The Grand Chamber of the European Court of Human Rights has decided that an employee’s human rights were breached when his employer monitored and viewed his personal messages to his brother and fiancé on his work Yahoo messenger account during working time and dismissed him as a result.

Facts

Mr Bărbulescu was employed in Romania by a heating company as an engineer in charge of sales. At his employer’s request, he set up a Yahoo Messenger account to deal with client enquiries. The company’s policies strictly prohibited any personal use of its IT equipment and the company circulated a notice reiterating this. The notice included the following statement:

“Come to work to deal with company and professional matters, and not your own personal problems! Don’t spend your time using the internet, the phone or fax machine for matters unconnected to work or your duties. …The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault! Your misconduct will be carefully monitored and punished!”

However, neither the policy nor this notice stated expressly that the content of communications would be monitored or intercepted.

The employer later informed Mr Bărbulescu that it had monitored his Yahoo Messenger communications over the course of a week and that it considered he had used it for personal purposes in contravention of the employer’s IT usage policy. Mr Bărbulescu replied in writing that he had only used it for professional purposes. The employer then produced a 45-page transcript of his Messenger communications over the week in question, which included the text of the messages he had exchanged with his brother and his fiancée during that time, containing intimate personal information about his health and sex life. It also contained the text of five short messages exchanged with his fiancée using his personal (non-work-related) Yahoo Messenger account.  The employer dismissed Mr Bărbulescu for unauthorised personal use of the internet. 

Mr Bărbulescu brought a claim against the Romanian government in the European Court of Human Rights (ECtHR), arguing that it had failed to protect his rights to privacy and correspondence.

Article 8(1) of the European Convention on Human Rights (ECHR) states that “everyone has a right to respect for his private and family life, his home and his correspondence”.

The ECtHR decided that while Article 8 was applicable, the monitoring of Mr Bărbulescu’s internet usage and the use of the Yahoo Messenger communications in disciplinary proceedings was a proportionate interference with his rights.

Mr Bărbulescu appealed to the Grand Chamber of the ECtHR.

Decision

The Grand Chamber upheld the appeal and found that Mr Bărbulescu’s Article 8 rights had been infringed.

As for whether there was a reasonable expectation of privacy in this case, the court noted that the employer had strictly prohibited personal use of its IT equipment, and to enforce this ban, it had set up a system for monitoring employee’s internet use, as well as the content of communications. While Mr Bărbulescu was informed of the prohibition on personal use of equipment, it does not appear that he was informed in advance of the nature and extent of the monitoring, or the possibility that the employer might have access to the content of his communications.

What does this mean for employers?

The introduction by an employer of measures to monitor correspondence and other communications should be accompanied by sufficient safeguards against abuse. The following factors are relevant:

• Notification about monitoring of communications. In order to comply with Article 8, unequivocal notification should be given in advance. In this case, Mr Bărbulescu did not appear to have been informed in advance of the extent and nature of the monitoring activities, or of the possibility that the employer may access the actual content of the messages.
• The extent of the monitoring and the degree of intrusion into the employee’s privacy. A distinction should be made between monitoring the flow of communications (that is, internet and email traffic or usage) and of their content.
• Whether the employer has provided legitimate reasons to justify monitoring the communications and their actual content. Monitoring actual content requires weightier justification.
• Whether it would have been possible to establish a monitoring system based on less intrusive methods. In other words, could the employer’s desired aim be achieved without accessing the full content of the employee’s communications.
• The consequences of the monitoring for the employee, and the use made by the employer of the result of the monitoring; in particular, whether the results were used to achieve the employer’s desired aim.
• Whether the employee had been provided with adequate safeguards, especially where the monitoring was intrusive in nature.

Comment

There is likely to be much interest in this case, as the ECtHR’s original decision in the case was seen by many as an employer-friendly decision which allowed a degree of snooping on employees’ personal emails. The reality was somewhat different. Ultimately, the Grand Chamber decided that the Romanian courts had fallen short of their positive obligation to protect the employee’s Article 8 rights. The employee’s reasonable expectation of privacy was not clear cut, because he had been informed of the employer’s strict internet usage policy, and had even signed a copy of the company notice reiterating the policy, shortly before the disciplinary proceedings. Crucially, however, the employee had not been told expressly that the content of his personal communications on work IT equipment could be monitored at any time. It was this failure to notify the employee which was one of the key factors influencing the Grand Chamber’s decision.

