Employment Law News for 2016


A belated happy new year to you all! To celebrate the beginning of 2016 we're cantering through some key employment law news stories from the past few months below. As always, please do get in touch with a member of the team if you'd like to discuss any of the issues raised.

1. My boss can read my WhatsApp messages?!

You will no doubt have seen the explosive headlines in the newspapers recently thanks to a Romanian case in the European Court of Human Rights regarding an employer's dismissal of an employee for time spent at work on personal communications, and the resulting furore over whether this was an invasion of the employee's privacy.

Whilst the papers would have us believe that nothing is sacred any more (not even Snapchat), the case is not as controversial as it may appear. Firstly, the employee was sending personal messages on a company device and, more to the point, on a company account. Secondly, this was in flagrant breach of contract of the employer's policies, and the employee was on notice that this was not appropriate behaviour.

The employer did not go looking for a breach in this case – they discovered it accidently – and, when approached, the employee dishonestly denied any wrongdoing in writing (well, in for a penny…).

Whilst the European Court of Human Rights acknowledged that the employee's Article 8 right to respect for his private life and correspondence was at issue, it determined that the employer had a right to take reasonable steps to confirm that the employee was working during working hours.

The key lesson to be learned here is to be clear in employees' contracts and to have a publicised policy in place that (1) tells employees whether they can or cannot use work time and devices for personal communications, and (2) puts employees on notice that the company may monitor communications to ensure compliance.

2. Time to pay up

Where an ex-employee brings an unfair dismissal claim, he is under an obligation to mitigate his financial losses. Usually this equates to looking for a new job.

In the Employment Appeals Tribunal (EAT) case of Cooper Contracting Limited v Lindsey, the employer appealed the remedy that the Employment Tribunal (ET) awarded Mr Lindsey, who had turned down a new and healthily remunerated role not long after being unfairly dismissed, opting to be his own boss for lower pay. They argued that by doing so, he had failed to mitigate his losses.

The EAT disagreed with the employer and dismissed its appeal, setting out some useful pointers on mitigation of loss. The EAT stressed that the ET’s role is not to punish the Claimant for his losses – as though it were his fault.  They reminded themselves that the employee has been unfairly dismissed and therefore should not be made to prove that they did everything possible to mitigate their losses.
The EAT said the principle was about whether Mr Lindsey had acted unreasonably in his decision to turn down the better paid job, and that this was different to having acted "not reasonably". Whether or not a Claimant has acted unreasonably is a question for the ET, who will consider the individual Claimant's motivations and circumstances.

In this case, Mr Lindsey's decision to become self-employed, rather than take the job he was offered, did not meet the standard of "unreasonable". Mr Lindsey had clear and cogent reasons for his choice and therefore there was no failure to mitigate in the circumstances.

This decision is particularly relevant at the moment due to another legal change that's on its way in: the Government is planning to bring in penalties for unpaid ET awards in April this year, as reported in Hansard. The move will see those who fail to pay ET awards being issued with a "warning notice". If no cash is forthcoming, a "penalty notice" in an amount equal to 50% of the unpaid award will be issued (subject to a £5k cap). Note that the penalty is payable to the Secretary of State and not to the Claimant, which might result in a keen focus on enforcement as a means of generating income.

3. Risky references

If ever you needed a reason to have a company policy that references should only confirm the basics of the employee's time and role with you (with the exception of the financial services sector given FCA requirements), it's the recent case of Pnaiser v NHS England and Coventry City Council.

Ms Pnaiser, a good performer with a disability which resulted in a number of periods of disability related absences, left Coventry City Council with an agreed form of reference set out in a settlement agreement. When she obtained an offer of employment with NHS England, Coventry City Council (through a Ms Tennant) gave the agreed form of reference and offered to discuss further on the telephone. A Professor Rashid was told by Ms Tennant about Ms Pnaiser's periods of absence and she suggested in conversation with him that the Claimant would not be up to the role. The job offer was subsequently withdrawn and Ms Pnaiser brought a claim against both parties to the effect that (1) the giving of the reference by the old employer, and (2) the withdrawing of the offer by the new employer, amounted to discrimination arising out of the Claimant's disability.

The EAT agreed, and sent the case back to the ET to determine remedies. The comments by Ms Tennant were made regarding the Claimant's absences, which were related to her disability, and the offer was withdrawn as a result of the same.
The age old adage, "if you don't have anything nice to say…" springs to mind, and the case is a reminder that references given over the phone can have significant consequences.

4. Zero tolerance

The Government has been gearing up to get tough on Zero Hours contracts for a while and, finally (some might say), the sanctions have some bite.

The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015 (that's "ETZHCRR" for, um, short) mean that Zero Hours Workers now have the following protection:

  • The dismissal of a Zero Hours Worker will be automatically unfair if the reason for the dismissal was that the worker fell foul of an (unlawful) prohibition on working for another employer;
  • Crucially, there is no qualifying length of service for this claim – the Zero Hours Worker has this protection from day one; and
  • If the employer doesn't go so far as to dismiss the Zero Hours Worker for their breach, note that subjecting them to a detriment if they undertake work for another business is also unlawful.

Any business that utilises the option of Zero Hours Workers should carefully consider the implications here, and we recommend you take legal advice prior to considering dismissal.

5. Looking for a home

And finally, there is much discussion in the country's courts and tribunals at the moment about reform and the ETs are part of this discussion.  As well as what an ET fit for 2016 should look like, the fundamental question of where the ETs belong is being considered.

Currently the country's various ETs and the EAT are rather isolated – not formally part of the civil courts structure, nor properly within the tribunals' system, but somewhere in between.

Lord Justice Briggs was tasked by the Lord Chief Justice and the Master of the Rolls with the unenviable task of reviewing the civil courts structure in July 2015, and he recently published and invited views on an interim report (available here).

The interim report outlines the options as follows:
a) "To leave the ET (and the EAT) where they are ...
b) To bring both tribunals broadly under the wing of the structure of the civil courts.
c) To make both tribunals part of the Tribunal Structure ..."

For various reasons (including that it is the preference of the Presidents of both the ET and the EAT), option (b) is the tentative frontrunner, so watch this space.