Article 8 (right to privacy) not engaged by employer investigating emails

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

When an employer investigated an employee's emails to a work colleague, was Article 8 of the European Convention on Human Rights (right to privacy) engaged?

No, held the EAT in Garamukanwa v Solent NHS Trust, on the facts of that case.

The Claimant was a clinical manager for the Trust. He formed a personal relationship with a staff nurse, Ms MacLean. The Claimant then suspected that Ms McLean had formed a relationship with a female colleague, Ms Smith. He resented this. Anonymous malicious emails were sent from various fictional email addresses to management. Ms Maclean also became concerned that the Claimant was now harassing and stalking her. The employer investigated, and concluded there were items on the Claimant's iPhone which implicated him and linked him to the anonymous emails. He was dismissed for gross misconduct. His claim for unfair dismissal failed.

In the course of the employment tribunal proceedings he unsuccessfully argued that the employer had acted in breach of Article 8 by examining matters related purely or essentially to his private life. The employment tribunal rejected this. It considered that Article 8 was not engaged on account that the emails had a potential impact on work, and dealt, at least in part, with work related matters.

The EAT agreed. It relied on the guidance of Mummery LJ in X v Y on the impact of Convention rights in unfair dismissal cases. The first question always to be asked is whether the circumstances of the dismissal fall within the ambit of one or more articles of the Convention. Unless they do, the rights are not engaged and need not be considered further.

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, here, the emails had impacted on work related matters and the emails were sent to work addresses of the recipients. They distressed colleagues, potentially affecting their work, and the Claimant's judgement, as a manager, was rightly to be examined.

These were all features that entitled the employment tribunal to conclude that Article 8 was not engaged and therefore not relevant because the Claimant had no reasonable expectation of privacy in respect of such communications.

Government To Investigate Non-Compete Clauses

The Government is launching a call for evidence asking for views on non-compete clauses. These are often seen in employment contracts and can prevent individuals from competing against their former employer or working for a competitor for a set period of time.

There is a good post on this call for evidence from barrister Jamie Anderson here.

Incorporation of Terms: When Staff Handbook Absence Policy is Contractual

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Is an absence management policy in a Staff Handbook 'apt for incorporation' into employee contracts?

Yes, held the Court of Appeal, on the facts in Department for Transport v Sparks, dismissing the Department's appeal against a finding that an absence management policy had contractual effect.

The case arose from a dispute as to whether certain parts of the Department's staff handbook were incorporated into employees' contracts. The Claimants (7 in all) had obtained a declaration in the High Court that certain clauses in the Department's Staff Handbook had contractual effect. The appeal focused on a short-term absence management policy, which, if contractual, restricted managers' scope for taking disciplinary action until specific trigger points had been exceeded, 21 days of short-term absence in any 12-month period.

The Court reviewed the tests for the incorporation of handbook policies into employment contracts. Viewing the employment documents as a whole, the relevant introductory wording of the handbook pointed to a 'distinct flavour of contractual incorporation'. The fact that it might generally be a desirable feature of industrial management to handle absence matters through non-contractual policy would not prevent a particular provision from being 'apt for incorporation'. In contrast, a policy that was stated as forming a 'framework within which to approach such matters' would not be contractually binding.

Practitioners may wish to note that the Court stated that with the handbook existing only in electronic form, it was far from satisfactory that various versions of it had been irretrievably deleted on updating without retaining previous versions.

Employment Agency Amendment Regulations

The conduct of employment agencies and businesses is governed by (amongst other things) The Conduct of Employment Agencies and Employment Businesses Regulations 2003. From 8 May 2016, these are amended by the newly published The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016.

The main change is the removal of the requirement for employment agencies/businesses to agree terms, and enter into a written contract, with hirers before providing any services.

There are other, subsidiary changes, including a requirement for the regulations to be reviewed by the Secretary of State every five years and some tweaking to the requirements for job adverts.

Enforcement of Tribunal Awards and Settlements

The Department of Business, Innovation and Skills has published its form for claiming penalties from employers for non-payment of tribunal awards or settlements.

Under the new s37A to 37Q of the Employment Tribunals Act, a Claimant who has not been paid any sums under a settlement or tribunal award can ask BIS to issue a penalty of 50% of the outstanding amount, subject to a minimum of £100 and a maximum of £5,000.

