Covert Recordings:

• Lopez Ribalda & Others v. Spain

This was a European case which addressed the issues of whether or not an employer’s covert recording of an employee as part of an investigation into suspected theft was either a breach of Article 6 of the European Convention of Human Rights (right to a fair trial) or Article 8 (right to respect for private life). The employer utilised the covert recording during the internal process and wanted to rely upon it at trial.

The European Court considered a number of factors namely proportionality of the video surveillance including whether employees had been notified that they could be monitored by the company; the extent of the monitoring; the degree of intrusion; and whether the employer had legitimate reasons to carry out the surveillance.

In this case the surveillance lasted for only 10 days and was limited to a specific area of the company’s store which was also open to the public. The Court found that the employer did not go beyond what was necessary and that their reasonable suspicion of serious misconduct over a number of months and the extent of the losses was justification for the monitoring. 

This is a good example of when employers have the ability to undertake such investigations however there will be a need to show a degree of proportionality and justify the steps taken.

• Phoenix House Ltd v. Stockman

This case reverses the scenario above, addressing a common issue that employers face during the course of internal investigation and disciplinary proceedings, namely where employees have secretly recorded the content of the internal hearing.

The facts of the case are that Ms Stockman accepted a more junior role rather than being made redundant following a restructuring within her organisation. She subsequently complained about treatment she had suffered at the hands of her manager claiming that she was being treated less favourably.  This resulted in an investigation process and at the investigation meeting Ms Stockman covertly recorded the conversation.

Ms Stockman did not advise the company that she had made this recording and it only came to her employer’s attention once claims were issued in the Employment Tribunal proceedings.

Ms Stockman was successful with her unfair dismissal case but the Tribunal took the decision to reduce her compensation by 10% to reflect the fact that there was a small chance she may have been dismissed fairly as a result of secretly recording the meeting with HR. The company appealed their decision arguing that her compensation should be reduced to zero due to the fact she would have been dismissed for gross misconduct due to a breakdown in trust and confidence as a result of the recording.

The EAT rejected the appeal and refused to interfere with the 10% reduction made commenting that a secret recording would not automatically undermine trust and confidence in the relationship but would usually amount to misconduct, and that Tribunals should look at the reasons for the recording and at what was recorded i.e. there maybe a difference of approach/outcome between recording an internal meeting where records will be made in any event and recording highly confidential information about the business. 

Employers are therefore advised to ensure there is a policy is in place that makes it clear that covert recordings would be classed as serious misconduct issues and may result in dismissal without notice. Employers should at the outset of any internal meeting specifically ask the employee if they are making a recording. If an employee disobeys a clear instruction this could undermine his/her credibility and ultimately result in a reduction in any Tribunal award made to them. 

Holiday pay:

• The Harper Trust v. Brazel

This is a case that has particular relevance to schools and related to Ms Brazel who worked as a part time music teacher at a school although she did not work every week. 

The case concerned her holiday entitlement based upon a zero hour contract.

The contract provided to her entitled her to the statutory minimum 5.6 weeks annual leave which was calculated on the basis of the ACAS recommended 12.07% of hours worked. 

Ms Brazel brought a claim contending that the holiday pay should be calculated using her average weekly earnings over a 12 week period immediately prior to the holiday under the Working Time Regulations and sections 221-224 of the Employment Rights Act 1996. 

If the Working Time Regulation calculation was applied Ms Brazel would have received an entitlement equivalent to 17.5% of her term time pay therefore putting her in a better financial position. 

At both the EAT and the Court of Appeal Ms Brazel successfully overturned the Tribunal’s decision with both Courts finding that her holiday pay should have been based upon the 12 week average method.

The EAT found that there was no requirement to pro-rata leave entitlement of part time employees to avoid a windfall for term time only workers and avoid full time employees being treated less favourably than part timers.  The EAT made the point that whilst there is protection for part time workers being treated less favourably the same did not apply in reverse.

The Court of Appeal upheld the EAT’s decision referencing the fact that there is no need for a pro rata principle for part year workers i.e. workers who are employed all year round but did not work every week. 

It is likely that many schools and indeed any organisation that employ zero hour staff who do not work full years will have to revisit their method of calculating holiday pay away from the 12.07% formula.   

• Chief Constable of Northern Ireland Police v. Agnew

Another case relating to holiday pay addressed the issue of a series of reductions from wages in relation to unpaid holiday pay.

The Court of England and Wales had found ultimately that the ability of claimants to claim for unpaid holidays related only to the first 4 weeks of leave and that if there was a break of 3 months between holidays claimed for then this would break the series of deductions. 

