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the employment law briefing
April 2016 Review
Welcome to our monthly review of employment law news. In February I reported the decision of the European Court of Human Rights in a Romanian case concerning the use of emails and a Yahoo Messenger account. Mr Barbulescu had used the app for highly personal communications. The ECHR held that they were lawfully accessed by his employer, in particular because the employer had a right to make enquiries to establish that an employee was working during working hours. As Katharine Kelly reports this month, a similar approach has been taken by the Employment Appeal Tribunal in the case of Garamukanwa v Solent NHS Trust.
Newcastle United are back in the news this month, this time in connection with their awful treatment of Jonas Gutierrez when he disclosed that he was suffering from testicular cancer. Susan Stafford looks behind the headlines to explore the basis of his successful employment tribunal claim. Incidentally, it remains a mystery to me why this claim was allowed to proceed to a contested hearing, thereby causing reputational harm to the Club which must have far exceeded the value of the employment claim.
NEW OFFER: Throughout May and June we are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money?! We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / email@example.com) or Susan Stafford (0151 239 1009 / firstname.lastname@example.org).
This month's news:
Since the abolition of the default retirement age some time ago, questions have arisen regarding what happens to employee benefits should they decide to remain in employment over a certain age.
In the recent case of Smith v Gartner UK Ltd, Ms Smith (the Claimant) was absent from work on the grounds of sickness and had been receiving payments under Gartner UK Ltd's (the Respondent) Permanent Health Insurance (PHI) scheme during this time. In line with the terms of the PHI policy that the Claimant had originally signed up to in 2003, these payments were stopped when the Claimant reached the age of 60.
Of further note is the fact that the Respondents had in fact introduced a new PHI scheme in 2007 which provided employees with cover until the age of 65.
In response to the cessation of her benefits, the Claimant brought a claim for direct age discrimination against the Respondents, arguing that by not continuing the payments beyond the age of 60 they had treated her less favourably as a result of her age and could not justify this decision.
Ms Smith's claim was rejected by the Employment Tribunal and she subsequently appealed to the Employment Appeal Tribunal (EAT) who rejected her appeal on the basis that the reason her payments ceased at the age of 60 was purely because the terms of the policy she had signed up to dictated that this be the case. This was therefore not a decision made by the Respondent and as such could not be deemed an act of discrimination.
The EAT further decided that the Respondent's decision not to extend the benefits of the PHI policy introduced in 2007, could similarly not be deemed discriminatory. As the Claimant was already receiving benefits under the old PHI policy and was not actively working, she did not satisfy the conditions of the new scheme.
In light of the above, Employers could be advised that they are not under an obligation to offer additional benefits in excess of PHI schemes simply to avoid discrimination claims and that cases such as these may very much depend upon the terms of the PHI policy in question. It should also be noted that the Equality Act 2010 does allow Employers to cease offering PHI in addition to other insured benefits, at the age of 65 or the employee's state pension age (whichever is the higher).
Beware however that this area of the law may well be subject to change in the future given the very different decision reached by the Employment Tribunal in 2013 in the case of Witham v Capita Insurance Services Ltd.
One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them. Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?
In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee's right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.
The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.
Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.
Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of 'inappropriate sexual behaviour' in the workplace. Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour. Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.
Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him. Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses. In addition a fake Facebook profile was set up and around 150 of the Respondent's employees were added to it. It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her.
The employment contract sets out an employee's rights, responsibilities and duties within the employment relationship. However, as an employer, you also need a set of policies complying with the ACAS code on grievance and disciplinary procedures, paid holiday and maternity and paternity leave. The general position and assumption of most employers are that policies are non contractual and therefore an employee will be prohibited from bringing a breach of contract claim in the event that their employers fail to adhere to any of their policies.
However, the above is not conclusive and the Court will often consider a number of factors in considering whether policies contained in company handbooks will be viewed as contractual. Policies that infer statutory rights such as sickness and holiday rights will be deemed contractual on the basis that the employer is obliged to provide full particulars of their employment under the Employment Rights Act 1996. However with non-statutory rights the Court will try to ascertain what the intentions of the parties were when entering into the agreement.
Whether a policy is contractual became a point of contention in Sparks v Departments for Transport  EWHC 181 (QB) which concerned the contractual validity of a decision by several government agencies to tighten up their sickness absence rules by reducing the amount of time before sickness procedures were triggered.
The former Newcastle United midfielder Jonas Gutierrez has won a disability discrimination claim against his former club after being dropped from the club as a result of his battle with testicular cancer.
Gutierrez who has previously been described as one of Newcastle's most valuable players signed a new four year deal with the club in 2011. His contract provided a clause providing for an automatic one year extension if he played 80 premier league games. Gutierrez was a regular first team player although following his cancer diagnosis and subsequent treatment the club informed him that he wasn't going to be retained given that he had only reached 78 of the 80 games that were required to trigger the extension. Gutierrez argued that the club purposely didn't select him for premier league games in an attempt to manipulate the extension trigger as they no longer wanted him at the club.
Gutierrez made four claims under the Equality Act 2010 which makes it unlawful to discriminate against workers on the grounds of mental or physical disability which are as follows.
The tribunal dismissed claims two and four largely because the effects of his cancer were no more disruptive to his ability to work that the common injuries suffered by footballers. Claim 1 was upheld because the tribunal inferred from the facts that the club were deliberately managing the claimant's selection to prevent him triggering the option of extension. They further went on to say that the reason why the respondent had managed the claimant's selection was because they had no longer wanted him at the club because of his cancer.
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