The High Court has recently considered the approach to assessing "licence fee damages" in a claim against two former employees of Marathon Asset Management, James Seddon and Luke Bridgeman, who breached their duties of confidence by unlawfully removing approximately 40,000 documents when they resigned to set up a competing business: Marathon Asset Management LLP and another v Seddon and another  EWHC 300 (Comm).
This decision is part of a suite of related claims against Jeremy Hosking (one of Marathon's founding partners), Mr Seddon and Mr Bridgeman in which a series of serious breaches of duty has been established and collectively resulted in the payment of significant amounts to Marathon (see also Hosking v Marathon Asset Management LLP  EWHC 2418 (Ch)).
HR practitioners know only too well what an effective weapon a subject access request (SAR) can be in the hands of an aggrieved employee or ex-employee. Even if no 'smoking gun' is unearthed for the purposes of litigation, at the very least it will consume substantial amounts of the employer's time and money. The burden for employers has been exacerbated by uncertainty over the precise scope of their obligations.
The greater clarity provided by the Court of Appeal in the recent judgments of Deer v University of Oxford, heard together with Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd, and Dawson-Damer v Taylor Wessing LLP will therefore be welcome. There is also some (limited) good news for employers as to the lengths to which they must go in searching for data although, on the downside, the rulings also lay to rest the possibility of refusing to comply with a SAR simply because its purpose is to aid litigation.
The cases provide useful guidance for employers facing SARs, and the facts and decisions are discussed in more detail in our briefing here. The key practical points for employers responding to a SAR are summarised below:
The Chinese government recently issued three sets of measures to strengthen labour law enforcement in China. These measures are aimed at cracking down on material violations of labour laws and regulations and improving compliance by employers. Companies need to pay close attention to their employment activities and rectify non-compliance practices in a timely manner.
The Supreme Court yesterday refused British Gas permission to appeal the Court of Appeal ruling that statutory holiday pay must include results-based commission (Lock v British Gas Trading).
This provides employers with final confirmation that the calculation of pay for the first 4 weeks of statutory holiday must include an amount in respect of results-based commission, as well as non-guaranteed compulsory overtime and most likely voluntary overtime too (although as yet the latter has only been decided at first instance). The Working Time Regulations must be read purposively to implement EU law to this effect. In terms of the reference period for averaging pay including results-based commission, the parties in this case accepted that the provisions in the Employment Rights Act 1996 averaging pay over a 12 week period should apply.
Although a hard Brexit would enable the Government to change this rule in the future, the Prime Minister's commitment to maintaining workers' rights makes this unlikely in the short term.
The independent Baroness McGregor-Smith Review into race in the workplace was published on 28 February 2017. It sets out evidence that people from BME backgrounds are still being held back in the workplace and has urged businesses with more than 50 employees to:
- publish a breakdown of their workforce by race and pay band, on their website and in the annual report
- draw up five-year aspirational diversity targets and measure progress annually
- nominate a board member to deliver on these targets.
The UK Modern Slavery Act 2015 (Act) requires certain businesses to prepare and publish a slavery and trafficking statement for each financial year from the year ending 31 March 2016.
This may impact organisations in Asia where, for example, the business activities of a subsidiary form part of the supply chain of a UK business or where organisations are striving towards eradicating human rights abuses in their business and supply chains. Is your company compliant?
As a general rule, employees bringing a claim for damages against their employer will need to demonstrate that they have suffered financial loss as a result of the alleged wrongdoing. In some cases, however, an employee may also be able to obtain damages for injury to feelings and/or exemplary damages, for example, in relation to claims of unlawful discrimination or harassment or a civil claim brought under section 66 of the Personal Data (Privacy) Ordinance.
In the recent decision of Yip Shui Kwong v Legend World Asia Group Ltd, the District Court has provided a useful discussion of the principles that a court will consider when assessing damages for injury to feelings or exemplary damages. While this case did not arise in the employment context, these principles are equally applicable to claims by an employee against their employer.
Employment contracts often provide that employees may be dismissed without notice or payment in lieu of notice for 'serious misconduct'. However, what constitutes 'serious misconduct' is not always clear. The recent decision of the Court of Appeal of Singapore in Phosagro Asia Pte Ltd v Piattchanine  SGCA 61 provides some clarification on this question.
The online register of employment tribunal judgments announced last summer is now live. The online service covers judgments in both England and Wales and Scotland and will include all new decisions in addition to some transcripts going back to 2015.
The House of Commons Petitions Committee and the Women and Equalities Committee have published a joint report calling for more effective remedies against employers who require female staff to wear high heels at work, and for Acas guidance on dress codes to be improved. Parliament is due to debate the issue in March, and the Government is expected to publish its response to the report within two months.