This Northern Irish case has found that a gap of more than3 months in a series of deductions did not break the series allowing employees to claim for greater unpaid monies.

The Court held that to allow such a break preventing the employee relying upon the series of deductions would be both arbitrary and unfair and that there was nothing in the Northern Irish Legislation (Employment Rights Northern Ireland Order 1996) which imposed the limit on the gaps between particular deductions making up the series. 

Whilst the case is on Northern Irish law and therefore not formally binding on Tribunals in England and Wales, the wording of the ERO and the Employment Rights Act 1996 are identical.  It is therefore likely that the finding will provide strong authority in any future appeal of the current position in England and Wales. 

Grievance Issues:

• Base Childrenswear Ltd v. Otshudi

This EAT decision has implications in relation to 2 important aspects, namely (i) the fact that findings of harassment could give rise to substantial injury to feelings award and (ii) the failure to follow the ACAS Code of Practice in relation to grievance issues raised post termination. 

The employee was believed by her line managers to be stealing from the business and as such, to avoid tarnishing the employee’s name, the company took the decision to dismiss her by reason of redundancy.  This provided the employee with a dignified exit, notice pay and a non-harmful reference. 

The employee subsequently made allegations of discrimination and raised a grievance post termination.  The company ignored her grievance and issued a response to the effect that her dismissal was for financial/economic reasons. 

During the course of the proceedings the company changed its position to bring in the allegations of theft and the fact that redundancy had been referenced to minimise the potential confrontation.

It was concluded that the allegations of theft, whilst genuine, were subsequently supported by evidence that the investigations were a product of the manager’s stereotypical views of black Africans as being likely to steal.

The Tribunal award for injury to feelings was £16,000 together with an uplift of 25% for the Respondent’s failure to respond to the grievance and therefore failure to comply with the ACAS code in this regard. 

The EAT declined to overturn the Tribunal’s decisions in this regard.

It is an important lesson in relation to post-termination grievances which often overlook the ACAS code due to the employee no longer being in employment. This case clearly shows that when it comes to remedy a failure to deal with grievance issues properly, even post termination ones, can result in significant uplifts in compensation. 

Discrimination:

• Wood v Durham County Council

This case provides a further reminder that not every condition will amount to disability as there are a number of excluded conditions in the Equality Act 2010 such as addictions to nicotine, alcohol or other substance, a tendency to set fires or steal, or a tendency to physically abuse other people. 

The EAT held that it was not a disability discrimination to dismiss an employee with PTSD and associated amnesia for shoplifting due to the fact that the employee was dismissed because he had a tendency to steal and this was excluded under the Equality Act.

However employers should be aware that a condition apparently caused by an excluded condition could still be a disability that is protected, with the common example of ill health that may materialise from certain addictions. 

• Meier v. BT

A Northern Irish Court of Appeal case which considered the issue of whether the employer had sufficient knowledge of a job applicant with Asperger’s syndrome and other disabilities to trigger the obligation to make reasonable adjustments in relation to a psychometric test.

The recruitment process undertaken involved a number of stages including an online application, situational strengths test, a Skype interview and attendance at an assessment centre and interview. 

The Claimant completed the online application during which he stated that he was disabled.  He also confirmed details of his condition on a separate diversity form which was attached to his application.  However the information was not relayed to the decision makers at BT.

Mr Meier was subsequently asked to undertake the situational strengths test and had his application rejected due to his low score. 

The Claimant argued that the test was not an appropriate mechanism to test someone with his condition and he requested that BT make reasonable adjustments so that he could progress to the next stage where his skills could be properly tested. 

BT refused to back down stating that the test formed part of the minimum requirements of the role despite the fact that they had not advertised the role as such and also ran a national scheme offering disabled candidates an interview where they met job minimum requirements.  BT also argued that it was Mr Meier’s responsibility to tell them what adjustments he needed. 

The Court found that the test, which is supported by evidence, put people with Mr Meier’s condition at a significant disadvantage compared to other candidates without the condition and as such they found that it would have been reasonable for BT to disregard Mr Meier’s scores in the test and to interview him instead to see whether he had the competencies for the job. 

Mr Meier was awarded the sum of £1,500 for injury to feelings as well as loss of earnings.

This is a reminder of adjustments that need to be considered to recruitment processes for candidates with disabilities.  It is also essential to ensure that communication of conditions is made to the relevant parties taking the decisions throughout the recruitment process as clearly BT had knowledge and simply chose to ignore it. 

For more information on any of the developments above or indeed any employment related matters please contact Louise Carr at lca@nexussolicitors.co.uk or Craig McCracken at cmc@nexussolicitors.co.uk or call 0161 819 4900.