Constructive dismissal

Photo by Alex Radelich on Unsplash

Two days on the trot and I find myself discussing dismissal in connection with former employees of the UK Government. Yesterday, I addressed the case of Sonia Khan, a former Special Adviser to two Chancellors of the Exchequer, who has a very strong case for unfair dismissal.

I now want to turn to the another prominent case of dismissal with which the UK Government has had to face recently. Last month, Sir Philip Rutnam who had been the Permanent Secretary at the UK Home Office (the Ministry of the Interior) took legal action against his former employer. The Permanent Secretary is the top civil service post in a Government Department and the post-holder would work very closely with the Secretary of State and her ministerial team.

The background to Sir Philip’s legal action against the Government is pretty sensational. He alleges that he was forced to resign from his post due to the unreasonable actions of his boss, Priti Patel MP, the Home Secretary. He is alleging that Ms Patel behaved in a bullying manner towards him and other civil servants in her Department. In short order, Sir Philip is claiming that he was constructively dismissed.

A link to the story as reported in The Guardian about Sir Philip’s legal action can be found below:

https://www.theguardian.com/politics/2020/mar/03/top-civil-servant-begins-legal-case-against-priti-patel-and-home-office

Constructive dismissal is usually described as an employee jumping ship before s/he can be pushed over the side by the employer. It is a resignation, but it is not treated as such if the employee has good grounds for terminating the contract of employment.

In terms of Section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal is defined in the following terms:

‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’

The key phrase here is ‘by reason of the employer’s conduct’ and this is the reason why the employee has chosen to end the employment relationship.

The employee’s right to claim constructive dismissal arises in situations where the employer’s conduct is to be regarded as a material breach of the employment contract and the employee is left with no alternative but to resign. Normally, a resignation would not be regarded as a dismissal: if an employee resigned in a fit of pique s/he would not be entitled to claim State benefits (Universal Credit).

The employer’s conduct must be so serious in order to justify the employee’s decision to resign. When an employee claims that he has been constructively dismissed, he is claiming that he was unfairly dismissed. The right of constructive dismissal would arise in situations where the employer made unauthorised deductions from wages; subjected to bullying and harassment; where the employer refused to follow the proper disciplinary or grievance procedures; or where the employee was ordered to use equipment that was clearly dangerous or sub-standard.

In the well known case of Sharp v Western Excavating Ltd [1978] All ER 713, [1978] ICR 221, Lord Denning laid down the essential conditions for constructive dismissal:

An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is then constructively dismissed. The employee is then entitled in those circumstances to leave at that instant without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct in either case must be sufficiently serious to entitle him to leave at once. …. the employee must make up his mind soon after the conduct of which he complains. If he continues for any length of time without leaving, he will be treated as having elected to affirm the contract and he will lose his right to treat himself as discharged.”

In Wishaw & District Housing Association v Moncrieff [2009] UKEAT0066/08, the Employment Appeal Tribunal in Scotland provided helpful guidelines for Employment Tribunals when dealing with claims for constructive dismissal.

According to Lady Smith, the President of the Employment Appeal Tribunal, an Employment Tribunal dealing with unfair constructive dismissal must have regard to the following issues:

1. The specific incident which led the employee to resign from employment (the so called last straw) must be pinpointed;

2. Once this incident has been pinpointed, the Tribunal must carry out an objective assessment to judge whether it can contribute to a chain of events which taken together convey the overall impression that the employer has breached its implied duty of trust and confidence; and

3. If the incident has the potential to be viewed as breach of the duty of trust and confidence does it in fact constitute the last straw in a chain of events which would permit the affected employee to treat himself as constructively dismissed?

Conclusion

In constructive dismissal claims, the employee is alleging that the employer’s behaviour has effectively destroyed the employment contract by committing a material breach. However, employees must be careful: the employer’s conduct must be so serious that it allows the employee to treat herself as dismissed.

