It’s been a busy few weeks for employment law in the news: from striking junior doctors to high-heel wearing (or not) receptionists and that’s before we even get to the employment law implications of a potential exit from the EU. Before you spring for the delete key, don’t worry, this bulletin is a Brexit-free-zone. I can’t guarantee that it will be next month, though…
Entirely coincidentally, however, this month’s round-up does contain two cases involving human rights:
Employee handbooks – what is contractual and what isn’t?
An employee handbook typically sets out the procedures that an employer has in place for dealing with issues such as misconduct, poor performance and absence. Some issues dealt with in the handbook will be part of the employee’s terms and conditions of employment and others will not. The distinction is important because any change to contractual terms will generally need to be agreed with the employee, whereas non-contractual procedures can be changed whenever the employer feels it is appropriate.
In Department for Transport v Sparks, the handbook provided that absence management policies would not be instigated in respect of short-term absences until the ‘trigger point’ of 21 days’ absence was reached. The employer sought to amend this threshold but was challenged in the High Court by the employees’ trade union. The High Court granted an injunction preventing the change from taking place and this has now been upheld by the Court of Appeal.
The employer tried to argue that the section dealing with absence management was not ‘apt’ for incorporation into the contract but the Court of Appeal disagreed. The wording used by the employer had the ‘distinct flavour’ of contractual entitlement and made clear that absence procedures would be commenced ‘only if’ the employee had exceeded the trigger point of 21 days’ absence. There was no reason to see this as anything other than a contractual entitlement, which meant that the policy could only be changed by agreement.
To avoid a similar problem, employee handbooks should be clear which entitlements and requirements are intended to have contractual effect, and which are not. Sounds like a prompt to have your own handbook reviewed to me…
The extent to which an employee is able to express his or her religious beliefs in the workplace is a sensitive and controversial issue. In Wasteney v East London NHS Trust an employee – an evangelical Christian – argued that she was discriminated against on the basis of her beliefs when she was disciplined for the way in which she dealt with a more junior Muslim colleague. The colleague complained that she had been pressured into attending church services and that the employee had prayed with her and given her a book about the conversion of a Muslim woman to Christianity.
The Employment Appeal Tribunal agreed with the Tribunal that there had been no discrimination. The employee had been warned in the past about the need to preserve proper professional boundaries when discussing her faith at work and it was this issue that had concerned the employer. The Muslim colleague was in a junior position and complained of feeling that she was being ‘groomed’ by the employee. The employer was entitled to find that the employee had subjected her colleague to inappropriate and unwanted conduct. The written warning that was eventually given was not an act of religious discrimination or harassment.
In particular the EAT rejected an argument based on Article 9 of the European Convention on Human Rights which covers the right to freedom of thought, conscience and religion. That did not, said the EAT give the employee “a complete and unfettered right to discuss or act on her religious beliefs at work irrespective of the views of others or her employer”. These matters come down to balancing different – often conflicting – rights, and whilst the outcome here was sensible, it is not always easy to predict safely what the correct approach should be.
Privacy and disciplinary procedures
Another human rights issue arose in Garamukanwa v Solent NHS Trust – this time in respect of the right to respect for private life and correspondence under Article 8 of the Convention. The employee was accused of conducting a personal vendetta against two colleagues following the ending of his relationship with one of them. He accused them of forming an inappropriate workplace relationship and a number of malicious emails were sent – from several anonymous accounts – to a large number of the employer’s staff. One of the victims of the campaign reported the employee to the police alleging that he was behind the malicious emails. He was arrested and questioned but not charged. However, the police did collect evidence from the employee’s own mobile phone which contained photographs and personal emails sent by the employee to the complainant. At the conclusion of the investigation the police handed this material over to the employer.
The employer then conducted its own investigation and concluded that the employee was indeed responsible for the malicious emails that had been sent. They reached this conclusion based on the evidence handed over by the police, which included a photograph of a page from a notebook showing details of the anonymous email addresses used in sending the malicious messages. The employee was dismissed. Perhaps unwisely, he brought an unfair dismissal claim, which was rejected by the Tribunal.
He appealed on the basis that the employer should not have used the private correspondence and photographs that the police had taken from his phone. He claimed that this amounted to a breach of his human rights under Article 8 and rendered his dismissal unfair. The EAT disagreed. The employee had no legitimate expectation that the evidence gathered by the police would be private. In particular the correspondence between himself and the complainant was sent after she had complained about his behaviour and he was not entitled to control what then happened to it.
In any event, the evidence handed over by the police was clearly relevant to serious allegations of misconduct made against the employee. If the employer’s use of that evidence did interfere with his right to privacy, then the interference was justified by the need to protect other employees from his unwanted conduct. The finding of a fair dismissal was upheld.
The Government has announced a ‘call for evidence’ relating to the practice of requiring employees to agree to restrictive covenants in their contracts of employment limiting the extent to which they can work for a competitor once their current employment has ended. The Government is worried that preventing employees from leaving to work for a competitor may have the effect of stifling innovation.
As the Government acknowledges, however, there are already limitations on the extent to which an employer can prevent former employees from working for a competitor. The Courts have long held that such clauses could amount to a restraint of trade and therefore be unenforceable on public policy grounds. The key question is whether the clause protects a legitimate business interest and is reasonable in all the circumstances.
In Bartholomews Agri Food Ltd v Thornton, the former employee was an agronomist – crop scientist – who sought to work for another employer in broadly the same, ahem, field. His contract of employment said that he could not – for a period of six months – work for another business providing services to the former employer’s customers or competing with the former employer over a wide geographic area covering Sussex, Kent, Hampshire, Wiltshire and Dorset.
The High Court rejected an application for an injunction preventing him from working for his new employer. The non-compete clause had been imposed from the start of his employment – when he was a much more junior member of staff for whom such a restriction was wholly inappropriate. That meant that the clause was unreasonable when it was first agreed and therefore could not be enforced. An unenforceable term did not become enforceable simply because the employee was promoted to a position where it might have been reasonable.
In any event, the clause was too widely drafted because it sought to prevent the employee from working with any of the clients of the former employer – irrespective of whether he had had any personal dealings with them. The evidence showed that he had in fact just worked for a small number of the former employer’s clients and so the attempt to prevent him from supplying competing services to any of them was disproportionate.
The main lessons to learn here are that if you are going to have post-termination restrictions, they need to be very carefully and thoughtfully drafted, and ideally they should be reviewed and renewed as employees progress through the ranks of seniority.
… and Finally
The National Living Wage came into force at the beginning of April at the rate of £7.20 per hour for those aged 25 and over. However, stories are already spreading that employers are seeking to meet the cost by cutting down on other benefits. That can itself be dangerous – workers are entitled not to be subjected to any detriment because they qualify for a particular rate of the minimum wage and employers who penalise employees by increasing their basic pay but reducing other benefits may find themselves in the Tribunal.
This hasn’t stopped several large chains making changes to their benefits in a suspiciously coincidental time-frame – often with explanations which are ostensibly unrelated to the introduction of the National Living Wage. It will be interesting to see whether any claims emerge, but in the meantime, employees considering changing benefits to compensate for the introduction of the National Living Wage should tread carefully.