February 2016 bulletin

February. The month of hearts, chocolates and helium balloons.

Even if your offices aren’t filled to the brim with roses, Valentine’s Day should remind every employer that love can – and often does – blossom at work. There’s no getting away from that, and it’s not necessarily a bad thing. Happiness breeds productivity.

But when two workers are in a relationship, there’s always potential for distraction, tension, jealousy, conflicts of interest. What if the relationship breaks down? You could be left with two employees who can no longer work together, or who draw you into a claim for bullying, harassment or constructive dismissal (for example).

The key point is: keep an eye on what’s happening around you and have policies that cover workplace relationships. That doesn’t mean a blanket ban on employees getting together. But it’s worth having some company rules that require couples to behave professionally and to understand what’s expected of them while they’re at work.

Monitoring employees’ messages

Barbulescu v Romania
Mr Barbulescu was dismissed for breaching his employer’s rules on the personal use of the internet at work. On his work-related Yahoo account were found to be messages to his brother and fiancée about his health and sex life.

Was it right for the employer to have accessed those messages and for them to have been used in the disciplinary and subsequent court proceedings? Mr Barbulescu argued that there had been a breach of his right to respect for private life and correspondence.

The case went to the European Court of Human Rights which found against Mr Barbulescu. Although workers have a reasonable expectation of privacy at work, this isn’t absolute. The employer had a total ban on the private use of work equipment, and this was an important fact. It had accessed Mr Barbulescu’s Yahoo account (set up for work purposes) believing that it contained business-related messages only, and for the purpose of checking that Mr Barbulescu was fulfilling his work duties. This was a proportionate interference with his rights. The employer hadn’t accessed other data and documents stored on the computer, and the monitoring was therefore limited in scope and was proportionate.

So, far from living up to some of the headlines it generated, this case really came down to basic rules about monitoring and data protection. Yes, employers are entitled to check that their employees are fulfilling their working duties, but only if done properly and it’s proportionate. Making clear what your position is on private communications at work is the first step. Then it’s about having a clear monitoring policy that’s communicated and carried through.

Legal highs at work

You probably have an alcohol and drugs policy. But does it cover ‘legal highs’?

These are substances that imitate the effects of illegal drugs. They’re generally stimulants, ‘downers’ or hallucinogens, and their use can have serious consequences. According to Acas, there were 129 reported deaths in England, Scotland and Wales in 2014 where new psychoactive substances were implicated.

If you haven’t yet read Acas’; guidance on dealing with legal highs at work, take a look here.

The broad advice is to:
– deal with the use of legal highs in the same way as you would other drugs or alcohol, and build this into your policy. Remember that even though legal highs aren’t unlawful, you can still control their use in the same way as you ban or restrict the consumption of alcohol at work.
– think about focusing in your policy on the effect the drugs have, rather than on the drugs themselves. That should make it easier to identify legal highs during drug testing; the compounds that make up legal highs are changing all the time.
– educate staff on the signs of drug use
– encourage users to get help.

Rights for zero hours workers

As of 11 January 2016, people working under zero hours contracts have better legal protection.

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 are now in force. They make it automatically unfair for an employer to dismiss a zero hours contract employee for failing to comply with an exclusivity clause, irrespective of their length of service. Workers (including employees) have the right to bring a claim if they have been subjected to a detriment for the same reason.

The Regulations follow last year’s banning of exclusivity clauses – those terms in zero hours contracts that tie workers into working only for that employer. Employers who still try to enforce this sort of arrangement could now find themselves on the end of a claim.

Instruction to speak English wasn’t discriminatory

Kelly v Covance Laboratories

It can take a brave employer to ban the use of certain languages in the workplace. But in this case, the employer was found to have a legitimate reason for insisting on English-only.

Russian-born Ms Kelly worked at a lab that carried out animal testing. After being told that she was not allowed to speak Russian at work, she brought claims including race discrimination against her employer.