Employees should take proper legal advice before taking such a step. It could be disastrous if they get it wrong. Get it right and employees can claim unfair dismissal. Stella English, 2010 winner of the BBC’s “The Apprentice” television programme knows all about getting it wrong. Ms English resigned from employment with Lord Sugar and claimed constructive dismissal. Her action failed (see Stella English v Amshold Group Ltd Case No 3200079/12).

In Nationwide Building Society v Niblett [2009] UKEAT/0524/08, was very clear that merely because an employer has behaved unreasonably towards an employee does not necessarily provide grounds for claiming constructive, unfair dismissal:

It is not the law that an employee can resign without notice merely because an employer has behaved unreasonably in some respect. In the context of the implied term of trust and confidence, the employer’s conduct must be without proper and reasonable cause and must be calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee“.

Related Blog Article:

https://seancrossansscotslaw.com/2020/04/08/undignified-exit/

Copyright Seán J Crossan, 9 April 2020

Undignified exit

Photo by Nick Kane on Unsplash

The dismissal of Sonia Khan

In August 2019, a story which was widely reported in the British media, caught my attention: the abrupt dismissal of Sonia Khan as a special adviser (or ‘Spad’) with the UK Government. Ms Khan had worked for two previous Chancellors of the Exchequer (the UK Finance Minister). She was summoned to a meeting with Dominic Cummings, the UK Prime Minister’s top political adviser and sacked. Ms Khan was ordered to surrender her security passes and escorted from Downing Street by an armed Police Officer. All in all, it was a very undignified and humiliating exit for Ms Khan. Needless to say, Mr Cummings did not follow any disciplinary procedure when he made the decision to give Ms Khan her marching orders.

This decision was far from wise and Ms Khan has an extremely strong case for unfair dismissal in terms of the Employment Rights Act 1996 (she has the necessary continuous service of more than 2 years required to bring such a claim and no warnings were issued to her).

This affair led to me think about humiliating dismissals by employers and whether the affected employee could claim damages for the manner of their sacking? In other words, can the sacked employee claim that their feelings were injured as a result of the way in which they s/he was dismissed?

Links to articles about Sonia Khan’s dismissal can be found below:

https://www.independent.co.uk/news/uk/politics/sajid-javid-dominic-cummings-fires-special-adviser-johnson-brexit-sonia-khan-a9085056.html

https://www.standard.co.uk/news/politics/no-10-must-pay-sajid-javids-fired-aide-tens-of-thousands-in-compensation-a4232216.html

Injury to feelings in discrimination claims

When discussing discrimination claims in terms of the Equality Act 2010 (primarily), I often stress the issue of injury to feelings as an element that will be included in the calculation of a final award by an Employment Tribunal.

In several Blogs (please see the end of this article for the relevant links), I have discussed the importance of the Vento Guidelines or Scale.

In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871 compensation limits of £15–25,000 were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust ET Case 1803960/2007 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.

These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children (2009) EAT/0227/09, the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.

Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.

The current bands or scales (from 6 April 2020) are:

♦ £900 to £9,000 for the lower band

♦ £9,000 to £27,000 for the middle band

♦ £27,000 to £45,000 for the top band

What’s the situation with unfair dismissal claims?

In Dunnachie v Kingston upon Hull City Council [2004] EWCA Civ 84, the English Court of Appeal set the cat amongst the pigeons when it stated that a compensatory award for unfair dismissal could also include injury to an employee’s feelings. The Court of Appeal was clearly relying upon an obiter remark made by Lord Hoffman during the decision of the House of Lords in Johnson v Unisys [2001] UKHL 13.

As far back as the decision by the short lived National Industrial Relations Court (1971-1974) in Norton Tool Co Ltd v Tewson [1972] EW Misc 1, the position was quite clear: the compensatory award in unfair dismissal claims did not include injury to an employee’s feelings in connection with the manner of the dismissal suffered by him or her.

Lord Hoffman’s obiter statement and the decision by the Court of Appeal in Dunnachie appeared to place this principle in considerable jeopardy and opened the door to what could have been a potentially significant, new development in unfair dismissal case law. Clearly, it would be advantageous for the House of Lords to provide a definitive ruling on this matter.

Subsequently, Kingston upon Hull City Council appealed against the judgement of the Court of Appeal to the House of Lords. 

