Each year, 95,000 premature or sick babies are born in the UK. This guidance contains important information for employees and employers on practical issues that can arise when an employee’s baby is born preterm or is born full-term but is unwell, and suggests ways in which employers can support employees in these difficult circumstances. See http://www.acas.org.uk/index.aspx?articleid=6049.
In the long-running case of Bărbulescu v Romania, the European Court of Human Rights (ECHR) looked at an employer’s right to examine an employee’s use of office computers for sending personal communications during working hours, in breach of the employer’s internal regulations, and ruled that the monitoring of the electronic communications was reasonable and an acceptable means of ensuring compliance with the rules. That decision has now been overturned by the Grand Chamber of the ECHR.
The case concerned a Romanian man, Mr Bărbulescu, who was employed by a private company as an engineer in charge of sales and, at his employer’s request, had created a Yahoo! Messenger account for the sole purpose of responding to clients’ enquiries. He was aware of his employer’s policy forbidding the use of any office equipment for personal communications and employees had been warned that use of company resources for personal purposes was prohibited after the dismissal of a colleague for breaching the rule.
On 13 July 2007, Mr Bărbulescu was informed that his Yahoo! Messenger account had been monitored and the discovery made that it had been used for private correspondence. He replied in writing that he had only used the account for professional purposes.
His employer then presented him with a 45-page transcript of messages he had sent and received between 5 and 13 July, including all those he had exchanged with his fiancée and brother. Mr Bărbulescu was subsequently dismissed.
He argued without success before the courts in Romania that the monitoring of the account breached domestic law and amounted to a breach of his right to respect for privacy, enshrined in Article 8 of the European Convention on Human Rights.
In rejecting his arguments on appeal, the ECHR found that it was not unreasonable for an employer to verify that workers were devoting themselves to their professional tasks during working hours. Monitoring the account was, in practice, the only means of ensuring Mr Bărbulescu’s compliance with the employer’s explicit policy. No mention had been made during the proceedings of any of the contents of the personal communications, nor was the identity of the recipients made known.
In the ECHR’s view, the level of monitoring was limited in scope and proportionate, and there was nothing to indicate that the Romanian courts had failed to strike a fair balance between Mr Bărbulescu’s right to respect for his private life and his employer’s interests.
Mr Bărbulescu appealed to the Grand Chamber of the ECHR, where the matter was considered by 17 judges, which held by a majority of 11 to six that there had been a violation of Article 8 of the Convention.
The Grand Chamber observed that the domestic courts had failed to determine, in particular, whether Mr Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored. Nor was account taken of the fact that he had not been told of the extent or the nature of the monitoring, or of the degree of intrusion into his private life and correspondence. Furthermore, they had failed to determine if there were specific reasons to justify the introduction of the monitoring, whether Mr Bărbulescu’s employer could have used measures that involved less intrusion into his private life and correspondence or whether there were safeguards in place to ensure that his communications could not be accessed by his employer without him being notified in advance of that eventuality.
In the light of these findings, the Grand Chamber found that the Romanian courts had failed to protect Mr Bărbulescu’s right to respect for his private life and correspondence and had consequently failed to strike a fair balance between his interests and those of his employer.
Says Damian McCarthy , “Where there is a ban on employees sending personal emails etc., employers should have a written policy making this clear and warning that monitoring may take place. Checks should be carried out in a proportionate manner, and only when there is a clear business reason for doing so. We can assist you in drawing up a policy tailored to the needs of your business.”
Guidance published by the Information Commissioner’s Office, ‘The Employment Practices Code’, contains specific advice on compliance with UK legislation on monitoring electronic communications. This can be found at https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf.
New Guidance From Acas
In a warning to employers that just one discriminatory comment can have dire consequences, the Court of Appeal has upheld a six-figure compensation award to a secretary whose line manager told her that women take things more emotionally than men (BAE Systems (Operations) Limited v Konczak).
