Welcome to our February update.
This month we look at a range of cases concerning topics such as whether employers can snoop into employees’ private emails, rules about speaking English at work, and how to avoid discrimination in the giving of references.
We also welcome back our head of team, Sarah Tahamtani, who has recently returned from maternity leave. It seems that having uninterrupted conversation and a hot drink is still novel to Sarah!
Finally, it seems that you are all keen to change employees’ terms and conditions given your response to our upcoming seminar on the topic! We are now at capacity for this seminar, however if you would like us to run this seminar again at a later date please email email@example.com.
Can you ‘snoop’ into employees’ private emails?
Headlines in the popular press have recently suggested that employers can now access employees’ private emails and social media postings, following a ruling in the European Court of Human Rights. The headlines are rather misleading, so let us look at the case and what the ruling really says.
In the case of Barbulescu v Romania  Barbulescu was an engineer. He was asked by his employer to set up a Yahoo Messenger account to respond to customer queries. He did this, but also used the account to send personal messages to his brother and girlfriend. This was despite there being a clear company rule that no employee was to use the telephone, fax, photocopier or computer for personal means. The account was monitored, and his employer read the personal posts. He was dismissed for breach of company rules.
Barbulescu argued that his employer had breached his right to privacy by reading his personal messages. However, he lost his argument because his employer had simply monitored a work Yahoo Messenger account and had found messages there that Barbulescu should not have been sending. He could not argue that monitoring his work was a breach of his privacy.
This ruling does not mean that you can now access any personal messages that your employee might send. What it does mean is that you can monitor work emails and social media, but you must have a policy in place so that your employees know that this might happen.
It would not be appropriate for you to take action to access an employee’s personal messaging or email account unless you had very good reason for wanting to do so. You would need to take our advice before doing this.
- Review your company policy about the use of company computers and similar equipment. Does it tell your employees whether they can use company equipment to send personal messages? Does it make it clear what could happen if employees breach your rules? Check that your policy gives you the protection that you want.
- Review your company policy about the use of the Company’s internet and email. Have you specified whether employees can send personal emails and use the internet for personal means? Have you specified whether they can engage in personal use during work time? Have you made the penalties for improper use clear?
Using demotion as a punishment
The range of punishments which can be imposed in the workplace is limited, with disciplinary warnings and dismissal being the main options open to employers. However, some employers will consider the use of demotion as an alternative to dismissal. This is possible but as the following case shows there are pitfalls that we need to be aware of.
In the case of British Airways v Higgins  the employee was a Team Leader working in aircraft maintenance. On one occasion he was supervising the work of less experienced employees and identified an error that had occurred with some wiring. He corrected this, but did so wrongly. The employer considered dismissing him, but instead it was decided to demote him by three grades. He resigned and claimed constructive dismissal, arguing that the demotion was a breach of contract.
He was successful in his claim. It was ruled that the demotion of three grades was an over-reaction to the events which had occurred.
- Review your disciplinary procedure. Check whether you have demotion as an option that could be imposed instead of gross misconduct. Without this option it would be difficult to argue that it is fair to impose a demotion.
- If the reason for demotion is that the employee is proving to be incapable in their job discuss the situation with the employee. It is possible that the employee will be relieved to have some of their duties removed, and it might be that a solution can be achieved through mutual agreement rather than being imposed. If this is achieved ensure that you get the employee’s agreement to the demotion in writing.
Speaking English in the workplace
In our multi-cultural society it is not unusual to have employees with a range of different native languages. To what extent can you insist that an employee speaks English whilst they are working?
In Kelly v Covance Laboratories Ltd  the employee was Russian. She was working in a laboratory where animal testing took place and soon after starting work she began to spend a lot of time on the phone speaking in Russian. Her manager was concerned because the organisation had been infiltrated by animal rights activists in the past. As her manager could not tell what she was saying there were concerns that she might also be an activist. She was instructed, therefore, to speak only English whilst working so that her manager could understand what she was saying.
There were also concerns about her performance, and she was moved onto a capability process. The employer then discovered that she had a past criminal conviction for benefit fraud which she had not disclosed, and told her that there would be a disciplinary hearing. She resigned and claimed race discrimination.
She was unsuccessful in her claim. She could not show that by being asked to speak English, she had been treated less favourably than any other employee would be treated in her situation. She also argued that she had been subjected to harassment because requiring her to speak English violated her dignity, but she was unsuccessful in this argument as well.
It is important to note that the employee was being asked to speak English during working time to help ensure the smooth running of the operations. It is less likely that it would be reasonable to insist that an employee spoke English during break times.
- If you do have employees with a variety of native languages ensure that you have a clear policy on what language should be spoken in the workplace.
- If you are going to insist that English is spoken be sure that the reason is for the efficient operation of your organisation.
Dismissal for an accumulation of reasons
Leading on from the question of whether an employee can be demoted instead of dismissed, another question that has bothered the courts recently is whether a series of incidents can be added together to amount to gross misconduct.
