This edition is packed with great content that I hope will be both informative and interesting to our ever growing readership. There are five short articles on (i) Uber and its drivers' personal data; (ii) Remedies - assessing future loss; (iii) Positive discrimination - when is it lawful?; (iv) Extending time due to the abolition of the fees regime; and (v) Injury to feelings - the revised Vento bands.
As editor, I continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team.
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Uber, the Gig Economy and Personal Data
Uber is being challenged in relation to its handling of its drivers’ personal data. The minicab app giant has recently faced particular pressure on the employment status of its drivers within the gig economy.
Some of those drivers are now asserting their right under the Article 15 of the General Data Protection Regulation to access personal data they say Uber holds about them, as part of the battle to define the edges of the gig economy.
Right of access requests give individuals the ability to know what personal data about them is being processed by a data controller and why, and to obtain a copy of their personal data.
It is difficult to see how Uber could justify refusing access to drivers’ own personal data. While both GDPR and the Data Protection Act 2018 contain exemptions, these are heavily qualified and it looks unlikely that a total refusal to provide access can be justified. If Uber refuses, both the Information Commissioner’s Office and the courts could be approached to force it to comply.
The GDPR issue does not directly relate to the tension between Uber’s business model and its drivers’ complaints about their terms and conditions. But use of GDPR may reveal information that could then be deployed in litigation or broaden the scope of any dispute. It provides a salutary reminder of the range of tactics available in tribunal or other proceedings.
Employers are used to Subject Access Requests being made by employees with the goal of obtaining information in advance of employment tribunal proceedings (and in advance of standard disclosure). The advent of the GDPR and Data Protection Act 2018 are likely to fuel an increase in such applications and employers would appear to have limited means to resist them.
Remedies and Assessing Future Loss
A consideration of remedy issues by the EAT in Q Qu v Landis & Gyr Ltd
The Claimant succeeded in a claim of unfair dismissal (for poor performance) and victimisation (reduced bonuses and a failure to award pay increases). A remedy hearing was held, which was the subject of the present appeal.
The Claimant sought career long losses albeit he had secured another job on a lower salary. The Tribunal rejected this approach and concluded that the Claimant would secure another job within 3 years.
The EAT upheld the Tribunal’s decision confirming that the appropriate question for a future loss of earnings assessment is when, on the balance of probabilities, an employee would, subject to the vagaries of life, find an equivalent job. Necessarily that calculation is speculative and predictive and the Tribunal should set out its best estimate for the future. This was not one of the rare cases in Wardle when career long losses were appropriate.
Similarly, insofar as pension loss is concerned, if a Claimant can show that the employer’s contributions were particularly generous, the employee can claim the difference until the date that a fully equivalent job is found.
The EAT also considered the Tribunal’s approach to awarding a 10% uplift for breaches of the ACAS Code, and set out the considerations for a Tribunal in assessing this including distinguishing between a wholesale failure of process, and a case where procedures were adopted but failed to comply with certain provisions of the Code.
This case highlights the importance of calling evidence on the relevant issues, the disadvantages of ever-increasing schedules of loss, and confirms that the EAT will not generally interfere with detailed findings of fact of the Tribunal.
A “Laudable Aim” is not enough to make Positive Action lawful
In Furlong v The Chief Constable of Cheshire Police  UKET, a white heterosexual male succeeded in the first England and Wales case involving the application of s159 EqA, in a claim for direct sex, race and sexual orientation discrimination.
s.159 permits positive discrimination in connection with recruitment and promotion, where this is with the aim of enabling or encouraging those with a protected characteristic to overcome a connected disadvantage, or combatting underrepresentation.
This is subject to the caveat that (1) the person who benefits from the positive discrimination must be as qualified as any competitor; (2) there must not be a policy of positive discrimination, and (3) the positive discrimination must be a proportionate means of achieving the aim.
In Furlong, the Tribunal found that the conditions for positive action had not been met, rendering the positive discrimination unlawful. It had been a fallacy to describe the Claimant and 127 other candidates who had passed initial assessment stages as being of equal merit.
Learning from this case, employers and recruiters should not be discouraged from engaging in positive action, but must do so only when there is a true “tiebreaker” situation.
No Extension of Time where Delay caused by the Unlawful Fees Regime
In Wray v Jewish Care, the EAT upheld an employment judge’s refusal to extend time for unfair dismissal where the limitation period had expired a week before the employment tribunal fees regime was abolished.
At the ET, the Claimant argued that the fees regime made it ‘not reasonably practicable’ for him to present his claims in time. However, he failed to adduce evidence that he did not have the funds available to present a claim. The employment judge therefore could not find that it was not reasonably practicable for the Claimant to present his complaint within the applicable time limit by reason of the fees regime.
The EAT dismissed the appeal on the same grounds relied upon by the employment tribunal but went further. With regards the impact of the fees regime, the EAT rejected the Claimant’s alternative argument that the mere existence of the ‘unconstitutional and unlawful’ fees regime made it not reasonably practicable for him to issue his claim in time – such an assertion was contrary to well established authority.
Employment lawyers have been waiting for this argument to be determined since the abolition of the fees regime. It provides welcome news to employers and ought to deter a large number of out of time claims being lodged.
Updated awards for Injury to Feelings
For claims presented on or after 6 April 2019, the Vento bands will be as follows:
Lower band £900 to £8,800 (less serious cases)
Middle band £8,800 to £26,300 (cases that do not merit an award in the upper band), and
Upper band £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000
Awards by tribunals for ‘injury to feelings’ are on the rise. This is an award of damages aimed to remedy the hurt, humiliation and degradation suffered by the employee. Tribunals have a discretion as to the level of award and accordingly, any appeal against the award will be difficult to mount.