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Entries in Unfair Dismissal (5)

Thursday
Jan282016

Can employers read employees’ private correspondence?

Earlier this month the media reported that a decision of the European Court of Human Rights has given employers the green light to snoop on employees’ personal emails. 

The case was brought by a Mr Barbulescu, a heating engineer who had been asked by his employer to set up a Yahoo Messenger account to deal with customer enquiries.  He was instructed not to use the account for personal correspondence and that his employer might monitor messages.  Mr Barbulescu used the account to send intimate messages to his fiancée. He was dismissed for unauthorised use of the internet.  Having unsuccessfully challenged his dismissal in the Romanian Courts he took the Romanian Government to the European Court, arguing that it had failed to protect his right, under Article 8 of the European Convention on Human Rights, to be able to correspond in private without “big brother watching you”. 

Whilst the Court dismissed Mr Barbulescu’s case, it definitely did not give employers carte blanche to read employees’ private correspondence.  Instead it decided that if employees have a “reasonable expectation” that correspondence is private, the employer should not read it. Even if there is no such expectation, employers should only read private correspondence if there is good reason to do so. 

So where does this leave us?  Barbulescu’s employer had instructed employees that Yahoo Messenger accounts were to be used only for business purposes.  It warned employees that it would monitor messages. Both points were critical to the success of its defence. 

The Barbulescu case reflects my own experience in local Employment Tribunals.  Last year I advised a client who had looked at its employees’ Yahoo Messenger accounts following a third party report that its employees were leaking confidential information.  In doing so it discovered that one of its senior employees had sent messages to colleagues in an apparent effort to undermine his employer.  He and others had exchanged inappropriate sexual comments about female colleagues.  It was clear that Yahoo Messenger was meant to be used for work.  I advised that the suggestion of a leak gave my client good reason to look at employees’ messages.  I advised that the offensive messages gave good grounds to dismiss for gross misconduct.  The employees were dismissed.  One of them claimed unfair dismissal, in particular that the messages were private “banter” and not any concern of the employer. The Tribunal gave very short shrift to his arguments, dismissing his case and ordering both him and his lawyer to pay our legal costs.  

The Barbulescu case implies that employers who give the right instructions and warnings can lawfully monitor messages and can discipline employees, both for breaching instructions and for what they say in correspondence.  The case also implies that employers that do not give such clear instructions and warnings may not be able to monitor or discipline.  Whilst disputes are not always that simple, our advice is very simple; give instructions and warnings to your employees, in writing, now.  We can help with the wording and with the process to implement it.  In doing so you are not saying that you want to snoop; these days most employees have smart phones, if they must correspond in private during working hours they can use their phones, not the employer’s internet. What you are doing is ensuring that if you do discover something that makes you want to end an employment relationship, you can. 

For further advice on the above or other Employment issues please contact Chris Thomson, Senior Partner at Greene & Greene (christhomson@greene-greene.com / telephone 01284 717412).  For more information on Greene & Greene please view www.greene-greene.com and follow @greenegreenelaw.

 

Tuesday
Dec292015

Must an employer adjust an Attendance Policy for an employee with a disability?

Many employers operate an Attendance Policy to help manage levels of sickness absence in the workplace.  These policies typically set out that specified amounts of absence will trigger formal disciplinary action, often on a “three strikes then you are out” basis.  However, is it fair to apply the same policy across the board, or should the trigger points be adjusted for employees with disabilities? 

Earlier this month the Court of Appeal handed down its decision in the case of Griffiths v Secretary of State for Work and Pension, which has provided us with some helpful guidance on this point. 

Mrs Griffiths suffered from post-viral fatigue and fibromyalgia and it was accepted that this condition amounted to a disability.  Mrs Griffiths was issued with a formal warning under the DWP’s Attendance Policy after having been absent from work for 66 days.  This absence was largely attributable to her disability. 

Mrs Griffiths complained to the Employment Tribunal that the DWP had failed to make “reasonable adjustments” to their absence management policy to accommodate her disability.  Specifically she asked for two adjustments:

  • first, that her 66 day absence be disregarded for the purposes of the Attendance Policy and the warning be withdrawn; and
  • second, that the policy should be modified in the future to allow her to take longer periods of absence without sanction than would be permitted to an employee who did not have a disability. 

