20th February 2020 ❘

Case Law Update

Does an employer have a right to be informed of and request information about an employee’s personal family problems?

Possibly, according to the Employment Appeal Tribunal in Q v Secretary of State for Justice

Ms Q was employed in the Probation Service. Her daughter was placed on a Child Protection Plan by the local authority due to Ms Q’s alleged behaviour. Ms Q was then subsequently dismissed for deliberately failing to report the matter fully and promptly to her employer in circumstances where she was aware of this requirement, following a previous episode and warning. Ms Q brought a claim for unfair dismissal. The Employment Tribunal found that the reason for Ms Q’s dismissal was her “gross misconduct”. The claim for unfair dismissal was dismissed.

Ms Q appealed the decision. One of her grounds of appeal was that the Employment Tribunal had not sufficiently considered her right to privacy under Article 8 of the European Convention on Human Rights.

The Employment Appeal Tribunal decided that the Employment Tribunal had in fact properly considered the impact on Ms Q’s rights and the degree of interference in her private life. The information that her employer asked for was specific, concerning the Claimant’s own personal involvement with social services. Due to the nature of the probation services’ work and their relationship with social services, the decision to dismiss was justified, proportionate, and was not an unlawful interference with Ms Q’s right to privacy.

Is a claimant barred from bringing claims if they are responsible for a historic period of illegality in the performance of the contract of employment?

No, according the Employment Appeal Tribunal in Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi

Ms Robinson worked for Al Qasimi from March 2007 to May 2017. Up to July 2014, Ms Robinson was paid gross, and it was agreed that she would arrange to pay tax and National Insurance Contributions on her earnings. Ms Robinson failed to make the deductions. From July 2014, Al Qasimi began making those deductions himself and set them aside while a dispute about Ms Robinson’s employment status proceeded.

The Employment Tribunal decided that because Ms Robinson had participated in the illegal performance of the contract by not paying tax until July 2014, this meant the contract was unenforceable by reason of illegality. The Employment Tribunal therefore rejected Ms Robinson’s claims for wrongful and unfair dismissal, which would have otherwise been successful.

The Employment Appeal Tribunal decided the Employment Tribunal was wrong in its approach to illegality. Since July 2014, when deductions for tax and National Insurance Contributions started, Ms Robinson was not participating in illegality so there was no basis on which to refuse her claims. Ms Robinson had been paying the necessary deductions for three years, and the period spent in breach of her contract did not prevent her from enforcing contractual and statutory rights.

This case raises an interesting point about the effect of a period of illegality and will be a relevant point to consider where there is a dispute about the status of a worker or the performance of the contract of employment.