News round up
Welcome to our October bulletin. As Halloween approaches, we have a few treats (not tricks) in store for you!
Firstly, we have a couple of seminars and events coming up. There are still some limited places left for our annual employment law update seminar on 17 October, during which we will discuss topical issues and development such as employment status and the gig economy, as well as important changes due in relation to data protection law.
For the rising stars and those who may be new to HR, or for those simply looking to brush up on their knowledge in an informal setting, our next HR Breakfast Club event is taking place on 9 November. The event will include an interactive workshop from our guest speaker and a recap on the legal framework to help you understand people, drive behaviours and maximise potential and performance.
Please let us know if you would like to join us at these popular events.
Finally, there have been some interesting case law developments over the last month - we’ve distilled down the details and set out what you need to know below, together with our recommended action points.
As ever, if you would like a sounding board or support with any employment law issues or queries, please don’t hesitate to contact your Clarion Employment Team
Important Privacy Ruling
In January 2016, the European Court of Human Rights (ECHR) dismissed a claim by a Romanian individual that his privacy had been breached. However, in a surprise turn of events this ruling has now been changed.
In Barbulescu v Romania  the individual was an Engineer who had been asked to set up a company Yahoo Messenger account for the company’s customers to use to communicate queries and complaints. There was a strict policy within the company that no employee should use the company telephone, fax, photocopier or computer for personal purposes. However, despite this rule the Engineer used the company Yahoo Messenger account to communicate with his brother and girlfriend.
The company’s policy did not state that monitoring of workplace communications and their contents would take place, and nor did the individual’s contract of employment.
The company had circulated a memo to employees as follows:
"Come to work to deal with company and professional matters, and not your own personal problems! Don't spend your time using the internet, the phone or fax machine for matters unconnected to work or your duties. …The employer has a duty to supervise and monitor employees' work and to take punitive measures against anyone at fault! Your misconduct will be carefully monitored and punished!"
However, the memo also did not expressly state that the content of communications would be monitored or reviewed by the company.
The company nevertheless monitored the use of the account, and discovered that the Engineer had used to the Yahoo account to send personal messages – which ran to several pages of interactions. It dismissed the Engineer for breaching the company’s policy. He argued that his right to privacy had been breached, because his employer had accessed his personal messages and he did not know that they were planning to do this.
However, he lost his argument because the ECHR ruled that it was a work account, and it is not unreasonable to expect an employer to monitor a work account. The ECHR was persuaded that the company had examined the Yahoo messages only - other data or documents on the employee’s computer had not been interrogated. The EHCR found that the monitoring had been limited in scope and was therefore proportionate.
There is generally no higher appeal court for cases from the ECHR to be appealed. However, in an unusual situation, there was an appeal to the Grand Chamber of the ECHR about the ECHR’s ruling. The Grand Chamber has agreed (notably, by a majority ruling of 11 to 6 judges) that the incorrect balance had been struck and the Engineer’s right to privacy had in fact been breached, and he will now be awarded compensation.
This is an important ruling, because it gives an insight into what is and is not acceptable monitoring. In this case the Engineer argued successfully did not know that the content of his messages were going to be monitored. If he had known, and the employer had accessed personal messages that he had sent from a work account, it is very unlikely that this would have been ruled to be a breach of privacy.
This case serves as an important reminder that you must tell employees explicitly if you are carrying out any monitoring in the workplace. If you are checking email or internet usage and/or the content of such usage, you must have a company policy which sets out that you are going to do this, and all employees must be made aware of this policy. It will only be in exceptional circumstances (for example, when criminal activities are suspected) that it will be acceptable to monitor without the employee knowing that it is taking place.
- Check your company policies to ensure that existence and scope of any monitoring that you are doing is explained in the policy.
- Make sure that employees are aware of the policy, and have access to it.
- Do not monitor employee activities if the employees do not know that it will or might take place.
- If you think that there are exceptional circumstances which might mean that it is appropriate to monitor employees without them knowing, contact us to discuss the situation before taking any action.
In a redundancy situation, there is no statutory obligation on you to seek volunteers. However, you might have a contractual obligation if you have a redundancy procedure which says that you will always seek volunteers before moving to compulsory redundancies, or you might have an implied contractual term that you will seek volunteers if that is what you always do. If you do have a contractual voluntary redundancy scheme you must adhere to it.
In Lynam and another v Birmingham City Council  the employer announced a voluntary redundancy scheme, which included terms which were more generous than those for compulsory redundancy, and made it applicable to certain groups of employees.
At a later date, a group of employees were told that they could no longer apply for voluntary redundancy. That group had originally been covered by the voluntary redundancy scheme.
A few months later that group of employees were all made compulsorily redundant. They successfully argued that this action was a breach of contract.
It was held that the voluntary redundancy scheme which had been put forward to the employees was contractual. Not following this contractual procedure was an unlawful breach of contract.
- Review any redundancy procedure that you have and check if it states whether or not you will ask for volunteers. If you are not sure whether the procedure is contractual, contact us for advice.
- Consider if you wish to retain a redundancy procedure moving forwards, if you do have one.
- If you are in a redundancy situation, consider if you want to ask for volunteers. If you do, make sure that you are clear about the way that you will select from those who do volunteer.
- If an individual is made redundant after volunteering, the individual is still entitled to a statutory redundancy payment, and counts as one of the number of jobs being made redundant when you determine the length of any collective consultation you must engage with. If you are not sure, contact us for advice.
