Employment law
...the application of the cap to the compensation sum was clearly unfavourable
connection between the employee’s position and his conduct to give rise to vicarious liability. Morrisons appealed the decision, contending that the employee had not carried out the wrongful acts during the course of his employment. The Court of Appeal, referring to the Bellman judgement, highlighted that vicarious liability is not restricted to acts which occur when the employee is ‘on the job’. As a result, they determined that the act of sending employee data to a third party was within the field of activities assigned to the employee. They also found that vicarious liability could be established in acts of deliberate wrongdoing; therefore, it was irrelevant what the motive of the person doing the wrongdoing was, and to whom they were trying to cause harm. Morrisons appealed against this decision to the Supreme Court, which upheld the appeal. The Court explained that there had been misunderstandings since the Mohamed ruling, outlining that the origins of the doctrine of vicarious liability were acts that could be fairly regarded as done by an employee in the course of their employment. Unlike what the Court of Appeal had concluded, motivation was important in this case as it determined whether the employee had been acting on his own or for Morrisons’ business. Although there was a temporal link between the employee’s role and his actions, this did not in itself give rise to vicarious liability. His employment had given him the opportunity to commit this act, but he had done so due to his own personal vendetta. The disclosure of this data had also not formed part of his usual duties. This case suggests that though organisations will not always be held liable for the acts of employees under the doctrine of vicarious liability, this
will be very fact specific. Whilst the specific motivation of the employee was considered important here, this may not always be the case. Chief Constable of Gwent Police v Parsons and Roberts In this case, the EAT ruled that two officers suffered discrimination after a compensation payment, provided as part of a voluntary exit scheme, was capped due to their receiving deferred pensions. The Equality Act 2010 outlines that it is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, this disability. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. The claimants in this case were both disabled police officers who had achieved 23 and 18 years of service, respectively. Due to their disability, the officers were given H1 certificates, which under the Police Pensions Regulations enabled them to have immediate access to their pensions upon leaving the force. The H1 certificates placed them at an advantage as, ordinarily, officers needed to either have 25 years of service or have reached the age of 55 to claim their pension. For those who left the service and did not fall into this category, but had at least five years of service, they were able to receive a deferred pension payable on the date they later retired. As part of austerity measures, a separate voluntary exit scheme had been introduced in 2015, which allowed authorities to pay a compensation lump sum to officers who
left the force voluntarily. However, if the officer met the qualifications to claim their pension, this amount was capped at six month’s pay. The two officers applied to leave their roles through the exit scheme but, as they could claim their pensions through their H1 certificates, found that their compensation sum was capped. They later brought a claim to the ET for discrimination arising from a disability, arguing that the cap had been placed in consequence of their disability. In upholding the claim, the ET explained that the application of the cap to the compensation sum was clearly unfavourable. Although the organisation argued that the overall amount of money the officers received would have been a ‘windfall’ when combining their pension and compensation sum, the ET outlined that it was not necessary to take into account the deferred pension. This was because both sums of money were different, and provided for different reasons. The ET went on to outline that the unfavourable treatment had arisen due to the claimants previously being issued H1 certificates as a result of their disability. In considering whether this treatment was justifiable, the ET considered but rejected the organisation’s argument that the cap was implemented as a way of managing police funds. The chief constable of the police force appealed but the EAT dismissed this, holding that although the organisation could potentially have justified placing the cap it would need to have established that a ‘windfall’ was to take place. There was no evidence presented that the claimants would have received more from the compensation sum than they would have got had they remained in employment until retirement. In situations where an employee could potentially receive a large sum of money from various areas due to their circumstances, placing a cap on this amount can be justifiable. That said, the onus will always be on organisations to demonstrate that the cap was necessary. n
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| Professional in Payroll, Pensions and Reward |
Issue 61 | June 2020
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