Employment Law Update – May 2016

Employment Law Update – May 2016

15th May 2016

Welcome to our Employment Law Update which is the first bulletin by our new Employment Solicitor, Julia Woodhouse. We are delighted that Julia, who has a wealth of HR and Employment law experience, has joined Brindley Twist Tafft & James LLP. The Bulletin covers the following:

  • Morrisons liable for an assault by an employee
  • Holiday pay and commission
  • Monitoring personal emails at work
  • The National living Wage
  • Transgender Staff: Government guide

Morrisons liable for an assault by an employee

The Supreme Court has ruled that the supermarket, Morrisons was liable for a physical assault by one of its employees.

Mr Mohamud stopped at a petrol station and enquired about printing some documents from a USB stick. Mr Kahn was working behind the counter at Morrisons and ordered him off the premises with a torrent of threatening and racist abuse. When Mr Mohamud returned to his car, Mr Kahn opened the car door and punched him on the head and continued to assault him.

As a matter of general law, an employer can be liable for the acts of its employees, provided it can be shown that the acts took place in the course of their employment. In this case, the violence was a re-enforcement of Mr Kahn’s order to leave and this was connected to his job. This was sufficient to make Morrisons liable for Mr Kahn’s acts.

Holiday pay and commission

In the case of Lock v British Gas, Mr Lock was employed as an energy trader and commission represented about 60% of his pay. When he was on holiday, he was paid his basic pay and commission based on his earlier sales; however, his commission payments were lower in the months which followed his holiday as he had been unable to generate sales whilst on holiday.

The issue here was whether the Working Time Regulations 1998 could be interpreted in line with EU law on the matter of calculating holiday pay. The Employment Appeal Tribunal upheld an earlier Tribunal decision that Mr Lock was entitled to commission as part of his holiday pay.

This is not surprising as it has been clear for some time that EU law requires that four weeks of annual holiday entitlement must be paid at a rate which reflects a worker’s normal remuneration. Despite this, it is understood that British Gas is seeking permission to appeal the recent ruling.

Pending a definitive ruling on the issues, uncertainty remains about how to deal with claims for underpaid holiday and how to calculate holiday pay going forward.

Monitoring of Personal Messages at Work

In the case of Barbulescu v Romania, the European Court of Human Rights decided on the right to privacy under the European Convention on Human Rights.

The employee, Mr Barbulescu, was dismissed for personal internet use at work which was in breach of the employer’s rules. As part of its investigation, the employer accessed intimate messages sent by the employee to his fiancée and his brother. The messages were used in disciplinary proceedings against the employee.

The European Court of Human Rights held that the monitoring of his internet usage and the use of the Yahoo Messages in disciplinary proceedings did interfere with his right to privacy but, in this instance, the employer’s actions were reasonable. This was because it was reasonable for the employer to check that Mr Barbulescu was completing work tasks during work time. The decision relied on the fact that Mr Barbulescu had told his employer that the account contained only client-related communications.

The case received a great deal of media attention and some of it gave the misleading impression that the decision gives employers the unfettered right to check on employee’s personal emails. However, the decision does not overrule previous caselaw from the European Court of Human Rights on employees’ reasonable expectation of privacy and the need for any interference in that privacy to be reasonable.

National Living Wage

Employers should be preparing for the introduction of the National Living Wage which comes into effect from 1st April 2016. The new National Living Wage of £7.20 per hour will be introduced for workers aged 25 and above. The pre-existing National Minimum Wage will continue to apply to workers aged 24 and under.

New Government Guide: Transgender Staff

The profile of Transgender issues has been raised over recent times, with the release of the film “The Danish Girl”.

It is therefore timely that the Government Equalities Office has recently published a new guide for employers on recruitment and retention of transgender staff.

It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also intended as a guide for the managers and transgender staff themselves.

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