ABG Employment Law Newsletter – November 2015

ECJ rules “Safe Harbor” regime not safe

In a significant ruling, the ECJ has found that the “Safe Harbor” regime, which facilitates the transfer of personal data from the EU to the US, is invalid. Following revelations made by Edward Snowden about mass surveillance activity carried out by US government agencies, the ECJ no longer regards US businesses as providing adequate privacy protection for European users’ personal data. Businesses that have until now relied on the Safe Harbor regime will need to give some consideration to alternative means of legitimising data transfers. (Maximillian Schrems v Data Protection Commissioner, Case C‑362/14, 6 October 2015.)

Corporate bodies are protected from discrimination under Equality Act 2010

The EAT has held that a limited company that was a member of an LLP could bring a claim alleging the LLP had directly discriminated against it based on the age of its principal shareholder and director.

The EAT rejected the argument that only individuals are protected under the Equality Act 2010 (EqA 2010). The EqA 2010 prevents discrimination by a person against another person. “Person” is defined in the Interpretation Act 1978 as including a limited company unless the statute indicates a contrary intention (which in this case the EqA 2010 did not). Case law has established that an individual may complain of discriminatory treatment based on the protected characteristic of another person, and the same logic extends to a company complaining of discriminatory treatment based on an individual’s protected characteristic.

Although this was an employment case, the decision will affect commercial and property law too, in relation to discrimination in the provision of goods, services or facilities, or the disposal of premises. (EAD Solicitors LLP and others v Abrams UKEAT/0054/15.)

Whistleblowing: dispute relating to contractual terms can be a matter of “public interest”

The EAT has held that a dispute between an employer and a group of four employees relating to their terms and conditions of employment was capable of being a protected disclosure, entitling them to seek protection against unfair dismissal under whistleblowing legislation. The employees had raised a collective complaint regarding the allocation of overtime. The EAT overturned a tribunal’s decision to strike out the claim and held that a dispute between employer and employee as to terms of employment is a matter capable of being in the public interest.

The decision appears to be inconsistent with the purpose behind the June 2013 changes made to section 43B(1) of the Employment Rights Act 1996 by the Enterprise and Regulatory Reform Act 2013. The amendments were intended to prevent employees seeking whistleblowing protection in relation to matters regarding their own terms and conditions of employment. (Underwood v Wincanton plc UKEAT/0163/15.)

The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.

Christopher Gigg [email protected]   +44 (0)115 934 3310

Kathryn Meir [email protected]  +44 (0)115 934 3308