In a relatively quiet period for employment law developments I would like to take this opportunity to remind my eager readers about the important changes which are on the way concerning data protection.
The Data Protection Bill, which has started its parliamentary process, will provide "a comprehensive and modern framework for data protection in the UK". It will replace the Data Protection Act 1998 and supplement the EU’s General Data Protection Regulation (GDPR) which becomes effective on 25 May 2018.
Brexit is unlikely to impact the way the rules develop as the aim appears to be to ensure that the UK has a regime which permits an easy flow of data with the EU after the UK leaves.
All businesses and other data processors need to be considering how they will comply with the new regime.
Employee data is one element of this, albeit an important one. Issues such as employee consents and data protection policies in staff handbooks need reviewing. However, this should be done as part of the overall compliance assessment and its impact on internal processes, policies and procedures for holding and using personal data.
In later Newsletters I will provide some general guidance on the specific implications of the new regime for employee data, but I encourage those with HR responsibility within their organisations to connect with the overall review process that should be under way.
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The Government has launched the first stage of a refund scheme for employment tribunal fees. The opening phase of the scheme, which lasts for four weeks from when it was announced, involves up to around 1,000 people being contacted individually and given the chance to apply for a refund. The full scheme is to be opened up in the coming weeks, with further details to be announced. Successful applicants for refunds will be paid interest at a rate of 0.5% per annum.
At the start of 2016 I reported on the case of Bărbulescu v Romania (61496/08 2016 ECHR 61). I confidently announced that, despite some excited press reports, the decision had not changed the law in any way, that it did not create an unfettered right for an employer to ‘snoop’ on an employee’s emails and that neither did it give an employee an absolute right of privacy. Rather, I said, proportionate interference in an employee’s privacy is permissible, provided the employer has a robust set of email, internet and social media policies, giving the employee a reasonable expectation that usage of company systems may be monitored.
Imagine my surprise, then, to hear that the Grand Chamber of the European Court of Human Rights (ECtHR), the ultimate appellate body in the ECtHR, has changed the decision.
Once again, I do not think it has changed the law, though. Rather, on the facts of this case, it has decided that the monitoring was not, in fact, proportionate.
The employer had monitored personal messages sent on a work-related Yahoo Messenger account. As part of its investigation into whether its email usage policy had been breached, it accessed intimate messages sent by the employee to his fiancée and his brother and then printed them and used in the disciplinary proceedings (and the subsequent court case in which the employee challenged his dismissal).
The Grand Chamber concluded that insufficient safeguards against abuse had been put in place. Specifically, the employee had not been informed of the nature and extent of the monitoring, or of the possibility that the employer may access the actual content of messages. The employee's right to respect for his private life and correspondence was not adequately protected. (Bărbulescu v Romania (Application no. 61496/08) 2017 ECHR 742.)
Ms Jhuti, a Royal Mail employee, made a protected disclosure to her line manager. The line manager, motivated by the disclosure, deliberately misled the investigating manager in a disciplinary case against Ms Jhuti so that she dismissed her for poor performance.
The Employment Appeals Tribunal (EAT) decided that both the reason and motivation of the decision maker and the line manager had to be taken into account and could be attributed to their employer.
The Court of Appeal held otherwise. In determining the reason for the dismissal, the tribunal need only to consider the mental processes of those taking the decision (although one of the judges wondered if the position would be different if it was the CEO who deliberately manipulated the dismissal decision). (Royal Mail Ltd v Jhuti 2017 EWCA Civ 1632.)
The ‘Vento bands’ set out the potential levels of compensation for injury to feelings that will be awarded in successful discrimination cases.
Following a consultation, they have been reviewed and the new bands, applying to claims presented on or after 11 September 2017, are:
- A lower band of £800 to £8,400.
- A middle band of £8,400 to £25,200.
- An upper band of £25,200 to £42,000.
