• 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.

The post Employment Law Update – October 2017 appeared first on Brindley Twist Tafft & James.

• Citysprint – bicycle couriers are workers
• Working Time – rest breaks
• Settlement agreements – mental capacity required

Citysprint – bicycle couriers are workers

Following in the trail of the case brought by two Uber drivers, a recent case has found that a bicycle courier is a “worker” of Citysprint.

The contractual documents referred to the courier as a self-employed contractor but the Employment Tribunal found that this did not reflect the day-to-day reality of the relationship.

The reality was that the courier was integrated into Citysprint’s business. She was expected to work when she said that she would; she was instructed to wear a uniform and smile; she was given direction during her time on her circuit; and she was told how much she would be paid and when.

As a result, the courier succeeded in her claim for holiday pay – holiday pay would not have been due if she were self-employed.

This is another reminder to employers that the mere fact of classifying someone as self-employed does not mean that an Employment Tribunal will necessarily agree.

Employers who fail to recognise workers when they should do, risk storing up claims for unpaid holiday and possible breach of the National Minimum Wage rates, amongst other claims. This could be financially damaging for an employer where it has failed to recognise the rights of a large proportion of the workforce and it is faced with multiple claims.

Working time – rest breaks

In accordance with the Working Time Regulations 1998, workers are entitled to a 20 minute rest break if they work more than six hours per day.

A recent court decision has held that workers can claim that they have been denied a rest break even where they have not asked for one.

The case concerned a worker who had been contracted to work an eight and a half hour shift which included a half hour rest break for lunch. He was subsequently told that he would, instead, work for eight hours without a break and then leave early.

The worker made a claim that he had been refused a rest break. The Employment Appeal Tribunal decided that the employer had a duty to give the worker the opportunity to take a rest break.  If the employer failed to put into place working arrangements to allow the taking of 20 minute rest breaks, as in this case, this would be a refusal of the entitlement.

A successful complaint will result in the Tribunal making a declaration to this effect and it may also award compensation against the employer.

Settlement agreements – mental capacity required

The most usual way of settling a claim before it reaches the Employment Tribunal is by a settlement agreement. A number of conditions must be met for such an agreement to validly settle claims, including the requirement for the employee to receive independent legal advice about the terms and effect of the agreement.

The Employment Appeal Tribunal was asked to consider whether a Tribunal had jurisdiction to set aside a settlement agreement as invalid because of the lack of mental capacity of the employee. The Employment Appeal Tribunal found that the Tribunal was entitled to set aside a settlement agreement.

Employers should therefore tread carefully before entering into a settlement agreement where they have doubts about the employee’s state of mind; otherwise employers may pay over monies under a settlement agreement but still find that they could be sued.

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.

The post Employment Law Update – January 2017 appeared first on Brindley Twist Tafft & James.