Marion Konczak began working for BAE Systems (Operations) Limited as a secretary in 1998 and was made a permanent member of staff the following year. She had complained of bullying and sexual harassment by members of her team but felt that her complaints were not being taken seriously. On 26 April 2006, after a tearful meeting with her manager, he informed her that men tend to forget things and move on more easily than women.
Mrs Konczak was absent the next day and was certified by her GP as unfit to work on account of work-related stress. She never returned to her job after that and was eventually dismissed in July 2007.
An Employment Tribunal (ET) subsequently upheld her sex discrimination claim in respect of the manager’s comment. Her complaints of unfair dismissal and victimisation were also upheld and she was awarded total damages of £360,179. That decision was later upheld by the Employment Appeal Tribunal.
In challenging the award, the company pointed out that Mrs Konczak had made 15 other, unsuccessful complaints of sex discrimination and contended that the award in respect of a single sexist comment was grossly excessive and an affront to justice. In the course of her work she had experienced numerous other adverse and stressful events that might have contributed to her illness and there was also said to be evidence that she suffered from a diagnosable mental illness even before the comment was made.
The Court accepted that the manager’s comment appeared to have been made in a clumsy attempt to express sympathy with Mrs Konczak. The ET’s finding that the words he spoke were the final straw that pushed her over the edge into mental illness may possibly have been over-generous.
However, in dismissing BAE Systems’ appeal, the Court rejected arguments that that conclusion was perverse. There was nothing inherently unjust in the ET applying the basic rule that a defendant must take the claimant as he finds them, ‘eggshell skull’ or vulnerable personality included, and having a vulnerable personality should not result in any reduction in the amount of compensation payable. The evidence was that Mrs Konczak had not consulted her doctor about her mental health at any point in the two years prior to 26 April 2006. The ET had accepted the evidence that it was the comment made by her manager that had pushed her over the edge into a diagnosable mental illness, as it was entitled to do.
The Court also noted that Mrs Konczak had suffered from mental ill-health throughout the proceedings, which had involved a total of eight tribunal hearings and lasted almost a decade.
A sexist remark of the type that was made in this case can be just as detrimental to an employee as overt harassment and discrimination. It is therefore important to take seriously any complaints made by employees and to train managers and supervisors to improve awareness of what constitutes ‘low-intensity’ sexism. Contact Damian McCarthy for advice on any discrimination law matter.
Equal Pay – Can You Compare One Type of Job With Another?
For the purposes of equal pay legislation, can workers doing one job compare themselves with others performing an entirely different task when both are paid from a single source? In an important decision, the Employment Appeal Tribunal (EAT) has ruled that the answer to that question is ‘yes’ (Asda Stores Limited v Brierley and Others).
The case concerned about 7,000 Asda retail workers, nearly all of them women, who argued that they performed work of equal value to depot-based workers, most of them men, who worked for the same employer. The depot workers, who, unlike their retail colleagues, had the benefit of established union representation and collective bargaining agreements, were paid a higher salary. An Employment Tribunal (ET) found that the retail workers could compare themselves with the depot workers for the purposes of the former’s equal pay claims.
In rejecting Asda’s challenge to that ruling, the EAT found that the better view of the law was that Article 157 of the Treaty on the Functioning of the European Union conferred an unconditional right to equal pay both on those who carry out like work and on those who perform work of equal value. Although that issue was not entirely clear, the EAT found that it was clear enough and there was no need to refer the matter to the Court of Justice of the European Union for resolution.
The EAT also found that the fact that the retail and depot workers had their pay and conditions determined by a single source – the Executive Board was responsible for differences in pay and could, subject to the overarching control of Asda’s parent company Wal-Mart, have corrected any pay inequality – was sufficient to permit a comparison to be made. Asda’s argument that there must also be a single establishment, collective agreement or statutory framework was rejected. The better view of the law was that the comparison could be made using the established hypothetical test which enables comparisons to be made between workers who do not and never would work in the same location.
The EAT granted Asda permission to appeal to the Court of Appeal.