On Thursday 15th July 2004, the House of Lords delivered its judgement in this case ([2004] UKHL 36). Their Lordships (Lord Hoffman amongst them – ironically) killed off any idea that an award for unfair dismissal could include injury to an employee’s feelings for the manner of the dismissal.

Compensation, therefore, in unfair dismissal claims will be concerned with the employee’s economic losses only.

Conclusion

The decision of the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 was and remains a clear restatement of the orthodox position as set down by Sir John Donaldson all those years ago in Norton Tool Co Ltd.

As Lord Steyn, one of the Law Lords, remarked in Dunnachie:

“On the other hand, the correctness of the Norton Tool decision was not an issue in Johnson v Unisys. It is true that there were references by both sides in the oral argument to Norton Tool. But the House heard no adversarial argument exploring the correctness or otherwise of that decision. In these circumstances a definitive overruling of a decision which had stood for nearly 30 years would have been a little surprising.”

In fact, Lord Hoffman’s observation (and it was nothing more than observation we are now assured) could in no way be interpreted as an attempt to overturn a long-standing and well-established legal principle. Lord Hoffman, in Johnson v Unisys [2001], was not “inviting the House to overrule a longstanding decision on a point of statutory construction that was not in issue and not explored in opposing arguments.” The statement by Lord Hoffman was clearly obiter dictum i.e. things said by the way which do not form part of the actual court’s judgement and that was the end of the matter.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2020/02/09/bad-hair-day/

https://seancrossansscotslaw.com/2019/04/23/exclusion/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 8 April 2020

Take it or leave it …

Photo by Liviu Florescu on Unsplash

Take it or leave what?

This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.

The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.

Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.

What’s the legal position?

Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.

The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.

Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).

The statutory periods are detailed below:

  • One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
  • If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
  • If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks

It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.

Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.

Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.

What if some people still refuse to sign the new contracts after their statutory period of notice has expired?

There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.

Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).

No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.

A link to the story on the Sky News website can be found below:

Asda refuses to remove sack threat for thousands of staff over compulsory contracts http://news.sky.com/story/asda-refuses-to-remove-sack-threat-for-thousands-of-staff-over-compulsory-contracts-11845215

Postscript

It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.

Please see the link below to this story:

https://www.mirror.co.uk/money/asda-worker-sue-supermarket-after-20857926

The Guardian also reported that the negative publicity from this story could be costly for Asda – see the link below:

https://www.theguardian.com/business/2019/nov/10/asda-faces-backlash-enforces-new-contracts

Copyright Seán J Crossan, 26 October and 12 November 2019

It happened outside work … (or it’s my private life!)

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Photo by William Iven on Unsplash

In Chapter 6 of Introductory Scots Law, I focus on the conduct of employees (or should I rephrase that and say misconduct?).

Misconduct – especially the most serious examples of bad behaviour in the workplace – might be grounds for a fair dismissal of the employee concerned.

Section 95 of the Employment Rights Act 1995 states that an employment contract could be terminated by the employer by reason of the employee’s conduct. Such a dismissal or termination of contract could be regarded as a fair dismissal (Section 98: ERA 1996).

If procedures are properly followed by the employer when contemplating dismissal as the ultimate disciplinary sanction, it will be very difficult for the employee to dispute this.

It’s very important for an employer to spell out to employees the type of conduct which could justify dismissal. This might usefully be done by having a section in the employee handbook which specifically addresses the issue of misconduct in the workplace. Additionally, a proper induction process for new employees might focus on the types of behaviour which the employer would almost certainly not condone. Regular refresher training for existing and longer term employees could also be very useful and, in bigger organisations, this would be an important function of the Human Resources or Personnel Department. The recent introduction of the EU’s General Data Protection Regulations (GDPR) in May 2018 is a case in point. Existing members of staff who handled personal or confidential data under the previous data regime would almost certainly be required to be brought up to speed about the more serious consequences of breaching the GDPR.