In the UK, this decision is of limited relevance because this area is already heavily regulated by existing legislation, including the Data Protection Act 1998 (DPA 1998) and the Regulation of Investigatory Powers Act 2000. In addition, the Information Commissioner’s Employment Practices Code, recommends that, before embarking on monitoring of communications, employers carry out an impact assessment to demonstrate that they have achieved the correct balance between protecting workers’ privacy and the interests of the business. Generally, it is much more likely that workers would be held to have a reasonable expectation of privacy when accessing a personal email account, even where they are using the employer’s equipment to do so.

The Information Commissioner has published a blog demystifying the use of consent under the EU’s General Data Protection Regulation (GDPR).

The Commissioner confirms that “…you’ve got to make sure the consent you’ve already got meets the standards of the GDPR. If not, you’ll have to refresh it” but, highlights that consent is not the only way in which to comply with the GDPR as there are five other ways to lawfully process personal data.

Click here to read more.

Acas has published guidance for employers on how to support parents with premature or sick babies. The recommendations for employers include:

• Ensuring that staff are made aware of their statutory entitlements, including shared parental and paternity leave.
• Handling communications sensitively, ensuring that staff are happy to be contacted and are comfortable with colleagues knowing about their situation.
• Being receptive to flexible working requests, as the baby may need follow up hospital appointments or their partner may need additional support throughout the difficult time.

 Click here to access the guidance.

The Parental Bereavement (Pay and Leave) Bill 2017-19 was published on 13 October 2017. This is likely to become law. The proposed legislation would give employees who lose a child below the age of 18 (including a still birth after 24 weeks) the right to:

• At least two weeks’ leave (irrespective of their length of service).
• At least two weeks’ statutory bereavement pay. The Bill entitles employers to reclaim some, if not all, payments from the Government.
• Employees will be protected from detriment, redundancy and dismissal as a result of them taking bereavement leave.

The regulations are expected to be introduced in 2020.

Acas has published guidance for employers on how to prevent pregnancy and maternity discrimination at work. Acas recommends several measures, including:

• Developing a policy that outlines the responsibilities and rights of pregnant employees (or those on maternity leave), including assurances that they will not be dismissed or made redundant as a result.
• Ensuring that employees on maternity leave are aware of all promotion and training opportunities.
• Making reasonable adjustments to protect the health and safety of a pregnant employee and their unborn child.

Acas published its new guidance after receiving 14,000 calls about pregnancy and maternity discrimination in the last year (a 10% increase compared to the previous year).

A recent research report has suggested that employers are at risk of employing victims of modern slavery due to the complexity of the modern labour market. According to the report, current modern slavery checks are not “fit for purpose” as they fail to monitor workers throughout the “labour supply chain”.

The report follows statistics released by the National Crime Agency that showed 3,805 people were referred for help due to slavery and human trafficking concerns in the UK in 2016 – a 50% increase in referrals in the last three years.

The Home Office has published updated guidance on slavery and human trafficking in supply chains.

Click here to read more.

Research undertaken by commercial law firm EMW, has revealed that only 8,700 new parents made use of the shared parental leave system in the last year, accounting for less than 1% of those that were eligible.

Commenting on the latest figures, EMW attributed the low uptake numbers to a “cultural stigma” surrounding men who decided to take time off work to care for their children and their concern about the impact a lengthy period off work might have on their careers. In addition, EMW suggested that parents felt as if they could not afford to take the time off work due to the additional financial pressures of parenthood.

The Government will increase the national minimum wage from April 2018 to the following rates:

• Apprentices: £3.70 an hour;
• 16-17 year olds: £4.20 an hour;
• 18-20 year olds: £5.90 an hour;
• 21-24 year olds: £7.38 an hour.

The national living wage for those aged 25 and over will also increase from £7.50 an hour to £7.83 an hour from April 2018.

The tax free personal allowance will rise from £11,500 to £11,850 from April 2018. The higher rate tax threshold will rise to £46,350. 

Acas has published new guidance for employers on how to identify and support people who face sexual harassment at work. Acas highlights a number of behaviours that could be interpreted as sexual harassment, including the display of explicit images, verbal or written sexual comments or innuendos, unwanted touching and inappropriate jokes or questions about a colleague’s sexual behaviour. In addition, the report encourages employers to have sexual harassment policies in place to ensure any incidents are quickly resolved and explains what action to take when historical allegations are reported.

