WJM Employment Briefing - February 2016

Published byMartin Stephen

3rd February 2016

Monitoring communication in the workplace

Barbulescu v Romania sheds further light on the interesting subject topic of internet and e-mail use within the workplace. The European Court of Human Rights (“ECHR”) held that subject to reasonableness and proportionality, a person’s Article 8 right to respect for private life and correspondence is not breached by an employer monitoring his employee’s personal communications at work.

At his employer’s request, Barbulescu created a Yahoo Messenger account for the purpose of responding to client enquiries which he also used to send personal messages to his fiancé and brother, contrary to internal regulations. Barbulescu was subsequently dismissed. On appeal to the ECHR, he challenged his employer’s decision on the basis that the Romanian Courts should have excluded all evidence of his personal communications as they were private in nature and fell within the scope of Article 8. It was argued by the Government that the Article 8 right was not applicable as the account was set up for professional use and that the applicant had claimed that he had only used it for this purpose. The Government inferred that the applicant could not claim an “expectation of privacy” whilst at the same time denying any private use.

The ECHR held that whilst Barbulescu’s Article 8 right had been engaged, the Romanian courts were entitled to look at the transcripts of his personal messages to decide whether the dismissal was justified. In coming to their opinion, the ECHR focused heavily on the fact that in coming to their opinion the Romanian Court judgement did not reveal the precise content of the messages, only the fact that Barbulescu had sent personal messages. The ECHR stressed that in examining the Yahoo Messenger account, the employer had not reviewed any other data and documents stored on Barbulescu’s computer and instead the Employer had only reviewed the Yahoo Messages for the specific purpose of checking that he was completing his professional tasks during working hours. As such, their actions were limited in scope and proportionate

WJM’s Employment Team advises: This case sends a warning message to both employers and employees. Firstly, it is important for employers to have a clear IT policy in place and to ensure their employees understand this. It is also clear that when monitoring employees’ use of communication services or internet, this should be limited to a clear and reasonable objective. Secondly, it is a reminder to employees to ensure that use of internet and communication services are limited to what is acceptable practise within the workplace. Where your employer has an IT policy, it is important that you review this.

Restriction on languages

In the case of Kelly v Covance Laboratories Ltd, the Employment Appeal Tribunal (“EAT”) upheld an employment tribunal’s decision that an instruction to an employee not to speak Russian at work was not racial discrimination or racial harassment on the grounds the Employer had a reasonable explanation for its actions, unrelated to the Employee’s nationality.

Kelly was employed by Covance, who carried out animal testing and had previously had issues with animal rights activities, including violent assaults on its employees and activists working undercover in order to obtain information to further their campaign. The company had concerns regarding Kelly’s conduct and performance including having long conversations in the office toilets in Russian which raised concerns Kelly was an animal rights activist who had infiltrated the company. On the basis of these concerns, Covance instructed Kelly to no longer speak Russian at work so that her conversations could be understood to which Kelly raised a grievance. Subsequently, it had been discovered Kelly had been convicted of benefit fraud which she had failed to disclose upon her employment and she was invited to a disciplinary hearing. The day before this Kelly resigned and brought various claims to the Employment Tribunal which were dismissed. Kelly then appealed on the basis of race discrimination and race harassment.  

The Employment Appeal Tribunal (“EAT”) dismissed the appeal on the basis that Covance had a reasonable explanation for its actions which were not related to Kelly’s race or nationality but instead arose from a reasonable security requirement. Further points that were considered was the fact that Kelly’s colleagues who also spoke Russian were also provided with the same instruction and that the Employer would have given the same instruction to a hypothetical comparator.

WJM’s Employment Team advises: If an employer decides that it has a good business reason to introduce a language requirement at work, it should ensure that any policy is clear and readily available and is applied consistently to all employees. It is important to note that ACAS guidance states that Employers should be wary of prohibiting or limiting the use of other languages in the workplace, unless there is a genuine business reason.

Calculating Annual Leave

In the case of Greenfield v the Care Bureau Ltd, the European Court of Justice (“ECJ”) ruled that when a part-time worker increases their hours, any statutory annual leave that has already accrued does not need to be recalculated retrospectively to take account of their increased working hours. However, from the point that their hours increased, their annual leave should be recalculated to reflect those hours. Additionally, any leave taken in excess of the entitlement that applied under the previous working hours should be deducted from their annual leave going forward.

Greenfield was employed as a care worker by Care Bureau Ltd where her working hours and days differed from week to week. Greenfield at one point was working one day a week at which point she took of seven days leave, resulting in her exceeding her 5.6 weeks’ entitlement. After this period she increased her hours and began working a pattern of 12 days on and 2 days off. When she requested leave off later in the year it was refused on the basis that she had exhausted her entitlement to paid annual leave. Greenfield brought a claim in the Employment Tribunal for pay in lieu of leave not taken which was successful and subsequently appealed by the Care Bureau.

On appeal to the ECJ it was held that whilst nothing in European Law requires Member States to retrospectively adjust leave already accrued or already taken, according to the worker’s new working pattern. A new calculation must be performed to accurately reflect the employee’s annual leave entitlement going forward, based on their new working pattern. The units of annual leave must be calculated separately for each period where the working pattern differs and where annual leave taken which exceeds the right to paid annual leave at that time must be deducted from newly accumulated rights during the period when the worker increased their hours.

WJM’s Employment Team advises: Greenfield highlights the broad principles in respect of annual leave, as the ECJ has previously ruled that a move from full-time to part-time work should not be affected by the amount of leave already accrued, it seems clear that the converse would also be true. However, it is unfortunate that the court did not say how paid holiday should be calculated for those whose working patterns change. What is clear is the complexity that surrounds calculating annual leave, specifically in respect to workers whose hours vary.

Early Conciliation time limits

In Myers and Another v Nottingham City Council the Employment Tribunal considered how to calculate an extension of time in circumstances where Acas early conciliation began prior to dismissal.  

Early conciliation or Acas conciliation is the process by which Acas is engaged to deal with disputes between employers and employees through conciliation. It is a legal requirement to undertake early conciliation prior to bringing an employment tribunal claim.

In this case both Claimants were employees of Nottingham City Council. Prior to the date of their dismissal both individuals contacted Acas and commenced early conciliation following which the Claimants presented their claim for unfair dismissal and disability discrimination. It was argued by Nottingham City Council that the claims had been presented out of time and argued that the time spent in early condition prior to claimant’s dismissal should not be included when calculating the last day for presentation of the claim.

The Employment Tribunal held that the entire early conciliation period should be taken into account when determining the length of the extension allowed to bring a claim.

WJM’s Employment Team advises: This approach, whilst consistent with guidance, is contrary to section 207B of the Employment Rights Act 1996 which states that the early conciliation period is “not to be counted” and as such, unless this decision is reviewed on appeal, employers and employees should be wary of relying on it.