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Employment Law Newsletter - January 2018

 
 

In this issue ...

  Can you use CCTV to monitor employees?   Are two breaks of 10 minutes as good as one of 20?  
  Protected conversations   Non-renewal of a fixed-term contract  
  If an employer refuses to pay holiday pay, does the worker lose their entitlement at the end of the holiday year?  
 

Can you use CCTV to monitor employees?

Human Rights. Article 8 of the European Convention on Human Rights (ECHR) protects the right to respect for private and family life. In Lopez Ribalda & Ors v Spain a supermarket relied on images from covert surveillance cameras, which zoomed in on all checkouts, to dismiss five workers for theft.

The ECHR found that Article 8 had been breached because the video surveillance was a considerable intrusion into the employees' private lives, which they couldn't evade because they had to go to work. All staff were subject to the surveillance not just the suspected thieves. The employer could have prevented stealing by telling the staff about the cameras and their personal data rights.

This case does not ban monitoring or covert surveillance. So how do you do it?

What you should do

Create a policy. It should deal with the use of the internet, potential monitoring and your employees' rights.

Provide employees with a point of contact for any queries.

Be wary of monitoring unless you suspect misconduct. Record who you suspect and why.

Consider the aim of your investigation, the method of achieving it and whether less intrusive means could achieve the same outcome.

Consider each case on its merits, record any steps you take and arrange for a senior person to review the process.

Comply with data protection principles. Note that once the GDPR is introduced on 25th May 2018 you will need justify processing personal data, which will include stating the business's legitimate interests.
We have a note on the effects of GDPR here.

 

Protected conversations

How protected are they? Pre-termination discussions between employer and employee are inadmissible in ordinary unfair dismissal cases unless there has been improper behaviour. What if both parties wish to rely on the discussions or a party only wants to rely on part of it?

Protection from admissibility cannot be waived by agreement. That protection includes the very fact that pre-termination negotiations have taken place, not just the details of those negotiations. A party cannot rely on part of the discussions, for example to support disciplinary action, but insist that the rest be excluded.

However the Employment Appeal Tribunal identified an exception in Basra v BJSS Limited. If the date of termination is in dispute then the tribunal may hear evidence about protected conversations to determine that issue.

What you should do

Remember that not all protected conversations will end successfully in a settlement agreement.

Be aware that the content of previously protected conversations may be revealed where claims other than unfair dismissal arise.

Ensure that your employee understands that you are asking them to have a protected conversation and what that means. Consider confirming their understanding by writing a covering letter.

Plan what you will do if you don't reach an agreement.

 

Are two breaks of 10 minutes as good as one of 20?

Many of you will employ workers who work unsupervised, perhaps on-call or just away from the work place. Their activity may fluctuate unpredictably throughout their working day so scheduling breaks may be difficult. Under the Working Time Regulations 1998, adult workers have the right to a minimum rest break of 20 minutes in the course of any working day that exceeds six hours.

In Crawford v Network Rail Infrastructure Ltd a signaller was required to monitor a railway line continuously and take 'naturally occurring breaks'. In total his breaks lasted more than 20 minutes but each individual break was shorter.

The EAT said that Mr Crawford should have been permitted a proper uninterrupted break of at least 20 minutes when he was free from work. The employer could have arranged a break by providing a relief signaller. Network Rail had breached its obligation.

What you should do

Actively ensure that all your workers can take a continuous rest break of at least 20 minutes.

Review working arrangements so that you can check and have a record of the breaks that are taken.

If necessary, arrange for work to be covered while people take a break.

 

Non-renewal of a fixed-term contract

Royal Surrey County NHS Foundation Trust v Drzymala reminds us that failing to renew a fixed-term contract is the same as a dismissal. Ms Drzymala worked as a locum on a succession of six-month fixed term contracts. The trust gave Ms Drzymala three months' notice of her contract expiring but it didn't tell her that she could appeal nor whether there were any alternative roles. That was unfair. The law on fair dismissal applied in the normal way and the Trust needed a potentially fair reason and should have followed a fair process.

What you should do

Ensure, when deciding not to renew a fixed term contract, that you have a fair reason for your decision (such as the need for the role ending).

Formally invite the employee to a meeting to discuss the reason for not renewing the contract.

Discuss the reason for not renewing the contract and provide an opportunity to appeal.

Be aware that those continuously employed for four years or more on a series of successive fixed-term contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed-term contract can be objectively justified.

 

If an employer refuses to pay holiday pay, does the worker lose their entitlement at the end of the holiday year?

The European Court of Justice (ECJ) decided in King v Sash Windows that a salesperson who worked for commission only was a worker who was entitled to paid annual leave of at least four weeks (the EU entitlement). In a far-reaching judgment it said that a new holiday year starting did not prevent Mr King from exercising his rights. Where UK law said that the worker loses the right it should be disregarded because it was incompatible with EU law.

The ECJ said that the back pay claim could go back to 1996, when the Working Time Directive came into force (the Working Time Regulations 1998 were implemented two years late). This could be distinguished from long-term sickness absence cases where carry over into other holiday years can be limited. Sash Windows benefitted from Mr King not taking holidays. An employer that does not allow a worker to take paid annual leave must bear the consequences.

This case increases the risk to businesses who do not provide paid holiday to staff treated as self-employed, particularly those in the gig economy. In those cases the law that bars claims for unlawful deductions from wages where more than three months has elapsed between underpayment and the two–year limitation on claims may contravene EU law.

And...

Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.

 
 
 

If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

www.collinsongrant.com/hr

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.