The reason this claim failed at tribunal and at the Employment Appeal Tribunal (EAT) was because the instruction to not speak Russian at work was not about race or national origin; it was about security. Covance had been the subject of unpleasant attention from animal rights activists and was concerned by Ms Kelly’s behaviour. She used her mobile phone at work, disappeared into the bathroom with her phone for excessive periods and spoke on her phone in Russian. There were fears that she might be an animal rights infiltrator and it was felt necessary that English-speaking managers in the business could understand conversations that were taking place.

Although it can be discriminatory to impose certain language requirements at work, in this case another employee in similar circumstances, speaking another language (apart from English), would have been treated in the same way as Ms Kelly. There was no discrimination.

Her harassment claim failed on the same basis: the instruction to not speak Russian wasn’t given because of Ms Kelly’s race or national origin. It was because of her behaviour in the context of her employer’s operations and the risks it faced. In addition, the instruction didn’t have the effect or purpose of violating Ms Kelly’s dignity or creating an adverse environment for her (essential elements of harassment).

Treat this case with some caution. You’d need a really good business reason that justifies a restriction or ban on the use of certain languages at work. And you’d need to apply your language requirement fairly across your workforce, underpinned by a clear policy.

Disclosure of criminal convictions

R (P and A) v Secretary of State for Justice

The High Court has found fault with the system of criminal records checks in England and Wales, saying that it’s incompatible with the right to privacy and family life under the European Convention on Human Rights.

Under the current scheme, two or more convictions have to be disclosed, whatever the circumstances. This won’t always be proportionate. The offences might have happened a long time ago and might have been very minor, but if there’s more than one conviction, these must be disclosed when applying for certain jobs – indefinitely. And this can lead to people being penalised thoughout their lives for mistakes they made when they were younger.

Two people brought a case arguing that point. One, who wanted to work as a teaching assistant, said that having to disclose details of her conviction for stealing a 99p book in 1999 (while suffering from a mental illness), and a second conviction for not attending court, was disproportionate and breached her privacy. Another claimant had been convicted of two minor crimes in 1981 and 1982. He argued that he shouldn’t have to disclose those convictions years later. They won.

The Home Office might appeal, so watch this space.

An 84-hour working week can be lawful

Matja Kumba T M’bye and others v Stiftelsen Fossumkollektivet

The Working Time Directive says that workers shouldn’t work more than 48 hours per week, unless they opt out of that limit. Workers are also entitled to certain daily and weekly rest breaks.

This case was about therapists at a treatment centre for young people with drug and alcohol problems. Shift patterns were to change so that workers would work for seven days and then have seven days off. Those who didn’t agree to that were dismissed and offered reengagement on the new terms.

The European Free Trade Association Court held that an 84-hour week can be lawful. There is flexibility in the rules to allow for different working patterns in certain types of jobs. Here, in a cohabitant care arrangement, continuity of care was said to be beneficial to patients. That being so, it might have been impossible for these workers (who had opted out of the 48-hour limit) to be given the rest periods to which they might otherwise be entitled. An 84-hour week was not incompatible with the Directive.

The rules on rest breaks, including compensatory rest periods, can be tricky, so get advice on your particular circumstances to check that your workers are getting their full entitlement, and before implementing any changes.

And finally…..

This year’s Oscars. Where to begin?

Claims of a lack of diversity gathered huge pace in a short time, with prominent figures making their views known on the absence of non-white acting award nominees for the second year running.

It’s an issue that crosses very easily into employment law. Every employer could be scrutinised and judged on the characteristics of staff. What if your workforce is underrepresented in one way or another? What if its average age points to a paucity of older workers? Are you missing out on the benefits that diverse workforces can bring?

Our laws should ensure equality of opportunity, and recourse if someone with a protected characteristic (race, sex, age, religion or belief etc) has been treated unfairly. What the build-up to the Oscars has done, if nothing else, is draw attention once again to equality – or the perceived lack of it – still being an issue, everywhere.