha Wylie, Trainee Solicitor.

Employment Tribunals:  Statistics published by the Ministry of Justice show a rise in the number of claims made during 2018-2019, although the number of claims are still below pre-2013 levels

Statistics published by the Ministry of Justice show that Employment Tribunals accepted 121,111 claims between April 2018 and March 2019.  Whilst this is an increase from 109,685 claims in 2017-2018, it is still only 63% of the total figure of 191,451 claims received in 2012-2013 (the last complete year before employment tribunal fees were introduced). 

• There were 23% more compensation awards for unfair dismissal than 2017-2018, although the amount of the average and median awards were lower, at £13,704 and £6,243, respectively.  
• The number of compensation awards for discrimination claims had also reduced from last year, down from 136 to 110 awards.  

In the Employment Appeal Tribunal, 1,291 appeals were lodged in 2018-2019, which is a 30% increase on those received in 2017-2018.  More detail can be found here.