Misconduct outside the workplace

What about misconduct committed by employees outside working hours? There is an enduring myth amongst members of the public that what happens in your private life is no business of your employer’s. This is a very naive view to hold: employee misbehaviour – whether during working hours or outside work – can adversely affect the employment relationship. The employer will argue that misconduct committed outside working hours can have serious reputational consequences for the organisation.

As many individuals have found to their cost, extra curricular activities can lead to dismissal from employment or some other disciplinary sanction (see Pay v Lancashire Probation Service [2004] IRLR 129 where a probation officer who was part of a sado-masochistic circus act in his spare time was deemed to be fairly dismissed). On the other hand, the employer has to be careful and must not be heavy handed (see Redfearn UK [2012]  ECHR 1878 where the employee suffered unlawful discrimination when he was dismissed on the grounds of his political beliefs).

The case law is full of examples of employees getting themselves into trouble outside working hours as a result of alcohol and drugs misuse or committing criminal acts. Some examples can be seen below:

Richardson v City of Bradford Metropolitan Council[1975] IRLR 296 a senior meat inspector employed by the Council lost his claim for unfair dismissal in relation to misconduct committed outside work: he had stolen money from his local rugby club where he held the office of Treasurer. The Council argued successfully that this incident demonstrated a serious lack of integrity on the employee’s part and, thus, made him unsuitable for continuing employment.

Moore v C & A Modes [1981] IRLR 71 the employee in question was a section leader in a retail store. He had been caught shoplifting at another store and his employer decided to dismiss him. The dismissal was fair: the employee’s conduct had undermined his employer’s trust and confidence in him, not to mention the potential damage done to its reputation as a result of his criminal behaviour.

X v Y [2004] EWCA Civ 662 a charity support worker who worked with with young offenders was cautioned by police officers after committing an indecent act with another male in a public toilet at a motorway service station. He was also placed on the Sex Offenders’ Register as a result of receiving the Police caution. The employee had not been honest to the Police when asked questions about his job and, compounding this, he failed to inform his employer about the situation. The employer decided to dismiss this individual and the dismissal was deemed to be fair. The reputational damage which the employer suffered because of the employee’s failure to disclose what had happened was a significant factor here. The English Court of Appeal was of the view that the employee’s right to respect for a private life (on grounds of his sexual orientation) was not relevant here in terms of Article 8 ECHR as the indecent act in question was not of a private nature because it had been performed in a public toilet.

The right to privacy?

In particular, public sector employers or employers which discharge public functions will have to be aware of the consequences of Article 8 of the European Convention on Human Rights – the right to respect for a person’s private and family life. Unwarranted interference in a employee’s private life may cause the employer to find itself in a legal minefield. There can even be implications for free speech or freedom of expression (in terms of Article 10 ECHR) which could lead to an employee taking legal action against the employer (see Smith v Trafford Housing Trust [2012] EWHC 3221).

As a result of the Scotland Act 1998 and the Human Rights Act 1998, which implemented provisions of the ECHR directly into domestic law, the contract of employment is by no means immune from human rights considerations.

Private employers are also not exempt from the effects of the ECHR. They will be indirectly affected: the UK as a signatory to the Convention must ensure that human rights are adequately protected and this will extend to relationships between private individuals e.g. employers and employees.

The problem(s) with social media

In December 2018, Sky News reported that a Dundee United footballer, Jamie Robson had been subjected to disciplinary action for dressing in a racially offensive costume at a private party. Pictures of Mr Robson dressed in the offensive costume were posted on social media:

Dundee United defender Jamie Robson disciplined for blackface fancy dress
http://news.sky.com/story/dundee-united-defender-jamie-robson-disciplined-for-blackface-fancy-dress-11579477

With the explosion in the use of social media, there is now a much greater chance of employees being caught behaving in inappropriate ways or posting offensive comments online. In such an environment, employers will have legitimate concerns about the reputational damage done to their organisations as a result of employee misconduct which becomes widely publicised via social media platforms such as Facebook, Instagram or Whatsapp.

