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Employee expectations of privacy in the workplace – employers should still proceed with caution but a recent case highlights how privacy rights could be waived.

In the case of Garamukanwa v. United Kingdom, the European Court of Human Rights (ECHR) has declared that an employee could have no expectation of privacy in relation to communications and photographs that resulted in his dismissal.

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Employee expectations of privacy in the workplace – employers should still proceed with caution but a recent case highlights how privacy rights could be waived.

Whistleblowing protection: when will a complaint be protected as a qualifying disclosure?

In order to be protected against detriment or dismissal under whistleblowing law, a worker must have made a “qualifying disclosure”. A qualifying disclosure is any disclosure of information which:

• is, in the reasonable belief of the worker, made in the public interest; and

• tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place. The six specified types of wrongdoing include a “failure to comply with a legal obligation”.

As long as the worker reasonably believes that the wrongdoing has occurred it does not matter if that belief later turns out to be wrong.

In Elysium Healthcare No 2 Ltd v Ogunlami UKEAT/0116/18 the Employment Appeal Tribunal (EAT) took a look at the ingredients of this test.

Mr Ogunlami was employed by Elysium as a health care assistant, working on one of its specialist programmes for patients detained under the Mental Health Act. He brought a whistleblowing claim, arguing that he had suffered a number of detriments as a result of having made a series of complaints regarding his supervisor, Ms Miles. The complaints concerned Ms Miles’ conduct in relation to certain patients.

Mr Ogunlami was successful in his claim at first instance. Elysium appealed to the EAT, arguing that the complaints did not amount to qualifying disclosures because Mr Ogunlami had not provided sufficient evidence that his complaints tended to show a breach of a legal obligation. In addition, Elysium argued that the public interest element of the test was not satisfied.

The EAT dismissed Elysium’s appeal. In the EAT’s view, it was apparent that Mr Ogunlami’s complaint amounted to an allegation that Ms Miles was guilty of a breach of a legal obligation – notwithstanding the fact that he had not said this in express terms. It was clear on the evidence that he viewed her behaviour as more than morally wrong or contrary to guidance. He had referred to Ms Miles’ conduct as being a disciplinary matter, a breach of company policy and a safeguarding issue. Not all breaches of policy will amount to breach of an employment contract but, in the EAT’s view, typically they will do so. The evidence was therefore enough to establish a belief on the part of Mr Ogunlami that the information in his complaints tended to show a breach of a legal obligation, namely the breach of an employment contract. The EAT was also concerned to emphasise that whistleblowers should not be expected to use precise legal terminology.

Looking at the public interest element of the test, the EAT was again unpersuaded by Elysium’s arguments. It determined that the mistreatment of vulnerable members of society readily satisfied the public interest requirement.

The public interest test was introduced in order to address the perceived problem of employees bringing whistleblowing claims based on alleged breaches of their own employment terms. The precise boundaries of the public interest test continue to develop. This case is an important reminder that anything capable of amounting to a breach of an employment contract, which also has a public interest element, may still amount to a qualifying disclosure. Where there is the potential for this protection to be triggered it will be important for employers to be particularly careful about how they manage and treat employees who have blown the whistle.

Whistleblowing protection: when will a complaint be protected as a qualifying disclosure?

Supreme Court grants Morrisons permission to appeal employee data breach

The Supreme Court has granted Morrisons permission to appeal against the Court of Appeal's ruling, which found that the supermarket chain was vicariously liable for a former employee's data breach.

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Supreme Court grants Morrisons permission to appeal employee data breach

Right to work checks- a modernised approach

The government has announced changes to modernise the "right to work" checks needed to avoid employing illegal workers in the UK. The changes will take effect from 28 January 2019.
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Right to work checks- a modernised approach

Equality – in the headlines

The UK PRM (People, Reward and Mobility) team at Dentons strives to keep you up to date with what's happening in the news that has an impact on you. It was notable that Wednesday's search had a common theme running through the articles. They all related to equality addressing either equal pay or gender diversity.
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Equality – in the headlines

Data Breach – Employers Vicariously Liable

The Court of Appeal has ruled that Morrisons is liable for a data breach which saw thousands of its employees' details posted online by a disgruntled ex-employee, Mr Skelton. The judgment has come as a shock to businesses after the Court of Appeal found the supermarket liable for the actions of its employee in this case.
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Data Breach – Employers Vicariously Liable

Employee status and agency workers: The nature of the work is the key consideration

An employee on a temporary zero hours contract should be classed as an agency worker, the Employment Appeal Tribunal found in Brooknight Guarding Limited v. Matei.
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Employee status and agency workers: The nature of the work is the key consideration

Kilraine v London Borough of Wandsworth [2018]

A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a "protected disclosure" and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.
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Kilraine v London Borough of Wandsworth [2018]

Home Office publishes details of settlement scheme for EU Citizens:

EU citizens will be able to apply for settled status in 3 easy steps for less than the price of a passport, under plans outlined by the Immigration Minister today. Please see here for further details.
Home Office publishes details of settlement scheme for EU Citizens:

Tier 2 Restricted Certificates of Sponsorship – Quota hit

Tier 2 Restricted Certificates of Sponsorship (CoS), which employers use to employ non-EU/EEA nationals in the UK, are scarce.
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Tier 2 Restricted Certificates of Sponsorship – Quota hit