An individual must not be treated less favourably because they are working on a part-time basis. As a basic level, this means that any pay and benefits for part-time employees must be worked out on a pro-rata basis, depending on the percentage of full time hours that the part-time employee is working. It is important to get these calculations correct otherwise there may be less favourable treatment.
In British Airways plc v Pinaud  there were a number of individuals who worked on a part-time basis as airline crew. They were paid 50% of the full time salary, although they actually worked 53.5% of the full time hours.
The problem had arisen because of the shift pattern. Full-time crew worked a pattern of 6 days on, 3 days off which totalled 243 working days each year.
Part-time crew worked 10 days in every 14 days, which meant that they worked a total of 130 days each year – which was 53.5% of the full time hours.
The part-time employees brought a claim of less favourable treatment in relation to their pay.
The employer argued that the pay discrepancy was compensated for by allowing the part-time crew more choice over the hours that they worked, compared to full-time crew.
However, this argument was firmly rejected. Paying the part-time employees less than the pro-rata equivalent of the full-time pay was treating them less favourably due to their part-time status.
- If you have any part-time employees check their pay and benefits carefully. Are they getting the correct percentage of the pay and benefits offered to full-time employees?
- If there is a benefit that cannot be split on a pro-rata basis (for example, a company car) you must still ensure that the part-time employee is not treated less favourably. Discuss the options with us to address these sorts of problems.
Some bonus schemes can be very complicated, which means that employees are not always clear what bonus they are likely to receive. Not only does this reduce the motivational impact of the bonus scheme, it can also cause some difficulties in ensuring that there is no breach of contract, as shown in the case of Yucetas v Ersan and Co Solicitors Limited .
In this case, the employee received a bonus which related to the money that he earned for the firm. All those who were eligible for the bonus met with the Managing Director and some changes to the calculations were agreed. No discussion took place about paying the bonus if the employee resigned or left the company.
After the meeting, a revised contract was sent to all employees entitled to the bonus which set out the new calculations agreed, and also said that the bonus would be paid in instalments and would not be paid to employees who were working their notice. These last two points had not been covered in the meeting and so the employee did not sign the contract.
Some time later, the Claimant resigned. He was told he would not receive his bonus because he was under notice. He successfully argued that this was a breach of contract.
- If you operate any bonus schemes look through the rules. Do they give you the flexibility that you want?
- If you want to vary a bonus scheme which is contractual you will have to consult with employees and reach agreement on the variations. If you are unsure about this please contact us for advice.
- You cannot unilaterally vary the terms of a contractual bonus scheme as this will be a breach of contract, and in addition the new terms will not be enforceable.
- If you do agree a change of terms in a bonus, or any term of employment, check that the employee signs an agreement to indicate acceptance with the terms.
If an employee requests a change of working pattern this will be a permanent contractual change unless you agree otherwise (for example, agreeing the change for a limited period of time). Changing the working pattern without the employee’s agreement will be a breach of contract.
In Gregory v Royal Mail Group Ltd  the employee worked as a postman, was separated from his wife and had an access arrangement in place in relation to his child. He wanted to have weekends free to see his child. He made a flexible working request to work week days only, and this was agreed.
A restructuring then took place, and all employees were asked to complete a questionnaire to indicate their preferred working pattern. The employee was on leave at the time so his trade union representative completed it for him. Unfortunately, the trade union representative wrongly stated that the employee would be willing to work on Saturdays.
On returning from leave the employee found that he was now working 3 Saturdays a month. He submitted a flexible working request which was rejected, and his appeal against this decision was also rejected.
The employer sought to impose the Saturday working. Notably, the employer had preserved the flexible working arrangement previously in place before the restructure for other employees, but not the Claimant.
The employee therefore resigned, successfully claimed constructive dismissal and was awarded just over £22,000 in compensation.
- Any employee with at least 26 weeks’ service is allowed to make a flexible working request, provided they have not made a similar request in the last 12 months. You must consider the request carefully, only reject it for a valid reason (from one of the reasons prescribed by statute) and you must respond to the employee’s request within 3 months.
- If an employee has been granted flexible working, you cannot change their working pattern back to what it was unless you had specifically agreed that the change was for a limited period of time.
If you have a valid reason for doing so, you can carry out drugs and alcohol testing at work. However, employees must know that this could happen, the testing must be carried out by someone specifically qualified to do it and the person interpreting the results must have the necessary skills.
In Chivas Brothers Ltd v Christiansen  the employee worked for a distiller and distributor of alcoholic drinks, which (as part of their health and safety policy) carried out random drugs/alcohol testing on employees if they thought it was necessary.
The employee in question suffered with depression, which the distiller knew about. He was taking medication for his depression, fell asleep at work and argued that this was because of the medication. However, the employer asked him to take a drugs test and he refused. He was asked again and refused again, and was dismissed.
His claim of unfair dismissal was successful. The employer had conceded that the employee posed no health and safety risk. He had given his employer a valid reason for falling asleep, and supplied medical evidence to support his position. The employer had not had regard to this when considering his refusal to take the drugs test and the medical documentation which the employee had produced had been ignored.
- Only carry out drugs/alcohol testing if you have a valid reason for doing so. Testing is only likely to be justified for those working in safety critical roles.
- Employees must be told that the testing could take place. They need to be told the procedure that will be followed, and how the results will be used.
- Carefully consider whether the employee’s explanations are reasonable and take account of the evidence when considering whether testing is required.
- Make sure that any results of such testing are kept confidential, and are only accessible to those who need to know the results.
- Take medical advice before using the results as a basis for dismissal.