Says Damain, “Whilst annual reporting on the difference in pay between male and female workers is mandatory for public sector employers and for private and voluntary sector employers with 250 or more employees, all employers who have not already done so are advised to carry out a gender pay audit in order to ensure that any unjustifiable inequalities between the pay of men and women are remedied so as to reduce the risk of equal pay claims in the future.”
The wording of contracts is the first port of call for judges who are asked to interpret them – but context matters too. The Court of Appeal made that point in resolving a long-running dispute that arose from the closure of a packaging factory and the loss of over 100 jobs.
The factory’s demise was marked by bitter dispute between the company that owned it, its employees and their trade union. Four workers were summarily dismissed after occupying the premises and the union ran a high-profile campaign which generated much damaging publicity for the company. After the factory ultimately closed, all 109 remaining employees were made redundant.
Following negotiations between the company and the union, a settlement was finally agreed, one of the terms of which was that the employees would receive ’90 days’ gross pay’. However, a dispute arose thereafter as to the correct interpretation of that phrase. The union argued that the sums payable should be worked out by calculating the average gross daily pay of each worker and multiplying that figure by 90. The company argued that the phrase referred to 90 days on the calendar, an approach that resulted in a less generous outcome for the employees.
Following a hearing, a judge preferred the union’s reading of the phrase. The Court, however, took the opposite view and allowed the company’s appeal. It noted that its task was simply to ask what the phrase meant in the context of the facts known to both the union and the company. When that holistic approach was taken, it was clear than an objective reader would have naturally understood that the mutual intention was to employ the calendar method of calculating the 90 days.
There have been a number of recent cases looking at the precise nature of the employment status of those working for employers who like their operatives to appear to clients as their representatives but who operate a model of self-employment.
In February this year, the Court of Appeal dismissed an appeal by Pimlico Plumbers Limited against a finding that the claimant’s relationship with the company was that of a worker rather than that between an independent contractor and his client (Pimlico Plumbers Limited and Another v Smith). It has now been reported that the Supreme Court has granted Pimlico Plumbers leave to appeal against that decision.
Contact us if you would like advice on any of the issues raised in this bulletin or on any other employment law matter.
We recently reported on the decision of the Employment Appeal Tribunal (EAT) in Bear Scotland Limited and Others v Fulton and Others that Article 7 of the EU Working Time Directive (WTD) should be interpreted so that payments for overtime which employees are required to work but which their employer is not obliged to offer them do count as ‘normal remuneration’ for the purposes of calculating holiday pay in respect of annual leave taken under Regulation 13 of the Working Time Regulations 1998 (WTR). Specifically, this should include ‘non-guaranteed’ overtime that is routinely worked.
In a further case on this subject, the EAT was asked to rule on whether voluntary overtime that is worked on a regular basis should also be included as normal remuneration when calculating holiday pay (Dudley Metropolitan Borough Council v Willetts and Others).
The claim was brought by 56 employees who work for Dudley Metropolitan Borough Council in a number of different roles – as electricians, plumbers, roofers, storemen, operations officers and ‘quick response operatives’. Each employee has set contractual hours, which represent their normal working hours, but they can also volunteer to carry out additional duties that their contracts of employment do not require them to perform. They can suit themselves as to whether or not they are included on the rotas ‘day by day, week by week, month by month or permanently’. The employees claimed that their holiday pay should include out-of-hours standby pay, call-out allowance, voluntary overtime and mileage or travel allowance relating to the additional hours worked.
The Council argued that for a payment to count as normal remuneration, there must be an intrinsic link between it and the performance of tasks that the worker is required to carry out under their contract of employment. The EAT rejected that argument however. Certainly, where there is an intrinsic link between the payment and the performance of tasks required under the contract, it should be included within normal remuneration. However, in the EAT’s view, the absence of such a link would not automatically exclude such a payment from counting. It held that where the pattern of work, though voluntary, extends for a sufficient period of time on a regular and/or recurring basis to justify the description ‘normal’, it is for the fact-finding tribunal to determine whether the work is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.