In NHS 24 v Pillar (UKEATS/0005/16) an employment tribunal decided that an investigation of a gross misconduct allegation should not have included details of previous similar incidents which had been addressed through training rather than disciplinary action.
The EAT disagreed. Since the tribunal had concluded that the decision to dismiss, which had taken those previous incidents into account, was within the range of reasonable responses, it was perverse of it to find that the dismissal was procedurally unfair because the investigation had been, in effect, too thorough.
This was not the same as basing a dismissal on an expired warning, since expiry creates an expectation that the previous incident will not form the basis of a decision to dismiss. Here no expectation either way had been created following the earlier incidents.
I still encourage caution in these sorts of situations. It would normally be advisable to consider whether dismissal is the necessary sanction irrespective of the earlier incidents, and, if so, make that clear in the dismissal letter.
The Department of Transport started an investigation into a misconduct allegation against Mr Ramphal relating to his expenses and his use of hire cars.
The investigation officer, described as 'inexperienced in disciplinary proceedings', received advice from the HR department throughout the preparation of his report. His first draft report considered Mr Ramphal's actions to constitute only misconduct, with a consequent and limited recommendation of a final written warning. The final report, however, with input from HR, concluded that Mr Ramphal was in fact guilty of gross misconduct and recommended summary dismissal.
The EAT, reversing the decision of the employment tribunal, held that HR's input went beyond giving advice on procedure, and appeared to have influenced and encouraged the investigation officer to alter his views on both culpability and credibility. It was disturbed to note ‘the dramatic change' in his approach following HR's intervention and held that HR’s advice should not extend to issues of credibility and culpability. (Ramphal –and- Department of Transport UKEAT/0352/14/DA.)
The Parental Bereavement (Pay and Leave) Bill 2017-19 was published on 13 October 2017. Whilst it is a Private Members' Bill, it has government backing so is likely to become law, but probably not before 2020.
It will allow the Secretary of State to make regulations to 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 per child (irrespective of their length of service); and
- at least two weeks' statutory bereavement pay at the prescribed rate (or 90% of their average earnings if lower), some or all of which may be reclaimable by the employer from the government.
Employees would be protected in the usual way from detriment, redundancy and dismissal as a result of taking bereavement leave.
To determine whether and who might transfer under TUPE in a ‘service provision change’ situation (outsourcing etc.) it is necessary under TUPE rules to identify whether there is an organised grouping of employees undertaking set of activities, and then determine what the principal purpose of that organised grouping is. If the services which are transferring are the principal purpose of the grouping, then all of the employees in the grouping transfer under TUPE.
The EAT’s decision in Tees Esk & Wear Valleys NHS Foundation Trust v Harland and others (UKEAT/0173/16) provides guidance on the question of principal purpose.
A patient of the Trust suffered severe learning difficulties and needed extensive nursing care. He lived in a building of flats which hosted others requiring specialist care. His care initially involved a 27-strong team of carers, but as his condition improved that reduced to 11 people who worked flexibly, caring for him and 17 other residents of the building. Eventually he needed one-to-one care only during the day and rarely any assistance at all during the night. The staff on duty at this time would care for other patients.
At this point a new company took over the one individual’s care from the Trust. Would TUPE then operate to transfer any employees to the new company? The employees involved did not want to move and the new company preferred not to take them. The Trust, on the other hand, saw it differently.
The employment tribunal concluded that the 11 employees involved in providing the care were organised (deliberately) into an organised grouping of employees to care for the individual and had been so organised for some 10 years. However, as his needs accounted for around 125 hours out of 375 hours worked by those 11 employees at the point of potential transfer, the principle purpose of the organised grouping had become diluted and was no longer the one individual’s care. There was no transfer.
The EAT agreed and commented that (i) the transferor’s intention as to principal purpose was irrelevant and, (ii) the assessment of the principal purpose should not be on a historical basis, but based on the facts applying immediately before the change of provider.