U.K. Employment Law Update: Tribunal Compensation Limits, Duty of Confidentiality and Protected Disclosures

Raising Rates: U.K. Employment Tribunal Compensation Limits and National Minimum Wage 2019

The annual increases in compensation in the Employment Tribunals will take effect on 6 April 2019. The new rates apply where the event giving rise to the compensation (such as the termination of employment) occurs on or after 6 April 2019. The most notable changes are as follows:

• The limit on a week’s pay for the purposes of calculating statutory redundancy payments and the basic award for unfair dismissal will increase from £508 to £525
• The maximum statutory redundancy payment and basic award for unfair dismissal will increase from £15,240 to £15,750
• The maximum compensatory award for unfair dismissal will increase from £83,682 to £86,444
• The maximum total compensation for unfair dismissal (i.e., the aggregate of the maximum basic and compensatory awards) will increase from £98,922 to £102,194

The minimum hourly wages are also due to increase with effect from 1 April 2019 as follows:

• The National Living Wage for those aged 25 and above will increase from £7.83 to £8.21 per hour
• The National Minimum Wage:
  • For those aged 21 to 24 will increase from £7.38 to £7.70 per hour
  • For those aged 18 to 20 will increase from £5.90 to £6.15 per hour
  • For those aged under 18 will increase from £4.20 to £4.35 per hour
  • For apprentices will increase from £3.70 to £3.90 per hour

When Can Public Interest Override a Duty of Confidentiality?

In Linklaters LLP v Frank Mellish [2019] EWHC 177 (QB), the U.K. High Court considered whether the public interest in the role of women in a large law firm justified a breach of an employee’s confidentiality obligations.

Mr Mellish was the Head of Business Development and Marketing at Linklaters. His contract contained an express confidentiality clause which extended beyond the end of his employment and covered information regarding partners and employees of the firm. Shortly after his employment terminated, Mr Mellish informed Linklaters that he planned to give interviews on the firm’s “ongoing struggle … with women in the workplace” and would refer to three specific incidents relating to allegations of sexual harassment raised by female employees. Linklaters applied for an injunction to prevent such disclosure of information.

In granting the injunction, the High Court held that in determining the balance between public interest and a contractual duty of confidentiality the question is whether, in all the circumstances, the breach of confidence is in the public interest. While the Court noted that it may be possible to speak in general terms about workplace culture, an injunction would not be granted if the primary aim of the disclosure is to protect the employer’s reputation. The information which Mr Mellish had intended to disclose was specific and fell within the confidentiality clause. It was also an important factor that the women involved in the incidents had legitimate expectations that this information would remain confidential. In these circumstances, the public interest did not justify Mr Mellish’s intended disclosure.

While this decision will be welcomed by employers, it remains to be seen whether the courts would take a similar approach if the person seeking to breach confidentiality obligations is also the person who raised allegations of harassment.

Whistleblowing: Guidance on What Constitutes a Protected Disclosure

In Mr S Ibrahim v HCA International Ltd UKEAT/0105/18/BA, the Employment Appeal Tribunal (EAT) provided guidance on what constitutes a protected disclosure under U.K. whistleblowing legislation.

Mr Ibrahim was an interpreter at a hospital operated by HCA International (HCA). He complained to HCA about rumours among patients that he had breached patient confidentiality. After investigation, HCA rejected the complaint. When Mr Ibrahim was later dismissed, he unsuccessfully claimed whistleblowing detriment in the Employment Tribunal (ET). Mr Ibrahim appealed to the EAT, specifically against the ET’s finding that his disclosure was not a “qualifying disclosure” for the purposes of whistleblowing legislation because it (i) did not identify a breach of a legal obligation, and (ii) was not made in the public interest.

On the first point, the EAT held that the ET had been wrong to find that Mr Ibrahim’s complaint that false rumours were being made about him did not identify a breach of a legal obligation; it was clear that Mr Ibrahim was alleging that he was being defamed, even though he had not used that term. On the second issue, the EAT found that, at the time he made the disclosure, Mr Ibrahim had not believed it to be in the public interest; rather he had made it to protect his own reputation. Although he later argued that he was concerned about data protection, this was not in his mind at the time he made the disclosure.

Although each case will turn on its facts, it is important to note that while a disclosure made in a worker’s personal interest may also be in the public interest, this must be apparent at the time it is made.