In this case, the EAT was satisfied that even if the intrinsic link test were required, the voluntary overtime payments would satisfy that requirement and count as normal remuneration. The arrangements would not exist without the contracts of employment and the tasks performed were those required of the employees under those contracts, even if there was a separate agreement.
Furthermore, EU law requires that normal (not contractual) remuneration must be paid in respect of the four-week period of annual leave guaranteed by Article 7. That overarching principle means that the holiday pay should ‘correspond to the normal remuneration received by the worker’ when at work in order to ensure that they do not suffer a financial disadvantage by taking leave, which might deter them from exercising this important right.
Employers are reminded that the decision only applies to the 20 days’ annual leave entitlement guaranteed under the WTD, not the additional eight days’ entitlement granted under Regulation 13A of the WTR. Whether or not it is practical to differentiate between the two is a decision for the individual employer.
If you have employees whose pay regularly includes overtime worked in addition to the normal working hours stated in their contract of employment, we can advise you of your obligations as regards the calculation of holiday pay. Contact Damian on 020 82636080 for advice on your
Companies generally bear legal liability for misdeeds committed by their employees in the context of their work, but does the same apply to self-employed contractors? The High Court tackled that issue in a group action concerning bank workers who claimed to have been sexually abused by a doctor in the course of pre-employment health checks (Various Claimants v Barclays Bank plc).
Under an agreement with the bank, the doctor had carried out medical assessments and examinations on prospective employees, the majority of them young women, between 1968 and 1984. He has since died, but 126 of those whom he had examined launched proceedings against the bank on the basis that he had subjected them to sexual assaults.
The bank pointed out that he was an independent contractor who had carried out the examinations at his own surgery. In ruling that the bank bore indirect – vicarious – responsibility for his actions, however, the Court noted that his alleged victims had been required to undergo the examinations prior to taking up their posts.
Although the bank was an innocent party, it had created the relevant risk when it referred its prospective employees to the doctor, and the alleged sexual assaults were inextricably interwoven with the work that the doctor had done for the bank’s benefit. The Court acknowledged that had the claims been made earlier, the doctor and his estate could have had the financial means to meet them. In the circumstances, however, taking action against the bank was the only realistic means by which the alleged victims could obtain compensation and the Court was of the view that it was fair, just and reasonable for their cases to proceed.
The decision that vicarious liability did extend to the independent contractor in these circumstances will be a matter of disquiet to those who contract with others to perform a similar function. If you are concerned at the effect this ruling could have on you contact Damian on 020 82636080 for advice on your individual circumstances.
Under Part 21 of the Civil Procedure Rules, it is possible for a person who lacks capacity to be represented in court by a litigation friend so that they can have proper access to justice. In a landmark decision that is of general public importance (Jhuti v Royal Mail Group Limited), the Employment Appeal Tribunal (EAT) has ruled that the right should be extended to proceedings before an Employment Tribunal (ET).
Ms Jhuti had succeeded in automatic unfair dismissal and whistleblowing claims against her former employer, Royal Mail. There was medical evidence that she suffered from post-traumatic stress disorder and a moderate depressive illness, triggered by traumatic experiences that she had endured during her employment.
A further hearing was due to take place before an ET at which the amount of her compensation would be assessed. However, her lawyers argued that, due to her psychiatric problems, she lacked the capacity to conduct the proceedings. The ET, however, refused to appoint a litigation friend on the basis that it was bound by the EAT’s decision in Johnson v Edwardian International Hotels Limited and had no power to do so. Concerned that Ms Jhuti did not have the mental capacity to instruct them, her solicitors submitted an application for reconsideration, but this too was turned down. A month later, a doctor’s report concluded that Ms Jhuti lacked capacity to pursue her claim.
