Investigations and the Right to Privacy

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Is it a breach of human rights to monitor emails?

Article 8 of the European Convention on Human Rights protects employees’ right to privacy; this extends to the sanctity of private correspondence. Which makes sense of course: no reasonable employer would expect to have access to credit card statements, final demands and love letters!

However, things are less clear – much less clear – when the employee uses work email to send and receive personal emails. The nutshell answer is that employees’ private emails, even those sent from a work email account, are covered by Article 8 if:

  • the employee has a reasonable expectation of privacy
  • the emails do not impact on work related matters
  • the emails are not addressed to colleagues’ work email addresses

So, what to do? We advise that you should have a written policy that explains your approach to email and internet usage and which makes it clear that employees cannot expect emails sent using work systems to be kept private.

You could indicate that monitoring of emails will, where possible, avoid access to those whose subject line contains something like: ‘Private & Personal Email Not Relevant to Business Functions’. This will discourage the practice except in real emergencies, and make it very obvious when email systems are being abused.

Equal Treatment of Agency Staff

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Do Agency Staff need to be given equal opportunity to apply for permanent positions?

Agency workers must be informed of permanent vacancies and the Temporary Agency Worker Directive provides rights of equal treatment when compared to permanent staff, however: how far does this duty go?

The answer, according to the Employment Appeal Tribunal in the Coles v Ministry of Defence Case, is that for agency workers the principle of equal treatment is confined to working time and pay.

In this case Mr Coles, an agency worker, was displaced when his job was given to a permanent employee who was at risk of redundancy. The EAT decided that there was no requirement for him to be treated equally to permanent employees and given an opportunity to be interviewed.

Tribunal’s approach to Disability

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What is necessary to show a disability and how far does a tribunal have to go to assist a Claimant?

In Joseph v Brighton & Sussex University Hospitals NHS Trust Mr Joseph (who was not legally represented) failed to adduce evidence to cover all of the ingredients for a disability under Section 6 Equality Act, which are:

  • a physical or mental impairment
  • that has a substantial adverse effect on ability to undertake normal day to day activities, and
  • which is ‘long term’ (meaning that it has lasted or is likely to last more than a year)
  • However, documents in a 580 page bundle that was before the tribunal were relevant to these questions, but the tribunal did not consider them. Mr Joseph complained the tribunal should have been more proactive and inquired further by looking at these documents.

    The Employment Appeal Tribunal disagreed, saying that the tribunal’s duty to assist an unrepresented Claimant did not require it to go this far.

Travel time is working time for peripatetic workers

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A question that often arises is whether, in the case of a worker who is not assigned to a place of work, journey time from home to the first customer and from the last customer back to home, counts as working time

Yves Bot, the Advocate General of the Court of Justice of the European Union (CJEU) has stated his opinion in the Federacion de Services case, advising that time spent on these journeys is working time.

Whilst the CJEU does not have to follow the Advocate General’s recommendations it seldom decides not to, so it is almost certain that this will be upheld in by the court in due course.

This means that employers must include these journey times in the calculations of weekly working hours and pay, and factor this time when addressing workers’ rights to minimum break times.

Jewish Sabbath and Religious Discrimination

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A Manchester Tribunal awarded £16,000 in damages to an unsuccessful job applicant who was rejected because she could not work on Saturdays

The Jewish sabbath (‘shabbat’) prohibits work from sunset on Friday to sunset on Saturday, however, the Respondent is a travel agency and wanted an employee who could be more flexible with hours.

Employers who operate practices that disadvantage applicants or employees because of their religion or belief face indirect discrimination claims, however, this is not the end of the story.

Often indirect discrimination can be justified and if individual cases are handed sensibly and carefully, this kind of liability (and the associated negative publicity) can be avoided.

Flowing Jilbabs and Religious Discrimination

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The EAT has upheld a Tribunal’s decision that a limit on the length of a ‘jilbāb’ was not discrimination

A ‘jilbāb’ is any long and loose fitting coat or garment and is worn by some muslim women. The jilbāb covers the entire body, except for hands, face, and head. The head and neck are then covered by a scarf or wrap (khimar). Some women will also cover the hands and face (niqab).

This type of garment is worn to comply with the Quran’s stipulations about modesty, in both men’s and women’s ‘gaze, gait, garments, and genitalia’ (see the Encyclopaedia of Islam and Muslim World).