Around 150,000 workers have received a pay rise following increases to the voluntary living wage (VLW) rate. The amount of the VLW is set by the Living Wage Foundation and is paid by around 3,500 businesses. It has risen to £8.75 an hour (an increase of 3.6%). Notable companies who have already opted to pay the VLW include Asda, Google and Ikea.

The Government has resumed minimum wage enforcement for healthcare providers.

The new Social Care Compliance Scheme (SCCS) will enable healthcare providers to identify what they owe to workers and (if identified as having failed to pay the minimum wage) will give them three months to pay back pay. As the compliance scheme is voluntary, employers who choose to opt-out will be subject to HMRC’s normal enforcement regime (although HMRC has strongly urged providers to make use of the scheme, especially those that have already been identified as failing to pay the minimum wage to sleep-in staff).

The Information Commissioner’s Office (ICO) has issued new guidance for small businesses on the new General Data Protection Regulation (GDPR) which will take effect from 25 May 2018. The new telephone advice line will assist small businesses in complying with the new provisions in the GDPR.

Most employers have passed their automatic enrolment staging date and are automatically enrolling new workers into a pension scheme as a matter of routine. However, employers need to be aware of two important deadlines: a step-up of the minimum defined contribution rates; and cyclical automatic re-enrolment, every three years, of those who have opted-out of membership of the scheme.

Defined Contribution rates

From 6 April 2018, the minimum contributions required to meet automatic enrolment obligations to a DC automatic enrolment pension scheme will increase.

Employers that have not already done so should check their DC pension contribution rates against the minimum rates required from 6 April 2018.

In order to meet the new requirements, some employers will need to increase their contributions, or may wish to increase workers’ contributions, or both, from 6 April 2018.

An employer wishing to increase workers’ contribution rates should take legal advice on the position under their employment contracts.

Cyclical automatic re-enrolment

In addition to their ongoing duties for the enrolment of new workers, employers are now being affected by the cyclical automatic re-enrolment requirement, with the largest employers affected first. This is a requirement, every three years, for every employer of UK workers to re-enrol eligible workers who have opted out of, or have otherwise voluntarily left, their automatic enrolment pension scheme. Workers must then opt out again if they still do not want to be a member.

The automatic re-enrolment exercise must be carried out every three years.

For those workers who have to be re-enrolled, the procedure is in many ways the same as for the initial automatic enrolment exercise but on a much smaller scale there are, however, some important differences: all of the employer’s re-enrolments must take effect from a single date and there is generally no option to postpone automatic re-enrolment.

As for automatic enrolment, employers must declare to the Pensions Regulator that they have complied with their re-enrolment duties.

Facts

Ms Agoreyo was an experienced primary school teacher for the London Borough of Lambeth. She taught a class of up to 29 five and six year old children, two of whom exhibited extremely challenging behaviour.

Allegations were made against her that she had used unreasonable force towards one of these two children on three occasions, essentially that she had “dragged” a child out of the classroom or along a corridor and that she had carried a child out of the classroom. Two of these instances had been looked into by the Head shortly afterwards who found that Ms Agoreyo had used reasonable force.

The Executive Head of the school then informed her that she was suspended in light of these allegations. She almost immediately asked if she could submit a resignation letter and the Executive Head agreed.

A letter of suspension setting out the allegations stated:

“The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”

Ms Agoreyo challenged the lawfulness of her suspension as being a repudiatory breach of the implied duty of trust and confidence. She did not argue that the allegations against her should not be investigated, but that suspension was not reasonable or necessary in order for the investigation to take place.

The High Court criticised the process for a number of reasons:

• there was no evidence of any attempt to ascertain Ms Agoreyo’s version of events, or the Head’s knowledge of the events, prior to the Executive Head taking the decision to suspend;
• there was no evidence of any consideration of alternatives to suspension; and
• the letter did not explain why an investigation could not be conducted fairly without the need for suspension.

These factors, he said, led to the conclusion that suspension was “largely a knee-jerk reaction”. Suspension against this background was sufficient to breach the implied term of trust and confidence, particularly given that the Head had previously investigated two of the incidents and had not considered them worthy of disciplinary action.