The duty to make reasonable adjustments (in these circumstances) only arises if there is a provision criterion or practice (“PCP”) that places the employee with the disability at a substantial disadvantage in comparison with non-disabled employees. 

The PCP relied upon by Mrs Griffiths was the “requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal”.  However, both the Employment Tribunal and the Employment Appeal Tribunal concluded that Mrs Griffiths had not been put at a substantial disadvantage compared with non-disabled employees because a non-disabled employee absent for a similar period would have been subject to the same process and given the same warning.  As such, they concluded that the duty to make reasonable adjustments had never arisen and Mrs Griffiths’ claims failed in both the lower courts.  The EAT went on to find that, even if the duty had arisen, in the circumstances the adjustments sought by Mrs Griffiths were not reasonable so her claim would still have failed. 

The Court of Appeal disagreed with the EAT and stated that, where a person’s disability leads to a level of absence that a non-disabled employee is unlikely to have, then the rules of an attendance management policy will put the employee with a disability at a substantial disadvantage.  This means the duty to make reasonable adjustments is engaged. 

Having won half the battle, however, Mrs Griffiths was no doubt disappointed that the Court of Appeal went on to make a finding that the EAT was entitled to conclude that the proposed adjustments were not reasonable and, as such, her appeal was ultimately dismissed in any event. 

This case illustrates that where an employee has  disability related absences that trigger the application of an Attendance Policy, the duty to make reasonable adjustments will normally arise. 

The question will then turn to the extent to which the requested adjustments are reasonable, which will depend on the particular facts of the case.  Following this judgment, employers should consider carefully how to apply Attendance Policies to employees with disabilities and consider making reasonable adjustments where disability related absence is likely to be an issue. 

If you would like more information in relation to this update, or if you would like to arrange for a review of your current Attendance Policy, please do not hesitate to contact Robyn Armes or Selene Holden in our Employment Team at Greene & Greene.

Tuesday
Dec082015

Right to be Accompanied - Has the scope widened?

Under the Employment Relations Act 1999 and the ACAS Code of Practice on Disciplinary and Grievance Procedures, employees have the right to be accompanied by a trade union representative or a colleague at disciplinary and grievance hearings.  What should you do when an employee makes a request to be accompanied by someone else, such as a relative or a representative from an organisation other than a trade union?

The basic position is that the employee does not have any legal right to be accompanied by anyone other than a union representative or a colleague, so the request can be usually be denied.  However, the recent case of Stevens v University of Birmingham demonstrated that there are situations where you should consider allowing employees to be accompanied by someone elseMr Stevens was employed by the university as a Chief Investigator of clinical trials.  His contract was conditional upon him also having an “honorary appointment contract” with the Heart of England Foundation Trust (HEFT). He was subjected to disciplinary proceedings after allegations were made in respect of his clinical trials methods.  Mr Stevens asked to be accompanied at the disciplinary meetings by a Medical Protection Society (MPS) representative. The MPS is not a trade union and, as such, Mr Stevens’ request was refused.

Mr Stevens commenced proceedings in the High Court for a declaration of his rights and was successful. The Court concluded that, although Mr Stevens had no contractual right to be accompanied by the MPS representative, the university had acted in breach of the implied term of mutual trust and confidence by refusing his request.  The reasons given were as follows:

  1. The outcome of the disciplinary process was potentially career ending for Mr Stevens.
  2. It was not realistic for Mr Stevens to be accompanied by any of his colleagues as they were all involved in the process as witnesses. He was not a member of a trade union.
  3. Had Mr Stevens been subject to the HEFT disciplinary procedure (as opposed to the university’s) he would have been allowed to be accompanied by the MPS representative.
  4. A companion with a good grasp of the technical issues was needed.
  5. Other individuals who had been interviewed as witnesses had been allowed a wider choice of companion.
  6. The MPS is similar to a trade union.

This decision was specific to the facts of the case and the judge was careful to make it clear that in most cases it would be “perfectly fair” to restrict the employees choice of companion to a union representative or colleague. However, managers conducting disciplinary or grievance procedures should not be too quick to dismiss such a request out of hand. They should view the situation in the round and consider whether there are special circumstances (such as the employee’s first language being something other than English or the employee being disabled) which may justify the employee’s request.