In the case of Begum v Pedagogy Auras UK Ltd Ms Begum applied for a job as a nursery assistant and was asked if she could wear a shorter jilbāb that was not a trip hazard. She said ‘no’: she felt obliged to wear a long, flowing jilbāb, and took a claim of indirect discrimination on grounds of religion or belief against the employer.

Ms Begum lost her claim on two grounds:

  • she had not shown that her faith required a jilbāb that went beyond ankle level.
  • even if her faith required such a garment the employer’s reason for requiring a shorter one was justified.

The EAT upheld the Tribunal’s decision, finding that there was no error of law in its approach and that its findings were not perverse.

Zero Hours Contracts Trimmed

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Exclusivity Clauses Outlawed

From 26th May 2015 Zero Hours Contracts that prevent employees from working elsewhere or require the employee to get consent from the employer before working elsewhere, are void and cannot be enforced.

This change comes along with a statutory definition of a ‘Zero Hours Contract’: in a nutshell, it is when paid work is conditional on the employer providing it and there is no guarantee that work will be provided.

These types of contracts have been in the limelight for a while now; mostly because some employers use them unfairly and unscrupulously. A recent example is provided by Sports Direct, who employ the vast majority of employees at their depot (around 4,700) on Zero Hours Contracts.

However, it is still perfectly legitimate to use a Zero Hours Contract where there is a bona fide requirement for flexibility. We can provide your business with a contract template that is fair and legal.

Warnings issued in bad faith

Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it’s alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Mr Way had alleged bad faith on the part of the line manager who had issued the warning. The employment tribunal didn’t hear evidence about this at his unfair dismissal hearing; the dismissal was fair, the tribunal said. The Employment Appeal Tribunal held that, while Mr Way had done enough to raise a case of bad faith and the tribunal should have looked into this, it made no difference to the outcome.

But the Court of Appeal has sent the case back to a new tribunal. It will decide if the earlier warning was issued in good faith. If it wasn’t, it would have been unreasonable to rely on it when deciding if there was sufficient reason to dismiss Mr Way. And the fairness of the dismissal hinges on that.

So be clear about the significance of employees’ submissions on the motives behind warnings. Take any mention of bad faith seriously and be careful to not let it undermine the reasonableness of your disciplinary decisions. Ultimately, you have to disregard any past warning if, after investigation, you agree it was issued in bad faith.

Whistleblowing and ‘the public interest’

Chestertons v Nurmohamed

This case tested the meaning of “in the public interest” in relation to whistleblowing and contrasts with the Newman case below.

Mr Nurmohamed was a director of the estate agency, Chestertons. He claimed to have been unfairly dismissed after making protected disclosures relating to the company’s financial matters. He believed that Chestertons was deliberately mis-stating costs and liabilities, and that that affected the earnings of 100 senior managers, including himself.

The tribunal held that he had been unfairly dismissed and automatically unfairly dismissed, and had been subjected to detriments on the grounds that he had made protected disclosures. A question for the Employment Appeal Tribunal (EAT) was whether the disclosures satisfied the “public interest” requirement, triggering protection. Did disclosures which were in the interest of 100 managers do the trick?

The EAT held that the public interest test comes down to the discloser’s belief. In this case, Mr Nurmohamed reasonably believed that the disclosure was in the public interest. A relatively small group may be sufficient to satisfy the public interest test, the EAT said.

It’s something to bear in mind. Don’t assume that just because an issue may not be of significance to people outside your organisation that its relevance to a particular group won’t lead to a protected disclosure.

Political Beliefs at Work

GMB Union v Henderson

It’s worth getting a good grasp of the legal protections that exist for people who hold philosophical beliefs. As the Employment Appeal Tribunal (EAT) pointed out in this case, these may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs.

Mr Henderson was a Regional Organiser for the GMB. A tribunal found that he was fairly dismissed for gross misconduct (upheld on appeal) but that he had suffered unlawful direct discrimination and harassment on the basis of the protected characteristics of his “left-wing democratic socialist beliefs”. The Union won its appeal of the discrimination and harassment finding.

While discrimination and harassment wasn’t proved here, this case makes some important points about the breadth of protection afforded by discrimination legislation. The tribunal found that left-wing democratic socialism is a protected belief for the purposes of the Equality Act; a decision which wasn’t challenged on appeal. The EAT went on to make clear that all qualifying philosophical and religious beliefs are protected equally in law.

The EAT also held that it is perfectly possible for a dismissal to be both fair and unlawfully discriminatory. That’s provided the tribunal makes findings of facts that are supported by evidence, that the relevant statutory test is applied correctly, and the conclusions are reached by reference to the facts found.