Acas Early Conciliation: what is a 'month'?

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

When the time limit for an employment tribunal claim is extended by a month (under s207B ERA 1996) after Acas Early Conciliation, does the extension run following the 'corresponding date' rule (e.g. from 30th June to 30th July)?

Yes, held the EAT in Tanveer v East London Bus and Coach Company Limited, dismissing the Claimant's appeal against a decision barring his unfair dismissal claim as out of time.

The Claimant was dismissed on 20th March 2015, he went to ACAS on 18th June 2015 and an Early Conciliation 'EC' Certificate was issued on 30th June 2015 ('Day B' in Section 207B ERA). The Claimant's solicitors presented the Claim Form on 31st July 2015, and the unfair dismissal claim was dismissed by the employment tribunal as one day late, but time was extended for a discrimination claim.

The appeal turned on the application of the 'corresponding date' rule to Section 207B, which extends time for a claim by one month after Day B. The rule meant that time runs from the date in question (the issue of the EC certificate) to the corresponding date in the following month (i.e. 30th June to 30th July), or the last day in a shorter month, e.g. 31st May to 30th June. The EAT followed as binding the House of Lords decision in Dodds v Walker, a tenancy case, but also noted that this interpretation made for clarity and simplicity. 'One month after Day B' did not mean one month from "in this case" 1st July. As Lord Diplock said in Dodds"all that the calculator has to do is mark in his diary the corresponding date in the appropriate subsequent month".

TUC Publishes Advice on Legal Implication of Brexit

The TUC has published a 66-page Advice by Michael Ford QC on the potential impact of Brexit on employment and health & safety laws.

It's an impressive piece of research. Anyone interested should probably read the summary at the end before attempting the full Advice.

Christian Proselytising and Discrimination

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Was disciplinary action against an employee for improperly promoting Christianity to a junior colleague unlawful religious discrimination?

No, held the EAT in Wasteney v East London NHS Trust.

Ms Wasteney is a Christian. Complaints were made by a junior worker of Muslim faith about her behaviour. The complaints related to various interactions with Ms Wasteney which the complainant employee characterised as "grooming". This included Ms Wasteney's praying with the junior employee, the laying on of hands, giving her a book which concerned the conversion to Christianity of a Muslim woman and inviting her to various services and events at Ms Wasteney's church. This was unwanted attention.

These complaints were investigated and the Trust found Ms Wasteney guilty of serious misconduct by blurring professional boundaries and subjecting a junior colleague to improper pressure and unwanted conduct. She was given a formal warning. Ms Wasteney claimed unlawful religious discrimination and harassment.

The employment tribunal rejected those claims and the EAT agreed.

There was a distinction to be drawn between merely manifesting a religious belief, discipline for which would be unlawful discrimination. On the other hand, disciplining someone for improperly promoting religious belief in a way that was not consensual, and which took advantage of someone in a subordinate relationship, was not unlawful discrimination because of religion or belief.

Nor did Article 9.1 of the European Convention on Human Rights (freedom of thought, conscience and religion) assist Ms Wasteney. This was qualified by Article 9.2 (the rights and freedoms of others). So that did not, said the employment tribunal (with which the EAT agreed), give Ms Wasteney "a complete and unfettered right to discuss or act on her religious beliefs at work irrespective of the views of others or her employer".

In rejecting Ms Wasteney's appeal, the EAT considered that the employment tribunal approached its task correctly and provided proper and adequate explanation of its reasons.

Protected Disclosure - Information v Allegation

Does the distinction between 'information' (which can be a qualifying disclosure) v an 'allegation' (which cannot) remain good law?

No, held the Employment Appeal Tribunal in Kilraine v London Borough of Wandsworth.

The Claimant, an Education Achievement Project Manager, complained that the Respondent was failing in its legal obligations in respect of bullying and harassment, and that her line manager had not supported her when she, the Claimant, had raised a safeguarding issue in relation to a school.

The employment tribunal found that they were allegations, and not disclosures of information, in accordance with Cavendish Munro v Geldud. Although agreeing on the facts of the case, the EAT disagreed with that as a general principle of law. It considered the distinction between 'allegation' and 'information' to be a false dichotomy, and that often something could be both - see para. 30 of the judgment.