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News Update

October 2017

An ET finds that a director’s comment to a 59-year-old employee that she would be “better suited to a traditional estate agency” amounted to direct age discrimination and harassment related to age.

An ET rejects Addison Lee’s argument that each of their drivers ran a small business, regarding AL as a client; the drivers were in fact workers delivering a service personally to AL according to AL’s requirements.

The High Court holds that an employee can have no reasonable privacy expectation for a personal document saved to his folder on the employer's server.

A TUC poll of over 1000 BAME workers, which is part of a major new TUC report on racism at work, has found that 37% have been bullied, abused or singled out for unfair treatment.

Telling 59-year-old she was better suited to a ‘traditional’ agency was age discrimination

In Gomes v 1. Winkworth Estate Agents 2. Gold, Gomes (G), aged 59 was an administrative assistant. Gold, a director, queried errors in a letter G had typed. He said: “This marriage isn’t working”, that G would be “better suited to a traditional estate agency” and that G should “sleep on it and decide what she wanted to do”. She understood Gold to be saying it was time to leave. After unsuccessfully lodging a grievance, G resigned. An ET upheld G’ direct age discrimination claim, as the words, “better suited to a traditional estate agency”, was a reference to G’ age and the “traditional” comment would not have been said to a younger assistant. The ET also found that the comment amounted to harassment related to age because although Gold may not have intended to violate G’s dignity, that was the effect. G had also been constructively dismissed, as all the comments taken together made her feel unwanted and her grievance had not been conducted independently and fairly.

ET finds that a group of drivers are ‘workers’ and not self-employed contractors

In Lange and others v Addison Lee, Leigh Day, who represented the Claimants, have confirmed that an ET has ruled that a group of Addison Lee (AL) drivers were not self-employed, as AL argued, but are workers who satisfied the definition as set out in S.230(3)(b) of the Employment Rights Act 1996 and the related provisions of the Working Time Regulations 1998 and the National Minimum Wage Act 1998. As workers, they are entitled to all workers’ rights as defined by the relevant pieces of legislation, e.g. paid holiday, the NMW, etc., and are entitled to be paid for the period of time when they are logged on to AL’s internal driver’s portal system. The ET rejected AL’s argument that the reality of the relationship was that each driver ran a small business and regarded AL as a client. The facts all pointed towards the drivers delivering a service personally to AL when they were logged on and delivering the service in accordance with AL’s requirements, policies and systems.

No reasonable privacy expectation for personal document saved to folder on employer's server

In Simpkin v The Berkeley Group Holdings PLC, the High Court held that an employee can have no reasonable privacy expectation for a personal document saved to his folder on the employer's server. The reasons were as follows: (i) Simpkin (S) had signed the company's IT policy which made it clear that emails sent and received on its IT system were the employer’s property; (ii) his employment contract stated that his emails were subject to monitoring without his consent; (iii) the document was created in the course of S’s employment while he was at the employer’s office; and, (iv) S saved the document to his folder on one of the employer’s central servers.

TUC poll shows 1 in 3 BAME workers treated unfairly

A TUC poll of over 1000 BAME workers, which is part of a major new TUC report on racism at work, has found that 37% have been bullied, abused or singled out for unfair treatment. The poll also reveals that 47% were verbally abused because of their race, 42% of those bullied or harassed say their direct manager was the main perpetrator, 20% reported the bullying and felt their complaint was dealt with properly and 16% said they were treated less well after making a complaint. 19% have experienced discrimination such as being denied training or promotion. The TUC highlight that racist abuse suffered by workers also comes from members of the public.


This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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