That said, however, we now live in a society where it is much easier for employees to be caught out in terms of misconduct committed outside of working hours. In Chapter 6 of Introductory Scots Law, I considered the implications of two Employment Tribunal judgements in relation to employee use of the popular social media platform, Facebook:

  • Stephens v Halfords plc ET Case No. 1700796/10 3rd November 2010 Torquay ET
  • Preece v JD Wetherspoons plc ET Case No. 2104806/10 18th January 2011 Liverpool ET

In Stephens, the employee was deemed to have been unfairly dismissed and was awarded compensation of over £11,350 (ouch!), whereas in Preece, the circumstances surrounding the employee’s use of social media did constitute grounds for a fair dismissal. Preece had signed the employer’s policy on the use of e-mail and social networking sites which contained the following warning that disciplinary action would be taken if comments were “….. found to lower the reputation of the organisation, staff or customers”.

In a more recent decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016, the Norwich Employment Tribunal held that an employee’s claims that she had  been unfairly dismissed and wrongfully dismissed regarding “derogatory” remarks (which she had made on Facebook) about her employer had not been proved. Mrs Plant, the employee in question, had been with the company for 17 years and had a spotless disciplinary record.  In December 2015, the employer had introduced a very robust social media which listed the types of online behaviour which could be regarded as misconduct. In particular, employees were reminded that:

In particular, employees were reminded that:

The document also reminds employees that conversations between friends on Facebook are not truly private and can still have the potential to cause damage, reminding employees that comments can be copied forward onto others without the
permission, it stresses the need to not rely on privacy settings.

Furthermore, the Employment Tribunal noted that the new policy stated:

“… that any breach of this policy will be taken seriously and may lead to disciplinary action under the respondent’s disciplinary policy. Serious breaches will be regarded as
gross misconduct and may lead to summary dismissal under the respondent’s disciplinary procedure
.”

The Employment Judge Postle concluded that:

The Claimant [Mrs Plant] was aware of the Policy and one assumes she read it, she must have been aware what was and what was not allowed. The Claimant would have been aware of the consequences if she breached that policy despite this her profile referred to her position within respondents as an operator and dogsbody, it was clearly a description of her job with respondent clear to see it was derogatory and insulting if not to the respondents certainly to her colleagues occupying the same position. There is then that reference to that bloody place and the need to hurry up and sue them and pissing myself laughing. In the absence of an adequate explanation from the Claimant which was sadly lacking the respondents were entitled to believe that these comments were aimed at the respondent. …

I repeat that it might be that one would dismiss and another would not dismiss. It
may be seen as harsh but the respondents taking account of the Claimants long service and clear record nevertheless dismissed for a clear breach of the Policy and that would fall within the range of a reasonable response open to an employer. The dismissal was therefore not unfair and the dismissal was not wrongful
. [my emphasis]”

A link to the full Employment Tribunal judgement can be found below:

Click to access Mrs_E_Plant_v_API_Microelectronics_Limited_3401454.2016.pdf

Bullying and harassment via social media platforms

Social media can also be used by both managers and employees to bully and harass colleagues. In the wake of the #MeToo and Time’s Up movements, employers that ignore allegations of sexual harassment are almost playing with fire if they allow the workplace to become a degrading, humiliating or offensive environment.

Employers should have a clear policy on social media use both within and outwith working hours. Fortunately, organisations such as the Advisory Conciliation and Advice Service (ACAS) are on hand to provide useful guidelines as to employers can develop a coherent social media policy:

http://www.acas.org.uk/index.aspx?articleid=3375

Once the social media policy has been formulated, it will be the responsibility of the employer to ensure that employees are aware of its contents and that they understand the consequences of any breach of the rules contained therein.

It’s my private life!

Another issue for employers to grapple with is the personal use by employees of the internet or telecommunications equipment during working hours. Employers may have very good reasons for monitoring internet use e.g. to assess whether work is actually being done properly and to ensure that employees are not doing anything inappropriate during working hours. That said, there is a balance to be struck between the employer’s legitimate interests and the employee’s right to privacy.