In allowing an appeal against the ET’s decision, the EAT noted that neither the Employment Tribunals Act 1996 nor the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 conferred any express power to appoint a litigation friend and recognised that ETs are creatures of statute and can exercise only those powers that are conferred on them by Parliament. However, the EAT found that the 2013 Rules are wide enough, when read and interpreted in accordance with the common law duty of fairness and/or the strong interpretive obligation under Section 3 of the Human Rights Act 1998 (HRA), to permit ETs to use their case management powers to appoint a litigation friend where a person lacks the capacity to conduct ET proceedings themselves. Otherwise, a litigant who lacks capacity would have no means of accessing justice or achieving a remedy for a legal wrong.
In deciding not to follow the decision in Johnson, the EAT was satisfied that the facts and the issues here were very different from those in the earlier case. Unlike the present case, there was no evidence in that case to justify a finding of incapacity. Furthermore, Johnson was decided under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which are significantly more prescriptive than the 2013 Rules. It is not apparent that arguments based on the need to deal with parties on an equal footing were addressed in Johnson, nor was any reference made to the common law duty of fairness or the interpretive obligation in Section 3 HRA.
The case was remitted to the same ET for a litigation friend to be appointed.
Because the case raised novel issues of general public importance, the EAT took into account written representations from the Law Society and the Secretary of State for Business, Energy and Industrial Strategy in reaching its decision.
When distinguishing between employees, workers and self-employed contractors, bargaining positions can provide a useful litmus test. That was certainly so in a further case on this topic in which an Employment Tribunal (ET) found that a bicycle courier was a worker, within the meaning of the Working Time Regulations 1998, notwithstanding that his contract specifically stated that he was not (Gascoigne v Addison Lee Limited).
Mr Gascoigne worked for Addison Lee Limited, which provides a variety of transport services and has thousands of operatives. His contract stated that he was an independent contractor and that nothing in the agreement should render him an employee, worker, agent or partner of the company. He was forbidden to hold himself out as such and the contract required him to indemnify the company against costs arising from any employment-related claim.
In finding that he was nevertheless a worker – and thus entitled to holiday pay and other benefits – the ET noted that Mr Gascoigne had no choice as to the terms of the contract, which he knew he had to sign in order to carry on working for the company. It was probable that he did not read the contract, the terms of which were inconsistent with the wording of the company’s website which, amongst other things, referred to its operatives as ‘our team’.
Although Mr Gascoigne was paid a piece rate for each completed delivery and provided his own push bike, he was required to carry a company ID when working and to wear a T-shirt and carry a bag bearing the company’s logo. Working under the direction of a controller, he was not running his own business and performed his work personally and not because the company was his client or customer. In the circumstances, his claim in respect of two weeks’ holiday pay was upheld.
The recent Taylor Review of Modern Employment Practices recommended that the status of worker – i.e. those who are eligible for worker rights but who are not employees – should be retained but renamed ‘dependent contractor’, with a clearer distinction drawn between the rights of employees, dependent contractors and those who are legitimately self-employed.
The report also recommended that for employment rights claims that are dependent on an individual’s employment status, claimants should be able to obtain an authoritative determination of their status at an expedited preliminary ET hearing, without having to pay a fee. However, the Supreme Court has since ruled that ET fees are illegal, which could result in an increase in claims of this type.
Employers with personnel working under contracts similar to the one in this case are advised to review their employment status and consider whether the arrangements comply with National Minimum Wage legislation and the rules on workers’ holiday leave and pay. Contact Damian on 020 82636080 for assistance with this exercise.
A Pentecostal Christian has failed to persuade the Employment Appeal Tribunal (EAT) that the Employment Tribunal (ET) erred in dismissing his claim that he had suffered direct and indirect discrimination on the grounds of his religious beliefs (Trayhorn v The Secretary of State for Justice).
Barry Trayhorn worked at HM Prison Littlehey as a gardener. The prison houses approximately 1,200 inmates including sex offenders and young offenders. Mr Trayhorn is an ordained Pentecostal minister and volunteered to help at services in the prison chapel. Following a complaint from a prisoner that he had said that same-sex marriage was wrong and ‘needed stopping’, he was told not to preach at services in future but was permitted to continue to lead the singing.