In Ham v The Governing Body of Beardwood Humanities College  the employee, who was Head of Science at the College, was dismissed for a number of different issues. The employer argued that when they were added together they amounted to gross misconduct. However, the employee argued that this was unfair.
The Employment Appeal Tribunal ruled that the issue here was not whether the incidents added together to amount to gross misconduct, but whether the overall pattern of behaviour was sufficient reason to dismiss. The case was sent back to the Employment Tribunal to apply this approach, and they found that the pattern of behaviour did amount to gross misconduct, and hence the dismissal was fair although it was at the far extreme of the ‘range of reasonable responses’ for dismissal.
Care needs to be taken when interpreting this ruling. It does not mean that we can let an employee continue with an unacceptable pattern of behaviour, let it build up and then dismiss. There were some specific points in this case which need noting:
- The employee did not argue that it was unfair to dismiss her because she had not received any warnings. As she did not argue this the Tribunal did not focus on this point.
- The employer argued that giving warnings would have made no difference because the trust and confidence between it and the employee had broken down.
It is this last point that is particularly important. The pattern of behaviour had led to a breakdown of trust and confidence and hence the employer concluded that dismissal was the only option.
- If an employee’s behaviour is unacceptable you should always address the situation with disciplinary warnings in the first instance.
- If the employment relationship has completely broken down it could be argued that disciplinary warnings are not appropriate and the pattern of behaviour amounts to gross misconduct. However, this will be a rare conclusion and you should always seek our advice before relying on this.
Take care when giving and receiving references
Many employers express their reluctance to give a reference in case they are challenged about the contents of what they write. If a reference is taken, or received, it is important to ensure that it is not discriminatory in any way.
In Pnaiser v NHS England and another  the employee was disabled. She worked for Coventry City Council and had been absent for significant periods of time. She was made redundant and the wording of a reference was agreed as part of a settlement agreement. When she then applied for a job with the NHS the agreed reference was sent, along with a note that the NHS could contact the Council if they wanted more information.
The NHS made contact, and a manager at the Council expressed the opinion that the employee would not be able to do the NHS job due to the responsibilities involved and her disability. The NHS’s offer of employment was subsequently withdrawn and the employee successfully claimed disability discrimination against the NHS and the Council.
- If the wording of a reference is agreed as part of a settlement agreement you must keep to that wording and not alter it in any way.
- If you receive a reference and the previous employer expresses concerns relating to the employee’s disability you must consider if there are any reasonable adjustments you could make to assist the employee to take up the role that has been offered.
When does discrimination end?
If an individual wants to bring a claim of discrimination to the Employment Tribunal it must be brought within three months of the last occurrence of the discrimination. This was made clear in the recent case of Fenn t/a Powercutz v Schreeve .
The employee worked as a barber and was dyslexic. Her dyslexia was sufficient to be a disability under the Equality Act 2010. Her employers continually teased her about her dyslexia, and this teasing sometimes took place in front of customers. She was absent due to stress, then returned to work. When she returned she was dismissed for gross misconduct, although her employers were not able to give a reason for this decision.
She claimed disability discrimination, but the employer argued that her claim was out of time. They argued that the last instance of disability discrimination occurred before she became absent due to stress. She argued that the last instance of discrimination was her dismissal. She was successful. There was no fair reason given for her dismissal, and hence it was reasonable to conclude that the decision to dismiss was related to her disability. The last discriminatory act, therefore, was her dismissal and her claim was made within three months of this occurring.
- If you receive a claim of discrimination against you identify the last time that the alleged discrimination occurred, this isn’t always as obvious as it might appear so if you have any doubts ask us.
- The claim must be within three months of the last instance of discrimination for it to proceed in the Employment Tribunal.
The Bribery Act 2010 is an important piece of legislation, but is not one that we hear a lot about. However, there has been a recent case where an employee was dismissed for accepting a bribe, and this was found to be a fair dismissal. It seems an opportune time, therefore, to look again at what the law says about bribery.
In the case of Blake v Home Office  an Immigration Officer accepted a bribe, thought to be around £200, from an immigration offender. She returned the money and reported the bribe. However, she was dismissed for gross misconduct for not reporting the bribe immediately. The dismissal was found to be fair because her actions were a breach of the Bribery Act 2010. What are the requirements of the Act?
Under the Bribery Act 2010 there are four possible offences:
- Bribing another person – which is offering, promising or giving a reward to someone to induce them to act improperly.
- Being bribed – which is accepting, requesting or agreeing to accept a reward in return for improper actions.
- Bribing a foreign public official.
- Failure to prevent bribery – when an organisation does not stop individuals who are operating on its behalf from being involved in bribery.
You should ensure that you have an anti-bribery policy, and also ensure that you have a named person in your organisation to whom allegations of bribery are reported. If you need any assistance in putting a policy together, please do not hesitate to contact us.