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Case law update – November 2017

Here is a round-up of the recent case law

Monitoring workers’ emails (Barbulescu v Romania) – this case went to the European Court of Human Rights’ who decided the employer had acted lawfully to monitor the employee's Yahoo messenger account. The employee then appeal to the Grand Chamber who reversed the previous decision by deciding that workers have a right to respect for privacy in the workplace and awarded the employee compensation.

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Advice – so if you monitor employee emails, you need to tell employees their communications might be monitored even if you have told them their work computers cannot be used for personal purposes.

Constructive dismissal and changing shift patterns (Gregory v Royal Mail) In September 2017 Mr Gregory won £22,000 in compensation for his constructive dismissal claim. In this case Mr Gregory signed his agreement to work a new Monday – Friday working pattern so that he could see his daughter at weekends. Mr Gregory’s employment contract was not changed. In 2015, Royal Mail started a restructuring exercise and asked employees to indicate their preferred working hours and as Mr Gregory was on holiday, his union representative picked a duty requiring Mr Gregory to work three Saturdays a month. On discovering what had happened, Mr Gregory objected and submitted a new flexible working request, which was rejected in the first instance and at appeal. After some time off sick, a formal grievance, and a phased return Royal Mail advised that Mr Gregory that he must work three Saturdays a month and Mr Gregory resigned. At the tribunal for unfair dismissal the Judge said “it was not physically impossible for Royal Mail to maintain Mr Gregory Monday to Friday working pattern, it was merely unsatisfactory, inconvenient, and more costly”.

Advice - This is a reminder that care must be taken when considering flexible working requests, particularly when they relate to childcare arrangements and if the Company wants to make a unilateral changes to employment contracts, this should be done with employee agreement, wherever possible.

Tribunal fees reversed (R v Lord Chancellor) as has been widely reported the Supreme Court agreed that it was unlawful to charge Employment Tribunal fees. As a result, fees are no longer payable by a Claimant on bringing an Employment Tribunal claim and all those Claimants who had paid tribunal application fees are to be reimbursed.

A week’s pay (University of Sunderland v Drossou) – In this case the EAT decided that employer pension contributions are to be included in the calculation of a week’s pay. This will currently only have an impact on tribunal cases where there are claims for statutory redundancy payments, basic award for unfair dismissal and failure to inform and consult under TUPE or collective redundancy and any schemes Companys have which refer to the statutory definition of a week’s pay.

Termination Payments: according to the new Finance Bill from 6 April 2018 all notice pay will be taxable and employer’s national insurance contributions will be payable on termination payments in excess of £30,000.

Forthcoming legislation
As for forthcoming legislation, the biggest one on the horizon is the General Data Protection Regulations (GDPR) due to come into effect on 25 May 2018.

This Regulation will harmonise data protection law across the EU and is extended it to include all foreign companies processing the data of EU residents. It will set a higher standard for data protection and impose stricter penalties for non-compliance. I will be focusing on this, the implications for employers and what you need to do to prepare for it, early in 2018.

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