In Chapter 6 of Introductory Scots Law, I discussed the implications of the European Court of Human Rights’ decision in  Bărbulescu v Romania [2016] (Application No 61496/08). It is worth restating the facts of the case:

Bărbulescuthe employee had his contract terminated by his employer because he had used his professional Yahoo Messenger email account to send messages to his brother and his fiancée. The email account had been set up for the express purpose of communication with clients of the employer. This account was not to be used for personal purposes as per the employer’s internal regulations. Furthermore, the employee was informed that communications with clients would be monitored by the employer. The employee argued that his right to privacy under Article 8 of the European Convention on Human Rights had been breached, but his legal action before the Romanian courts was dismissed. Eventually, he took his case to the European Court of Human Rights in Strasbourg.

The Fourth Chamber of the European Court of Human Rights considered the question as to whether Bărbulescu had a legitimate expectation of privacy in relation to use of the email account?: its conclusion was that he did not.

Bărbulescu’s situation was different from two previous decisions of the European Court – Halford v United Kingdom (1997) and Copland v United Kingdom (2007) – where the employers appeared to permit (to a certain extent) employee use of office telephones for personal purposes. A further question pondered by the Fourth Chamber of the Court was that although the employer had forbidden the use of work emails for personal use, did Bărbulescu still have a legitimate expectation that his account was not being monitored? The Fourth Chamber was of the opinion that employers had a legitimate right to check (during working hours) that their employees were fulfilling their job. The employer’s monitoring of Bărbulescu’s email account was far from excessive and satisfied the proportionality test.

Bărbulescu Round 2 (5 September 2017)

Since the Bărbulescu decision in 2016, the Grand Chamber of the European Court of Human Rights has overruled the judgement of the Fourth Chamber of the Court in September 2017.

At the time of the original Bărbulescu decision, I stated that it did not give employers free rein to read the private emails of employees which they had sent using company accounts as some of the British media were reporting (e.g. the BBC; The Telegraph; and The Mirror). The original judgement was not a snoopers’ charter and the moral to be taken from it was that employers had to be very clear as to how they expected employees to behave in relation to facilities like professional email accounts and company telephones (whether landlines or mobiles) and the fact that these may be monitored. An employer who failed to lay down clear guidelines could be running the risk of breaching the duty of trust and confidence and Article 8 (the right to privacy) of the European Convention.

Bărbulescu v Romania [2017] 5 September 2017 the Grand Chamber of the European Court of Human Rights held that the employer had violated Bărbulescu’s Article 8 rights.

What are the implications of the judgement for employees and employers in the UK?

Clearly, the Grand Chamber’s judgement will most obviously be welcomed by employees as bolstering the right to privacy in the workplace.

Contracting States to the European Convention on Human Rights have a positive obligation or duty to ensure that the necessary conditions exist to ensure that there is respect for the individual’s right to privacy in terms of Article 8:

“These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [my emphasis]

The European Court of Human Rights did, however, acknowledge that Contracting States to the Convention do enjoy a “wide” margin of appreciation (or discretion) “in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace”.

The Grand Chamber went on to note:

“… the Court [the Grand Chamber] is at best concerned with the protection of a core or minimum level of private life and correspondence in the workplace against interference by a private law employer.”

Conclusion

It remains something of an urban myth that employees cannot be disciplined for misconduct committed outside working hours. In extreme cases, the employer will even be entitled to use the nuclear option of dismissal. Each case will turn on its own facts and a key issue to explore will be the impact that the misconduct has on the employment relationship. If out of hours misconduct causes damage to the employer’s reputation e.g. derogatory posts on social media or downright criminal behaviour, these could, in themselves, be compelling reasons for disciplinary action (up to and including dismissal).

It is highly advisable for employers to develop a range of coherent policies which address the issue of misconduct in and outside the workplace and to ensure that employees are aware of these.

The notion that employees have an absolute right to a private life is also questionable. As we have seen, in the Bărbulescu decision, employers should be mindful of minimum rights to privacy, but this does not mean that employees will automatically be able to cry foul if they discover that their internet and telephone use is being monitored in the workplace. Again, employers should ensure that they have policies in place to address this issue clearly and that employees are aware of any rules.

 

Copyright Seán J Crossan, February 2019