Comment

This case reinforces the great care an employer must take when considering whether to suspend an employee in the wake of alleged misconduct. Even (or especially) in cases where the conduct is extremely serious, suspension can never be a knee-jerk reaction and the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be any alternative. Such considerations should be fully documented. Including a statement in the suspension letter that suspension is a neutral act and implies no criticism of the employee is no substitute. Including an express right to suspend the employee in an employment contract may also assist in such a situation.

The Institute for Employment Studies has published a new study that suggests managers are failing to provide adequate support to transsexual employees at work. According to the Acas-commissioned study, employers experience “discomfort” when using the term transsexual as there is a lack of knowledge around the experiences of gender non-conforming people in the workplace.

In response to the study, Acas has issued new guidance for employers.  The guidance suggests a number of measures, including the introduction of clear policies, the provision of quality diversity and equal opportunities training for line managers, and the use of LGBT champions to raise awareness of transsexual issues at work.

Click here to read the guidance

Acas has published guidance to assist employers in supporting staff with mental health issues. The guidance suggests how employees might spot signs of mental ill-health and provides employers with a number of recommendations on how to discuss mental health at work.

Click here to access the guide.

Facts

Ms Pillar was employed by NHS 24 as a Nurse Practitioner. Her work consisted of taking telephone calls from members of the public and triaging them by asking appropriate questions to determine their medical priority and the appropriate clinical outcome.

She was dismissed for gross misconduct following a Patient Safety Incident (PSI), after she failed to ask the appropriate questions and referred a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999.

She had been responsible for two earlier PSIs because of her triage decisions. Neither of those earlier PSIs had led to disciplinary action. They were instead dealt with by providing a development plan and additional training to Ms Pillar. They were, however, included in the report compiled by the investigating officer for the purpose of the disciplinary hearing that led to her dismissal.

The Tribunal

Ms Pillar presented a claim of unfair dismissal, arguing that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.

The Employment Appeal Tribunal (EAT) found that the dismissal had been fair but acknowledged that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area.

Comment

This case is a useful clarification of the extent to which past conduct can be taken into account by an employer when deciding to dismiss. The fact that the earlier incidents were addressed solely through training and development did not, in the EAT’s view, create any expectation that future incidents would not be regarded more seriously.

The EAT highlighted that it is for the investigator to put together all relevant information and for the decision-maker to decide what to do with it. It is the decision-maker’s state of mind that should be considered when a tribunal is assessing whether dismissal was within the range of reasonable responses, and the reasonableness of an investigation is relevant only where it results in an absence of proper information being put forward to the decision-maker.

UK industry would find it “near impossible” to recruit low-skilled EU workers post-Brexit, if rules governing access to the UK jobs market for non-EU migrant workers were extended to EU citizens. According to the Institute for Public Policy Research (IPPR), such an extension would result in low-skilled vacancies being closed to EU nationals, while they would also be restricted from applying for jobs that pay less than £30,000 a year. The service, manufacturing and agricultural sectors would be impacted the most by the proposals, with EU and EEA migrants accounting for more than 90% of the current workforce in these sectors.

Accommodation for Employees

 The Accommodation Offset is a figure set by the Government each year.  It is the limit on the amount that can be considered as a value for provision of accommodation by an employer for an employee. 

 The current (2017/18) accommodation rate is £6.40 per day or £44.80 per week.

 What accommodation is included?

In summary, the employer is providing accommodation if any of these apply:

• the accommodation comes with the job;
• the employer owns or rents the property the worker lives in; or
• the employer gets a payment from the worker’s landlord.

 What counts as accommodation?

Accommodation charges include any services provided in connection with the accommodation (e.g. oil, gas, laundry etc.). 

 It doesn’t matter if the cost of the accommodation and/or services is taken from the worker’s wages beforehand or if the worker pays the cost after they get their wages.

 The effect on minimum wage

If the employee is offered accommodation under the terms set out above and the cost of accommodation (including services) is above the accommodation rate i.e. the total cost of accommodation and services per week is more than £44.80 then this has an impact on National Minimum Wage (NMW).  Potentially, an employer has to increase the worker’s hourly rate of pay to comply with legislation.

 Sanctions

Employers should be wary of paying less than the NMW as the HMRC penalty for this can be up to 200% of the underpayment, up to a maximum of £20,000 per employee, and HMRC can publicly name and shame organisations that fail to pay NMW. It is also potentially a criminal offence.

 If you are an employer offering employees accommodation that costs more than £44.80 a week please contact us to undertake the necessary calculations to ensure that you comply with NMW.