What’s new this month?
With the summer holidays coming to an end a sense of normality descends upon us and, with this in mind, our next round of HR Breakfast Club sessions will be taking place this month! The topic for discussion will be “redundancy” and in addition to looking at some interesting cases we will be giving you plenty of practical tips on dealing with a redundancy situation.
The sessions will be taking place in Peterborough and Huntingdon on the following dates:
- Wednesday 27 September 2017, Buckles Solicitors LLP in Peterborough
- Tuesday 3 October 2017, Buckles Solicitors LLP in Peterborough
- FULLY BOOKED – Wednesday 4 October 2017, The Holiday Inn Racecourse in Huntingdon
As usual places are limited and are expected to go quickly so if you would like to attend, and have not already secured a place, you will need to do so quickly!
We are also pleased to have teamed up with the Cambridgeshire Chamber of Commerce to present an employment law update for its members in respect of caselaw developments over the last 12 months. This will be taking place on 20 September 2017 and if you would like to attend you can find out further details and booking information here.
Anything interesting in the news?
HOT OFF THE PRESS! For those of you who attended our HR Breakfast Session in March of this year you will recall that we considered the issue of social media in the workplace and one of the cases we discussed was Barbulescu v Romania. In this case Mr Barbulescu was employed as an engineer by a Romanian company. The company had an email policy that strictly prohibited its employees from using its computers, photocopiers, telephones etc for personal purposes. Mr Barbulescu sent messages to his family members during work time on his work computer using Yahoo Messenger. His employer terminated his employment for breaching company policy.
Mr Barbulescu challenged the decision through the domestic Courts and the European Court of Human Rights alleging that the employer’s action, i.e. monitoring his emails, breached his right to respect for his private life. However, his claims were dismissed and the ECHR held it was reasonable for an employer to verify an employee was working during working hours.
However, this decision has now been reversed on appeal by a division of the ECHR. It has been held that a right to a private life may also include professional activities and a worker therefore has a right to respect for privacy in the workplace. Whilst an employer may have internal regulations, as in this case prohibiting personal internet use, it was not clear prior to the monitoring whether the worker had been informed his communications would be monitored. As such, it was held that Article 8 had been breached.
This case demonstrates that in addition to having up to date social media and IT policies in place, which clearly detail what is and is not acceptable by workers, these policies must be communicated to staff and usually where communication is to be monitored staff must be informed beforehand. We can help you draft these policies if you need a hand, just let us know.
Any new cases to be aware of?
There are a couple of interesting cases that I thought I would highlight this month.
Firstly, the case of Agoreyo v London Borough of Lambeth is a High Court decision which considered whether the suspension of a teacher for allegedly using unreasonable force on pupils (dragging a pupil down a corridor and carrying a pupil out of a classroom) was a neutral act or amounted to a repudiatory breach of contract.
Ms Agoreyo was suspended by the school pending an investigation into the allegations. The letter of suspension set out the allegations and made it clear that suspension was a neutral action and did not constitute disciplinary action. At the time she was suspended Ms Agoreyo tended her resignation citing reference to a number of “unpleasant issues.”
The High Court held that the decision to suspend her had been a knee-jerk reaction. The school had not spoken with her prior to her suspension to obtain her version of events in respect of the allegation and they had not apparently considered any alternative to suspending her. As such, they accepted that the school had been in repudiatory breach of her contract and her resignation amounted to a constructive dismissal.
The second case to highlight this month is the ECJ guidance in Ville de Nivelles v Matzak which considers whether time spent on standby (or on call) constituted working time. In this case Mr Matzak was engaged as a firefighter and for one week out of every four he was required to be on standby during evenings and at the weekend. During this time he had to be contactable and able to report to the fire station within 8 minutes. This required him to live near the fire station and restricted his activities when on call. This time was unpaid. Mr Matzak brought a claim alleging that the time he was on standby amounted to working time under the Working Time Directive and he should therefore be paid for this.
The ECJ concluded that it is for each member state to determine whether the time spent on stand-by constitutes working time and this should be done on a case by case basis. The ECJ offered guidance that member states should consider “the quality of time that the worker may enjoy when on that type of duty” and the worker’s “ability to devote himself to his own interests and family” during that time. In this case the overriding objective was the quality of the time spent by the worker and not proximity he was required to be to the workplace.
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