At a service a few weeks later, however, Mr Trayhorn spoke out forcefully on damnation and homosexuality when commenting on a passage from the Bible (1 Corinthians 6:9-11). There were further complaints about his preaching from prisoners, one objecting to the way in which he had goaded the congregation, telling them to complain about him if they didn’t like what he was saying. As a result, Mr Trayhorn was told to stop volunteering at chapel services. After being notified that he would be required to attend a disciplinary hearing, he went on sick leave and was signed off work for three months. He resigned before the disciplinary process had been completed, the outcome of which was to issue him with a final written warning.
The ET rejected Mr Trayhorn’s claims of unfair constructive dismissal and direct and indirect discrimination on the grounds of religion or belief. Firstly, his employment was terminated by his resignation, not because he was constructively dismissed. As regards his discrimination claims, the reason he was stopped from volunteering and made the subject of disciplinary proceedings was not his religious beliefs but because his sermon went far beyond mere quotation of scripture and lacked context and sensitivity of approach. The ET also found that Mr Trayhorn’s claims of indirect discrimination were without foundation. He had not produced evidence to support his contention that the prison’s Conduct and Disciplinary Policy and its Equality of Treatment for Employees Policy each amounted to a provision, criterion or practice (PCP) that put employees who were of the Christian faith and/or of the Pentecostal denomination at a particular disadvantage, either singly or as a group. His argument was that they were more likely to quote from or discuss passages from the Bible that those attending chapel services might find offensive or to make comments based on their beliefs that could be deemed to be a breach of the equality policy, but the ET observed that members of other religions and no religions hold firm views on homosexuality. Nor was there evidence to support his claim that there was an ‘unwritten practice that issues involving discussion of religion, moral condemnation of homosexual practice or any expression of Christian sexual ethics could not be mentioned or that views thereon could not be expressed in the workplace’.
Mr Trayhorn took his case to the EAT and lost. In the EAT’s view, the ET had applied the correct tests for direct and indirect discrimination. His employer did not object because he had quoted from the Bible – a manifestation of his belief – but because of the way in which he had addressed the congregation. Nor did the EAT support Mr Trayhorn’s argument that the ET had erred in relying on ‘group disadvantage’ (Section 19(2)(b) of the Equality Act 2010) as a necessary condition for him to establish indirect discrimination or that doing so was incompatible with his rights under Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion. Although the ET had referred to group disadvantage, it had not reached its decision on that basis. On the facts, it had not been satisfied that the two PCPs put Mr Trayhorn at a disadvantage because of his religious beliefs or that other Christians, whether singly or as a group, were disadvantaged.
Lastly, the ET had found no evidence that the prison’s discipline and equality policies had disproportionately restrained Mr Trayhorn’s manifestation of his religious beliefs. In the circumstances, his employer had established that the application of the policies was a proportionate means of achieving the legitimate aim of protecting order and security within the prison.
Contact Damian on 020 82636080 for advice on any aspect of discrimination law.
We want to be completely clear and open with you – so have set out below examples of the type of paperwork we use. These documents will help you understand your rights and how we will work on your behalf. These documents will be slightly amended in each case so that you have your own individualised “client care” documents.
Welcome Letter (Part 1) | Welcome Letter (Part 2) | Complaints Procedure | Right to Cancel | Terms and Conditions
I am a Senior Advocate (England and Wales) at Nationwide Employment Lawyers Ltd (www.natemplaw.co.uk) and not a barrister in independent practice. This means I can offer a superior level of service to clients. Nationwide Employment Lawyers Ltd is Authorised and Regulated by the Financial Conduct Authority. For peace of mind you can find information about our authorisation by checking the Registration number 838365 on the Financial Services Register : register.fca.org.uk. Please note all telephone calls are recorded, as required by the regulator. Nationwide Employment Lawyers Ltd is not a firm of solicitors. Instead it offers an exceptional level of service using specialist employment law Solicitors, Barristers and a Senior Advocate. Please contact me using either the questionnaire, quick contact form above or on 0333 242 3851.