Employment Law Update – October 2017

3rd October 2017

Welcome to our Autumn Employment Law Update which provides an update on the following areas:

• Suspension – is it a neutral act?

• Voluntary overtime and holiday pay

• Monitoring workers’ emails

Suspension – is it a neutral act?

 The High Court in Agoreyo v London Borough of Lambeth was asked to consider whether the employer’s act of suspending an employee was a breach of contract. The case concerned a teacher who had used a degree of force to secure behavioural compliance of two children. She was immediately suspended without the chance to respond and no alternatives to suspension were considered.

The School stated that the suspension was pending an investigation and that it was a neutral act.

The Court held that suspension was not a neutral act, particularly in the case of a vocational job, such as a teacher. It was found that it was a knee jerk reaction and amounted to a breach of trust and confidence.

Employers should therefore carefully consider whether it is appropriate in each instance to immediately suspend an employee when allegations arise.  Employer should avoid implementing suspension as the default position, without considering alternatives.

 

Voluntary overtime and holiday pay

 In Dudley Metropolitan Borough Council v Willetts, the Employment Appeal Tribunal (EAT) found that voluntary overtime payments had to be taken into account when calculating holiday payments.

The workers had set contractual weekly hours and in addition, they could perform overtime if they so wished; however, their employer, Dudley MBC could not require them to work this overtime.

The EAT found that holiday pay must correspond to “normal remuneration” so as not to discourage workers from taking leave. For a payment to count as “normal”, it must have been paid over a sufficient period of time, on a regular or recurring basis which was the case for most of these workers.

It is important to note that this case does not establish that all voluntary overtime must be included in the calculation of holiday pay; where overtime is rare or occasional, it is unlikely to form part of normal remuneration.  It should also be noted that the requirement to calculate holiday pay on the basis of normal remuneration only relates to four weeks holiday in a holiday year (which is less than the statutory minimum of 5.6 weeks per holiday year).

Monitoring workers’ emails

In the 2016 case of Barbulescu v Romania, the Chamber of the European Court of Human Rights (ECHR) decided that a Romanian employer had acted lawfully when it monitored an employee’s Yahoo messenger account.

However, an appeal to the Grand Chamber of the ECHR has overturned this decision. The crux of the decision is that employees have a right to respect for privacy in the workplace and if an employer wants to monitor their emails, this must be made clear to the employees but it stopped short of saying that they had to consent. In this instance, although Mr Barbulescu knew that it was prohibited to use work computers for personal purposes, he had not been informed that the employer was monitoring his communications.

The ECHR found that there was a failure to strike a fair balance between the employer’s and the employee’s interests, in breach of Article 8 of the Human Rights Act 1998. Consequently the employee was entitled to compensation.

If you have any employment law queries, please contact Kerry Hudson on kerry.hudson@bttj.com or 02476 531532.

 

This Bulletin is not intended to provide advice.