Employees who have been denied the right to be accompanied can bring a claim for up to two weeks’ pay but, more significantly, employers who are found to have breached the term of mutual trust and confidence may run the risk of the employee resigning and claiming constructive dismissal, which could lead to far more serious financial consequences.

If you would like more information in relation to this update or if you need assistance with a disciplinary situation, please do not hesitate to contact Robyn Armes (robynarmes@greene-greene.com) (telephone 01284 717446) or Selene Holden (seleneholden@greene-greene.com) (telephone 01284 717436) in our employment team at Greene & Greene.  For more information on Greene & Greene go to www.greene-greene.com and follow @greenegreenelaw.

Friday
Jul112014

Tackling discrimination in the workplace

As employers you will (generally speaking) be liable for the behaviour of your staff whilst they are at work. This might be alarming in light of the recent case concerning the Metropolitan Police, which made the headlines last week.

In that case a manager was found to have formed a negative view of a more junior employee almost immediately after becoming her line manager, despite there being no objective grounds to justify this. In the absence of any other explanation, the employee thought that this was because she was black and the Employment Tribunal agreed, upholding her complaint of unlawful race discrimination against the employer.

There are, however, steps that you as an employer can take to protect your business from claims of race discrimination (and other forms of discrimination) and bearing in mind the potential for unlimited damages to be awarded in discrimination complaints, it is well worth doing so.

The key is to show that you did everything you reasonably could prior to the incident occurring to prevent the unlawful discrimination from occurring in the first place. This will require you to: 1. Have an Equality Policy in place and make sure your staff know about it. 2. Send out an annual reminder to staff about the Equality Policy and update them onany changes you have made. 3. Train all staff (particularly managers) on the Equality Policy. 4. Take complaints of discrimination seriously and deal with them properly in accordance with your established policies and procedures.

If you would like any further advice in relation to discrimination in the workplace, or if you would like to speak to us about equality training or introducing/updating an Equality Policy please do not hesitate to contact Robyn Armes (robynarmes@greene-greene.com) or Selene Holden (seleneholden@greene-greene.com) in our Employment Team at Greene & Greene. Twitter: @GreeneGreeneLaw

Thursday
Mar062014

Judicial Review – Employment Tribunal Fees

Back in summer last year we reported that, for the first time in Employment Tribunal history, employees will now have to pay a fee if they wish to bring a claim (see Selene Holden’s original blog here). As a result of this change to the law (which came into effect on 29 July 2013), the trade union UNISON launched a Judicial Review challenge on the grounds that the imposition of the fees was unlawful.

The Judicial Review hearing took place in October and November 2013 but the much anticipated Judgment was published during February.

During the hearing, UNISON ran various arguments against the regime, including claims that the fees made it “virtually impossible, or excessively difficult” for employees to exercise rights conferred by EU law and that women would be disproportionately affected. In summary UNISON contended that the introduction of fees was unjust and discriminatory. In defence, the Government argued that the fee remission arrangements should cancel out (or at least reduce) the impact on employees with limited means.

The High Court dismissed all UNISON’s challenges but made it clear that they considered that it was too early to assess the impact of the fees (since they were only introduced a few months previously) and that the challenge was premature.

UNISON have confirmed, via a press release, that they intend to seek leave to appeal the decision.

For the time being however, the fee regime will remain unaffected with one exception - as a result of the challenge, the Government’s Guidance has now been amended to make it clear that “the general position is that, if you are successful, the respondent will be ordered to reimburse you”. This should serve to reassure employees who believe that they have a strong case against their employers.

This article was prepared by Robyn Armes in our employment team at Greene & Greene. The contents of the article are for general information only but if you would like more information about Employment Tribunal fees, please do not hesitate to contact Robyn or Selene Holden at Greene & Greene for more information.

This article was prepared by Robyn Armes in our employment team at Greene & Greene. The contents of the article are for general information only but if you would like more information about Employment Tribunal fees, please do not hesitate to contact Robyn Armes or Selene Holden at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including: reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more.

Also find Robyn on:      Google +        LinkedIn